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How Much Explanation is Enough? – Update for March 3, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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BECAUSE I SAID SO

Many of us vowed that when we became parents, we would never dismiss our kids’ demand for an explanation with the peremptory ipse dixit “because I said so.” And just as many of us kept that promise only until our children began to talk.

Saidso170303There was a time when a judge only had a statutory sentencing range, and could sentence anywhere within the range on any whim he or she had. The judge could slap someone with 10 years, and the heavy lifting of figuring out where within that 10-year period the prisoner was released fell to the Parole Commission.

The Sentencing Guidelines, now approaching 30 years of age, changed all of that. The judge now did all the work, assigning a criminal history score to the defendant, determining the total offense level in points, and then using a matrix to determine a sentencing range. The range – much narrower that the statutory punishment specified in the U.S. Code – left the court with scant discretion. A crime might carry a 0-10 year statutory sentencing range, but the Guidelines gave the court a sentencing range of 71-87 months.

With the district court’s greater involvement in the sentencing calculus came greater demands that the district court do more than just impose a sentence without an explanation, the “because I say so” approach. After United States v. Booker made the Guidelines “advisory” – giving back to the judges some of the discretion the Guidelines had originally taken away – a collection of Supreme Court cases laid down the requirements that sentences be “procedurally reasonable” (that the Guidelines be calculated accurately) and that they likewise be “substantively reasonable,” in other words, not appear to be too unfair.

Because courts of appeal cannot review a sentence for reasonableness without knowing why the district court decided on the sentence it imposed, appellate courts imposed on trial judges the responsibility to explain their sentencing decisions rather than imposing a sentence simply because the judge says so.

A group hug of legislators is not nearly as cute...
A group hug of legislators is not nearly as cute...

Mark Wireman, a serial kiddie porn offender, had a sentencing range of 210-262 months, due to his lengthy criminal history, and to the child porn Guidelines, which pile on enhancements for number of images stored, for use of a computer, and a host of other offense attributes that apply in virtually every kid porn offense. There is little doubt that society finds child pornography odious. Congress certainly finds it an issue that draws lawmakers of both parties into a group hug and chorus of “kumbaya,” followed by unanimously-passed legislation in which each legislator tries to out-tough the other in being harsh on kiddie porn.

As a result, most of the child porn Guidelines were written not after a reasoned consideration of data but because Congress, in a bipartisan tough-on-porn frenzy, dictated how it should read. More than one court has complained that it should have to pay deference to the Draconian sentences recommended by the child-porn Guidelines, because those Guidelines were not data-driven.

Mark was lucky enough to have a team of public defenders representing him. As a group, federal public defenders deliver spirited and experienced representation seldom seen in retained counsel until one gets to blue-chip law firms. Mark’s defenders wrote a top-drawer sentencing memorandum that the policy underlying the child porn Guidelines was flawed:

First, that § 2G2.2(a)(2)’s base offense level of 22 is “harsher than necessary” under the 18 U.S.C. § 3553(a) sentencing factors; second, that courts should be hesitant to rely on § 2G2.2 because the Sentencing Commission did not depend on empirical data when drafting §  2G2.2; and third, that the Specific Offense Characteristics outlined in § 2G2.2 are utilized so often ‘that they apply in nearly every child-pornography case’ and therefore fail to distinguish between various offenders.

Mark also that his own circumstances – including a traumatizing childhood where he was repeatedly sexually abused by family members and the fact that in this case he shared a relatively small amount of child pornography with only one other – of warranted a downward variance from this excessive guideline range.

The sentencing court said, “Frankly, I’m struggling with a lot of the issues that have been raised in… Defendant’s counsel’s memorandum…” but made no further reference to the filing. Ultimately, the court, concerned with the risk that Mark would keep committing the same or similar offenses, sentenced him within the advisory Guidelines range to 240 months.

This week, the 10th Circuit affirmed the sentence, rejecting Mark’s complaints that the district court ignored his counsel’s sentencing memorandum. Specifically, Mark argued that where the defendant attacked the Guidelines on policy grounds – an attack becoming increasingly common in child sex cases – a district court is obligated to address the claim.

kittyporn160829The 10th disagreed, nothing that while “a district court must explain its reasons for rejecting a defendant’s nonfrivolous arguments for a more lenient sentence,” and while a district court may even “vary from the Sentencing Guidelines based on a policy disagreement with those Guidelines,” the manner in which a district court must explain its reasons for rejecting a defendant’s arguments is not “set in stone across all cases.” Where, as in this case, “the district court has imposed a sentence within the Guidelines, our cases have noted that the district court need not specifically address and reject each of the defendant’s arguments for leniency so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the 18 U.S.C. § 3553(a) statutory factors.”

The Circuit said it was “not persuaded that the principle we note… that a district court need not specifically address and instead may functionally reject a defendant’s arguments for leniency when it sentences him within the Guidelines range — should differ just because the defendant critiques the applicable Guideline itself on policy grounds, as Defendant does in the case before us today. In our circuit, a within- guideline-range sentence that the district court properly calculated… is entitled to a rebuttable presumption of reasonableness on appeal… We would be disregarding the spirit of this appellate presumption if we were to require the district court to defend § 2G2.2 or any other Guideline that leads to such a presumptively reasonable sentence.”

United States v. Wireman, Case No. 15-3291 (10th Circuit, Feb. 28, 2017)

– Thomas L. Root

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1st Circuit Seeks to Limit Application of “Ostrich Instruction” – Update for February 28, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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BURY YOUR HEAD IN A COCKTAIL NAPKIN

A 1st Circuit insider-trading decision last Friday provided some head-shaking at the way the defendants passed the stock tip between themselves, and an interesting consideration of the “ostrich instruction.”

bob170228Bob Bray was a contractor and real estate developer (think “Bob the Builder”). He was also an avid golfer, and became drinking and dining buddies with John O’Neill, a bank mergers-and-acquisitions executive. Over the years, they tipped back a lot of cold ones and ate plenty of burgers. Bob became a family friend, and helped John’s son land a few summer jobs.

From time to time, Bob would ask John for stock tips, and John would suggest certain bank stocks, based on public information. No problem there. But one day in 2010, Bob told John he needed a big financial score so he could afford a large real estate project.

John replied that he knew of several good bank investments, but while he talked, he wrote the word “Wainwright” on a cocktail napkin and slid it across the table. John knew from work that Wainwright was a takeover target, and he had been tasked to do “due diligence” on the acquisition. He also knew that the information was confidential, and that he was duty-bound to keep it that way.

napkin170228Bob the Builder sold everything he had, and as quickly as he could, bought thousands of shares of Wainwright Bank, a local institution. Sure enough, a few weeks later, a big bank announced it was gobbling up little Wainwright, and Bob doubled his money.

Bob was a “go big or go home” kind of guy, which means that his purchase of all of that stock left a really big blip in the trading history. Pretty soon, private regulators started asking questions, then the SEC, and finally the U.S. Attorney.

Bob and John were convicted of insider trading. Last week, the 1st Circuit upheld the conviction.

Much of the appellate decision discusses issues which are interesting enough, but not what we’re writing about here. We want to focus on Bob’s complaint that the district court gave the jury a flawed “conscious avoidance” instruction.

The doctrine of “conscious avoidance” (also called “willful blindness”) is a judge-made doctrine that expands the definition of knowledge to a case where a defendant is found to have willfully closed his eyes to the high probability a fact exists. While the doctrine originated in the context of drug trafficking cases, it has since been expanded to a wide array of prosecutions and is increasingly used in the white-collar cases.

ostrich170228The jury instruction – often called the “ostrich instruction” because the defendant has figuratively buried his head in the sand, benefits the government. It’s an instruction that often is requested where the government’s evidence of actual knowledge is pretty slim. Defense attorneys complain (with some justification) that “the instruction invites the jury to convict based on evidence of mere negligence or recklessness.”

One of the issues in Bob’s case was whether he knew that John had a duty to keep the Wainwright information confidential. Bob argued on appeal that he should get a new trial because the district court wrongly instructed the jury on the mens rea element of his offense. The district court erroneously told the jury that it could convict Bob of securities fraud so long as it found that he “knew or . . . should have known” that O’Neill had breached a duty of confidentiality by giving him the Wainwright tip. Bray also complained that the district court’s instructions erred by equating the concept of “willful blindness” with negligence.

The 1st Circuit agreed that “the district court clearly erred in defining the ‘willful blindness’ standard.” Willful blindness has “an appropriately limited scope that surpasses recklessness and negligence,” the Circuit said, “and expressly contrasting willful blindness with ‘a negligent defendant… who should have known of a similar risk but, in fact, did not” was wrong. The Court held:

A willful blindness instruction is meant to inform jurors that they may impose criminal liability on people who, recognizing the likelihood of wrongdoing, nonetheless consciously refuse to take basic investigatory steps. The instruction in this case, however, mistakenly suggested that the jury could find “consciously and deliberately avoided learning” about the violation.

Unfortunately for Bob, his attorney did not object to the instruction at trial, so the review on appeal was under the FRCrimP 52(b) “plain error” standard. The fourth prong of “plain error” is whether the mistake “distort[ed] the fairness or integrity of lower court proceedings in some extreme way.” Here, the Court said, it did not, because the evidence was ample that Bob knew the moment the napkin was wordlessly slid across the table that he was getting inside information that John had no right to provide. In the law business, that’s called “actual knowledge.”

Bob scored over $300,000 on the sale of his Wainwright stock. And then, he lost big.

United State v. Bray, Case No. 16-1579 (1st Cir., Feb. 24, 2017)

– Thomas L. Root

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A Trio of Significant Decisions – Update for February 27, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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7th CIRCUIT SAYS KIDNAPPING NOT CRIME OF VIOLENCE

Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.

kidnap170227Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.

Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”

The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”

Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”

United States v. Jenkins, Case No. 14-2898 (7th Cir., Feb. 24, 2017)
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WHO YOU GONNA BELIEVE?

For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.

Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.

Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.

But even an average lawyer should know how to count...
But even an average lawyer should know how to count…

While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”

The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.

The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.

lawyermistake170227The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”

The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.

Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).

Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.

Cadet v. State of Florida DOC, Case No. 12-14518 (11th Cir., Feb. 24, 2017)
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CAN YOU HEAR ME NOW?

In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.

hearme170227The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.

The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.

The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”

Heyer v. Bureau of Prisons, Case No. 15-6826 (4th Cir., Feb. 23, 2017)

– Thomas L. Root

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What’s in a Name? – Update for February 24, 2017

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A SHAKESPEARE FESTIVAL

Bruce Swisshelm signed a plea agreement to resolve his bank fraud indictment. It included the fairly Government promise not to argue for a sentence above the top of the Guideline range, and the defendant would not argue for a sentence below the bottom.

rose170224Bruce’s sentencing range was 57-71 months, but his attorney vigorously argued for a downward variance and bombarded the court with letters from the community attesting to the fact that Bruce was a great guy. The Government objected to her tactics, arguing that defense counsel’s arguments and the letters violated the plea agreement. Bruce’s lawyer disagreed, saying the agreement only prohibited her from arguing for a downward departure, and all she was asking for was a variance.

Variance, departure? A difference, is it not? Bruce’s attorney was undoubtedly emulating Renaissance lawyer Juliet, who once argued, “What’s in a name? That which we call a rose, By any other name would smell as sweet.” And there is little doubt the judge found her arguments as sweet as a rose: despite the 57-71 month Guidelines range and the terms of the plea agreement, the court sentenced Bruce to 12 months and a day.

The Government appealed, arguing in essence, “Lord, what fools these mortals be” if they think they did not breach the plea agreement. Earlier this week, the 8th Circuit agreed.

Defense counsel just wanted the court to picture her client in the best possible light.
          Defense counsel just wanted the court to picture her client in the best possible light.

The Court of Appeals admitted that there are a lot of case out there holding  what’s to be done when the Government breaches a plea agreement, but that it had never decided the appropriate remedy when the defendant violates the deal. The Court said, “We do not now decide the proper remedy for any future defendant’s breach of a plea agreement, but in the particular circumstances of this case we decline to treat Swisshelm’s breach of the plea agreement differently from a breach by the government.”

A governmental breach of a plea deal always carries with it constitutional due process concerns. Those concerns are not present in where the breaching party is the defendant, but “principles of contract interpretation” nevertheless causes the Court to hold Bruce “accountable to the terms of the plea agreement. The parties agreed that they would not request a sentence outside the Guidelines range, and the government agreed not to pursue the several additional charges and Guidelines enhancements it could have lodged against Swisshelm in return for his guilty plea… Swisshelm thus received the benefit of the plea agreement—the government’s forbearance from seeking an above-Guidelines sentence—but deprived the government of its corresponding bargained-for benefit—Swisshelm’s forbearance from seeking a below-Guidelines sentence. “

Defense attorneys know that some clients just can't be prettied up at sentencing, no matter how hard one tries...
     Defense attorneys know that some clients just can’t be prettied up at sentencing, no matter how hard one tries…

The Court ordered resentencing in front of a different judge, which is precisely the remedy Bruce would have gotten if the Government had breached. Bruce – who had to think he had a real soft-touch sitting on the bench – complained that a different judge was hardly necessary and that his breach had been harmless. Doing the math, the 8th figured that a decrease in sentence from 57 months to 12 months was quote material. It said the different judge “may in the exercise of discretion consider the letters submitted on Swisshelm’s behalf for the purpose of determining a sentence within the Guidelines range, but not for the purpose of considering a downward departure or variance from the Guidelines range.”

The Court noted that appointment of a new judge in cases like this is standard, and was “in no sense to question the fairness of the sentencing judge; the fault here rests on the defendant, not on the sentencing judge.”

Bruce can’t be thinking that “All’s well that ends well.” He’s already served his 12-month sentence, and was just released last month. He’s now looking to going back for another 45 months, at least.

United States v. Swisshelm, Case No. 16-1416 (8th Circuit, February 22, 2017)

 – Thomas L. Root

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Sentencing Commission Issues Comprehensive Drug Recidivism Study – Update for February 23, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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BUT I REPEAT MYSELF…

A 149-page report issued Tuesday by the U.S. Sentencing Commission offers a fascinating, data-filled glimpse into recidivism by federal drug offenders.

shawshank161117First, our criticism: the data are drawn from 10,000+ federal drug offenders who were either released or placed on probation during 2005. While a study on recidivism necessarily has to watch a cohort of people over a period of years, a lot has happened since 2005 that may change the accuracy of some of the findings.

For example, the study showed that among the 2005 releasees, methamphetamine offenses constituted just under 17% of all offenses. By 2015, about 31% of all drug offenders were methheads. The other concern is that all of the releasees would have been sentenced before United States v. Booker, and thus had mandatory Guidelines sentences. That leaves unanswered the question whether non-mandatory Guidelines sentences have a different influence on drug offender recidivism than did the old regime of mandatory Guidelines sentences.

offenderages170223But our concerns do not materially lessen the benefit that the Report’s wealth of data confers on the sentencing debate. The overall finding is sobering: over an 8-year period, one half of the 2005 group of federal drug trafficking were rearrested for a new crime or a violation of supervised release conditions.

Some other findings:

• Crack cocaine offenders had the highest rate (61%) of recidivism of any drug type, while powder cocaine offenders had the lowest rate (44%);

• The median time from release to the first recidivism event was 25 months;

• Nearly one-fourth (24%) of recidivist drug trafficking offenders had assault as their most serious new charge, followed by drug trafficking and public order offenses at about 15% apiece;

offenderages170223• A drug trafficking offender’s criminal history was closely associated with the likelihood of recidivism, from a recidivism rate of 35% for offenders with no prior criminal history, to 77% for offenders in the highest criminal history. Interestingly, the Guidelines “career offenders” – whom policy dictates are supposed to represent the hardest-core offenders – had a recidivism rate of 63%, lower than three of the six other criminal history ranges;

• A federal drug trafficking offender’s age at time of release was closely associated with likelihood of recidivism. Drug trafficking offenders released prior to age 21 had the highest recidivism rate at 65%, while drug trafficking offenders over 60 years old at the time of release apparently retired, with a recidivism rate of only 16.5%;

• There is little apparent association between the length of imprisonment and recidivism for drug trafficking offenders overall, a finding that supports other studies suggesting that no prison sentence over 5 years has any greater deterrent effect than a 5-year term. However, once criminal history is accounted for, length of imprisonment is associated with lower rates of recidivism (probably because of the older age of the prisoner when released).

• Federal drug trafficking offenders had a substantially lower recidivism rate compared to state drug offenders released around the same time. Over 76% of state drug offenders released from prison were rearrested within five years, compared to 42% of federal drug trafficking offenders released over the same five-year period.

The Report includes chapters breaking down the numbers according to the types of drugs in the offenders’ cases.

rearrestbysent170223There’s plenty of data in the Report for everyone. While only being released two days as of this writing, the Report is already being used by one inmate going back for resentencing and another 60+-year old offender on supervised release who wants the court to end his supervision early.

United States Sentencing Commission, Recidivism Among Federal Drug Trafficking Offenders (February 21, 2017)

– Thomas L. Root

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No Beckles Today, But Supremes Issue Interesting COA Opinion – Update for February 22, 2017

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BECKLES V. UNITED STATES NOT DECIDED YET, BUT SUPREME COURT SPANKS 5TH CIRCUIT IN “BLACKS ARE VIOLENT” CASE

The Supreme Court issued three opinions this morning, one of which was criminal. A decision in Beckles v. United States was not handed down, but given that the three decisions decided today were argued in October, November and early December, we anticipate that Beckles could pop at any time.

scotus161130The interesting case handed down is Buck v. Davis, a Texas death penalty case in which the defense attorney amazingly enough introduced expert testimony that his client was more likely to be violent because he is black. After Buck lost his habeas corpus in state court, and was denied habeas in federal district court and the 5th Circuit Court of Appeals.

What may be of general interest to federal petitioners is the Supreme Court’s spanking of the 5th Circuit for that court’s stingy denial of Buck’s certificate of appealability. The Supreme Court complained that the Circuit “exceeded the limited scope of the COA analysis. The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course. 28 U. S. C. § 2253. At the first stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or… could conclude the issues presented are adequate to deserve encouragement to proceed further’.”

Here, the Supreme Court said, the 5th Circuit “phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue.”

The 5th Circuit is hardly alone in this approach. We think mostly of the 4th Circuit, which has COA petitioners file an “informal brief,” which suggests that the COA is being granted or denied based on an analysis of the entire case rather than the rather low bar of “appealability.”

Branding your own client with a racist stereotype? Bad lawyering...
           Branding your own client with a racist stereotype? Bad lawyering…

The Supreme Court held that Buck’s lawyer was ineffective and Buck was prejudiced thereby. It sent the case back for resentencing.

The Supreme Court has not yet announced the next date for issuance of opinions, but it generally gives not much more than week’s notice. The argument dates of the three announced today suggests that Beckles is on track for a March issuance.

Buck v. Davis, Case No. 15–8049 (Supreme Court, February 22, 2017)

– Thomas L. Root

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Right to Effective Counsel Only Comes with Indictment – Update for February 16, 2017

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TIMING IS EVERYTHING

Every inmate knows the truth behind the Southern Gothic pop song “The Night The Lights Went Out in Georgia“, at least in the lyric “don’t trust your soul to no backwoods southern lawyer…”

reallawyer170216The 6th Amendment guarantees an attorney to every person charged with a felony. The Supreme Court has interpreted the right to guarantee not just some guy or gal stuffed into a suit and carrying a briefcase. Instead, the right is to an effective lawyer.

Claims in post-conviction filings that a lawyer was ineffective – and that the defendant’s constitutional rights were therefore violated – are as plentiful as wildflowers in June. And more often than you might think, the complaints are justified.

We’re not going to plumb the depths of lawyer foolishness today. Instead, we’re looking at a Tennessee case where the claims of ineffective assistance of counsel were denied not because of what the lawyer did or didn’t do, but rather when he did or didn’t do it.

John Turner was arrested by a joint federal-state task force after robbing four Memphis-area businesses at gunpoint. The State of Tennessee charged him, and John hired attorney Mark McDaniel.

Deal170216During the summer of 2008, while state charges were being litigated, state district attorney told McDaniel that the United States Attorney’s Office planned to get an indictment against John under the Hobbs Act, 18 U.S.C. § 1951, which criminalizes interference with commerce by threats or violence, and for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for each of the four robberies. On the federal firearms charges alone John faced a mandatory minimum of 82 years. The Assistant U.S. Attorney handling the matter told McDaniel he would offer John a 15-year sentence if John would accept the offer before the federal indictment was returned.

McDaniel says he relayed the federal plea deal to John, who refused to take it. He said John told him that 15 years was too much time for what he did. For his part John says McDaniel did not present the offer to him properly. John fired McDaniel and hired a new attorney, just as a new AUSA took over John’s case. The best deal the new AUSA offered was 25 years, which John accepted.

In 2012, John filed a post-conviction motion under 28 U.S.C. § 2255, claiming that McDaniel rendered ineffective assistance of counsel during the plea negotiations on the federal charges. The district court denied the motion without reaching the factual question of whether McDaniel was ineffective. Instead, the district court decided that John did not have a 6th Amendment right to counsel on the federal charges before the indictment issued.

rights170216Earlier this week, the 6th Circuit very reluctantly agreed. The Court noted that its own precedent held that until formal federal charges were filed, no 6th Amendment right to effective counsel attached. The Court found the prior holding flawed, and noted that a number of other circuits had held to the contrary.

The Circuit said

In adversarial plea negotiations like Turner’s, a defendant’s right to trial and to contest the sentence are often at stake. It makes plea negotiations a “critical stage” of the criminal process. Whether they occur before or after the filing of formal charges, it is undisputed that the plea negotiation process is adversarial by nature and the average defendant is ill equipped to navigate the process on his own. The current bright-line rule does not allow for the realities of present-day criminal prosecutions and their heavy reliance on plea bargaining. Defendants face an increasing number of federal-state prosecutions that blur the lines of demarcation on exactly when charges are filed for purposes of the Sixth Amendment right to counsel. Defendants also must navigate the complex web of federal sentencing guidelines, computations that confound even those who work with them often.

In short, there is no logic to a “bright-line” rule that charges have to be filed before a 6th Amendment right attaches. However, the Court admitted, 6th Circuit precedent in United States v. Moody, 206 F.3d 609 (6th Cir. 2000) required that the Court rule that John’s claim – event if correct – did not rise to a 6th Amendment violation.

The Court suggests that this issue may be ripe for Supreme Court review. For what it’s worth, we think the Court could have overruled the Moody precedent because of intervening Supreme Court decisions in Missouri v. Frye and Lafler v. Cooper.

Turner v. United States, Case No. 15-6060 (February 15, 2017)

– Thomas L. Root

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The Final Word on Obama Clemency – Update for February 15, 2017

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WHITE HOUSE COUNSEL REVEALS ARBITRARY WORLD OF OBAMA COMMUTATIONS

nothing170215You can pay your money and take your chance. From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to over 1,700 federal prisoners. From another, Obama squandered chances to make needed, permanent chances in the federal criminal justice system, choosing instead to sprinkle exhibitions of mercy one a few lucky inmates, done in such a way as to burnish Obama’s image rather than provide any responsible leadership.

Chief among our complaints was that even if you’re a clemency cheerleader, you have to be profoundly disappointed that Obama accomplished so little, and so much less than he and his minions confidently predicted in 2014. Former Attorney General and Obama buddy Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners.

It wasn’t for lack of raw material. Obama received more petitions for clemency than any recent president. And maybe that was the problem. In a recent interview, former White House Counsel Neil Eggleston revealed that Obama himself may have been the bottleneck:

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out.

He felt strongly that this was a gift, and the gift had to be earned.

delegate170215Obama’s hagiographers will undoubtedly hail his obsession with the details of each of the 1,700+ commutations as evidence of the depth of commitment the President had to the commutation program, the extent of his compassion, the whatever. The plain fact is that America’s chief executive showed an unnatural preoccupation with the minutiae of commutation, hand-picking the winners and losers when his time should have been spent on larger matters. The boss should set out some broad principles – like the White House did with the Clemency Project – and then simply delegated authority to trusted staffers to carry it out.

For that matter, Eggleston’s offhand comment that Obama “felt strongly that this was a gift, and the gift had to be earned” reveals much. Holder told the American Bar Association in 2014 that the clemency initiative was intended to “correct the disparities” that were orphaned when the Fair Sentencing Act of 2010 was passed without a retroactivity provision. But Eggleston’s statement suggests that the President saw it as more Messianic, that he was empowered to magically change lives, and that he would bestow the gifts only on those he deemed worthy. Deciding who was worthy and who was not thus because as arbitrary as most other acts of God.

Eggleston seems defensive to claims of arbitrariness:

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew.

All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, ‘How can this be?’”

That, of course, is exactly what the folks in prison – including people with horrific drug sentences and excellent institutional records – are wondering. We had one unsuccessful inmate write to us that his disciplinary record was spotless, while another inmate there received work that Obama had commuted his sentence while siting in the Special Housing Unit because of a serious rules infraction.
The inmate who wrote to us asked “how is that right?” The answer, of course, came from a former Democratic president, Jimmy Carter, who famously said, “Life is unfair.”

clemencyjack161229The inmate’s mistake, of course, was in thinking that the clemency program was ever about justice and fairness for them. It wasn’t. It was about Obama and his legacy.

In that, the clemency program was quite successful.

While anecdotes do not statistics make, we cannot help but note that one of the carefully vetted commutations – Robert Martinez-Gil, whose life sentence was commuted because Obama found he had “turned [his] life around” – just got arrested in San Antonio with a kilo of cocaine powder. He was free for about 18 months. At minimum, this does not speak well for the superiority of Obama’s analytical prowess. 

The Marshall Report, The Man Who Ran Obama’s Clemency Machine (Feb. 14, 2017)

– Thomas L. Root

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A Snitch in Time… – Update for February 14, 2017

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NO HONOR AMONG THIEVES… OR COOPERATORS

snitch161004One of the enduring myths about prisoners is how universally despised snitches are. The lowest of the low, people with no sense of loyalty, yada yada.

Horse puckey. Informants are everywhere in the system. In 2015, one out of eight federal defendants was rewarded for ratting out other defendants with a sentence reduction. Another 1.5% received a sentence reduction after the fact for cooperation after being locked up.

As one inmate (who was informed on, but had no information himself that the government wanted to swap for): “Man, you do what you gotta do.”

The number of defendants getting sentence reduction motions doesn’t reflect how many try to swap what they know for a lower sentence without success. Some solicit the government without success. Others provide information but get nothing. The problem is that the government’s offer is simple and rather one-sided: tell us everything you know, and we’ll then decide whether we feel like rewarding you with a motion to reduce sentence.

The structure of the cooperation motion provides an inmate with a powerful incentive. Under the Sentencing Guidelines, the government (and only the government) may file a motion to reduce a defendant’s sentence for cooperation. If the motion is made – under U.S.S.G. § 5K1.1 – the sentencing judge may depart downward from the Guidelines sentencing range, regardless of any mandatory minimum sentences required by statute. If the inmate waits until after sentencing to cooperate, the government (and only the government) may file a motion under Rule 35(b) of the Federal Rules of Criminal Procedure to resentence the inmate to a reduced term, again without regard to what statutes say the minimum must be.

dubois170214Obviously, if the defendant faces a staggering mandatory minimum because of drug quantity or packing a gun or any of dozens of other statutory provisions, the only way to wrestle the sentence into the range of sanity is to sing like a canary, and then to depend on the kindness of a particular stranger who happens to be the Assistant U.S. Attorney. Could Blanche Dubois have been a federal defendant?

More often than we care to recall, defendants have spilled their guts, only to be denied any sentencing benefit by government lawyers who expected more. In one case we know of, a defendant was instrumental in convicting a murderer, but he helped a U.S. Attorney in one jurisdiction, and that U.S. Attorney could not convince the U.S. Attorney whose office was prosecuting the defendant a thousand miles away – and who displayed a real animus toward the defendant – to make the motion.

Unsurprisingly, we get asked regularly how to force the government to file a § 5K1.1 or a Rule 35(b) motion. Our answer is almost always the same: You can’t. The only factor limiting AUSAs in reaping the benefit of cooperation and then arbitrarily denying a sentence reduction motion is the fear that word will get around, and then no defendants will cooperate. Fat chance of that: when a defendant is facing a mandatory minimum sentence of 20+ years, there’s no straw too small to grasp.

That’s not to say that some defendants can’t be their own worst enemies. Defendants like Tyran Patton. Tyran was a major cocaine and heroin dealer in the Chicago area. In April 2010, law enforcement arrested one of Tyran’s people with 8 kilograms of cocaine and 3 kilograms of heroin, amounts that carried a substantial mandatory minimum sentence. Later, in an unrelated case, ATF agents arrested Tyran in a firearms investigation. Government agents explained the facts of life to Tyran, chiefly how they had him dead to rights on the gun, and how another train – this one a heavy-duty drug conspiracy indictment – was coming down the tracks at him. Tyran wisely agreed to confess to all and to cooperate with the ATF.

snitch160802He did all right for awhile. Over a year, he made controlled purchases of guns for his ATF case agent, and ultimately helped get about 60 weapons off the street. But Tyran had his own agenda, and the ATF agent supervising him was a greenhorn. Tyran was allowed to pick his own targets, and so he did, delivering only street-level dealers while protecting higher-level gun traffickers, family members and friends.

What a tangled web Tyran spun! When the ATF told him in 2012 that he was need to testify before a grand jury, and that his grace period was running out – meaning he would be indicted on the drug charge soon – Tyran disappeared for about six months. He surfaced only after the government had finished several trials, and word was out on the street that he was a snitch. The government suspected he came forward because he needed government protection.

Tyran tried to make a plea deal with the government, but prosecutors were pretty steamed at him and refused to do so. So he pled guilty without benefit of a deal, and was sentenced to 20 years and change.

Tyran complained that he should have gotten the benefit of a sentence reduction motion from the Feds. Last week, the 7th Circuit turned him down.

The Court started by observing that district courts have limited authority to review a prosecutor’s refusal to file a substantial‐assistance motion, and may grant a remedy only if the refusal is based on an unconstitutional motive, or if it is “not rationally related to any legitimate Government end.” The burden is on the defendant to make a “substantial threshold showing” that the government improperly withheld a substantial‐assistance motion before he can receive a remedy.

stool160530Tyran argued that the government withheld his sentence reduction for reasons “not rationally related to any legitimate Government end.” The Circuit, however, found two very good reasons not to reward Tyran. First, he gamed the tyro ATF supervising agent by manipulating who he targeted to avoid ensnaring family members, friends and some of the higher-level gun movers the ATF really wanted to catch. Second, Tyran “disappeared for over six months, right after being told he was going to be indicted and needed to testify at a grand jury hearing. While Tyran claims he had to have an operation during that time and that his wife turned off his cell‐phone, even his own attorney acknowledged that Patton could have acted more promptly in getting in touch with the government following his surgery. Both rationales support the government’s decision not to move for a reduced sentence.”

Tyran argued he should have been granted a hearing in which he could develop his claim that the government’s withholding of the sentence reduction motion was illegitimate. The Court said he had it backwards: “A defendant has no right to discovery or an evidentiary hearing unless he makes a substantial threshold showing of an improper motive. Tyran failed to make such a showing. In fact, he did not even argue to the district court that the government’s rationale for refusing to move for a substantial-assistance reduction was unrelated to a legitimate government end. Instead, Tyran merely argued that he deserved the reduction because he provided the government with substantial assistance which led to the prosecution of seven individuals and taking 60 guns off the street.”

United States v. Patton, Case No. 13-1319 (Feb. 9, 2017)

– Thomas L. Root

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That’s Right… Just Blame the Victim – Update for February 13, 2017

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YOU CAN’T RAPE THE WILLING

Thirty years ago, when life was courser and the P.C. police weren’t roaming around being outraged about everything, an old wag of an attorney described to us his approach to an upcoming rape trial (where he represented the defendant).

“You can’t rape the willing,” he said, a line he later used in the trial to introduce the jury to his argument that the victim had been a willing participant in the offense.

blame170213Sadly for the defendant, the trial was in a small, rural Midwest county, and both the perp and the victim were male. Back in the day, the stalwart folks in rural America did not think much of gay assignations, and they were too willing to believe that the victim would have never consented to such odious conduct. In fact, the victim was quite drunk and undoubtedly nearly as willing as the defendant, at least until he sobered up hours later, but no matter. The defendant was convicted, and probably would have been whether it was consensual or not.

A lot has changed since then, those unenlightened days when people hated gays and loved their bankers. Now it’s turned on its head.

mortgage170213Minas Litos and his friends were busy a decade ago doing what fraudsters all were doing, writing bogus mortgage applications for people who lived under bridges, collecting the proceeds, and riding into the sunset. Minos had a portfolio of real estate to “sell.” He would give his applicants down payment money, and then lie about their assets, income and cash on hand to Bank of America. In each of the transactions, Minos and his associates walked away with the purchase price of the property they had sold minus the down payment amount, since the “down payment” they received was their own cash (which they’d surreptitiously transferred to the impecunious buyer).

Minos and the others were duly convicted of fraud, and as part of their sentence, the district court awarded Bank of America $893,000 in restitution. Last Friday, the 7th Circuit reversed the restitution in a breathtaking decision that blasted BOA as a willing handmaiden in Minos’ fraud (and for that matter, in the Great Recession of 2008).

BOA170213Federal law requires “mandatory restitution to victims of certain crimes,” 18 U.S.C. § 3663A (the Mandatory Victim Restitution Act of 1996), including fraud. But, the Court said, this applies only where “an offense resulting in damage to or loss or destruction of property of a victim of the offense”… and “that doesn’t seem to describe the loss suffered by Bank of America as a result of its improvident loans, especially when we consider its complicity in the loss — its reckless decision to make the loans without verifying the solvency of the would-be borrowers, despite the palpable risk involved…”

In the Circuit’s opinion, more time was spent on the victim than on the defendant:

The order of restitution is questionable because Bank of America, though not a coconspirator of the defendants, does not have clean hands. It ignored clear signs that the loans that it was financing at the behest of the defendants were phony. Despite its bright-eyed beginning as an upstart neighborhood bank for Italian-American workers, Bank of America has a long history of blunders and shady practices; it narrowly survived the Great Depression of the 1930s, nosedived in the 1980s, and lost tens of billions of dollars in the crash of 2008—including $16.65 billion in a settlement with the U.S. Justice Department over charges of mortgage fraud… And at the sentencing hearing the judge said: “I think they [the defendants and Bank of America] are equally culpable. Isn’t that a fair way to look at this? … Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re of equal culpability?” Indeed; and we are puzzled that after saying this the judge awarded Bank of America restitution—and in the exact amount that the government had sought.

The Court complained that the mortgage applications Minos gave to BOA were “a joke on their face.” People claimed to own real estate that they didn’t own, claimed $10,000 a month income and millions in the bank, and came back to the trough multiple times – including one woman with a claimed monthly income of $3,400 who got 6 mortgages in a 10-day period.

dontcare170123But, the 7th complained, BOA did no investigating whatsoever. Indeed, the Court said, “To say the bank was merely negligent would be wrong. Recklessness is closer to the mark.” The panel said BOA didn’t care, because it knew it was going to promptly unload the loans on Fannie Mae (which wore a “kick me” sign on its corporate posterior). As the Court put it, “the bank’s failure to demand evidence of the financial sufficiency of the mortgagees constituted deliberate indifference to a palpable risk that the bank’s executives must have been aware of. The bank had every incentive to close its eyes to how phony these loan applications were, because it expected to turn around and sell the mortgages to a hapless Fannie Mae.”

So, because the victim was willing, Minos and his co-conspirators should get off scot-free? Not really. The Court said

Restitution for a reckless bank? A dubious remedy indeed—which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money. We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of $893,015.

The case is being remanded to the district court, where the judge will undoubtedly resentence Minos and his co-defendants to zero restitution, but a fine of $893,000.

United States v. Minos, Case No. 16-1384 (7th Cir., Feb. 10, 2017)

– Thomas L. Root

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