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Misery on the Mountain – Update for November 7, 2018

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

WHITEY BULGER MURDER INTENSIFIES CONGRESSIONAL FOCUS ON USP HAZELTON

The murder of James “Whitey” Bulger last week at USP Hazelton, a day after his transfer to that facility, was not the first this year at the high-security institution.

hazelton181106Hazelton, known by inmates as “Misery Mountain”, has a history of violence. The New York Times reported earlier this year that 2017 saw 257 violent incidents at Hazelton, a 15% increase from 2016. Two other inmates were murdered in 2018 prior to Bulger’s appointment with a lock-in-a-sock.

Union officials have raised a flurry of concerns over the past year about acute understaffing and lethal violence at the prison, which is categorized as a high-security lockup. There are more than 3,000 inmates at the prison complex. “We’re short of 42 correctional officers,” Richard Heldreth, president of Local 420 of the American Federation of Government Employees, which represents more than 800 employees at the U.S.P. Hazelton in Bruceton Mills, West Virginia. “It affects the security of the prison.”

lockinsock181107Prisons across the nation have dealt with extreme shortfalls in correctional officers since the Trump administration imposed a hiring freeze in January 2017 and the Bureau of Prisons stopped filling vacant positions. At the beginning of this year, the agency eliminated 6,000 positions nationwide, a 14% reduction in staffing levels. The cuts included 127 jobs at Hazelton.

Nearly two weeks before Bulger’s death, Washington, D.C., Delegate to Congress Eleanor Holmes Norton asked the Dept. of Justice Inspector General to “open a formal investigation into the alleged appalling conditions inmates are facing at the Federal Bureau of Prisons’ (BOP) Hazelton facility… Two inmates from the District of Columbia have died at Hazelton during violent altercations during this past year alone amid reports of brutal treatment of others… Based on the evidence presented to my office, I believe that the federal employees serving in this facility have likely received inadequate training, are under-supported, and are being compelled to perform duties outside the scope of their positions and their training, which is leading to these horrific and entirely unacceptable outcomes.”

Last Tuesday, Norton doubled down on her demand, saying in a news release, “Today’s reports of another inmate death at Hazelton heighten the need for an IG investigation into the operations and prisoner conditions at this federal prison. The two other killings at Hazelton earlier this year were of inmates from the District.  Based on reports from my constituents who are housed at Hazelton and their relatives, there appears to be a serious shortage of staffing and other resources, leaving prisoners and guards vulnerable to attacks.”

Inch181108It may have just been coincidence that the day Bulger was killed, FAMM sent a letter to President Trump urging immediate appointment of a permanent BOP Director, to replace Mark Inch, who resigned last April. FAMM President Kevin Ring wrote, “The BOP has been without a permanent director since General Mark Inch’s resignation from the post in May of this year. The void in consistent leadership has caused and exacerbated numerous problems throughout the federal prison system, for both staff and those in custody.”

Washington Examiner, ‘Misery Mountain’: The jail where ‘Whitey’ Bulger was slain has history of murder and violence (Oct. 30, 2018)

The New York Times, Safety Concerns Grow as Inmates Are Guarded by Teachers and Secretaries (June 18, 2018)

Los Angeles Times, Mafia hit man is suspected in former mob boss ‘Whitey’ Bulger’s beating death in prison (Oct. 31, 2018)

Office of Congresswoman Eleanor Holmes Norton, Norton Demands IG Investigation of Appalling Prisoner Conditions Reported at BOP Hazelton Facility After Two D.C. Inmates Killed This Year (Oct. 18, 2018)

FAMM, Letter to President Trump Re BOP Director (Oct. 29, 2018)

– Thomas L. Root

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Supreme Court Hears Failure-to-Appeal Argument – Update for September 6, 2018

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

SUPREME COURT SEEMS SKEPTICAL OF ATTORNEY RIGHT NOT TO APPEAL; AGREES TO HEAR PAIR OF SUPERVISED RELEASE ISSUES

While it can be dangerous to predict an outcome from the justice’s comments at oral argument, Supreme Court observers are predicting that it seems more likely than not that the Court will rule that a lawyer who unilaterally decides to disregard his or her client’s instruction to appeal provides ineffective assistance of counsel, even where the client has waived appeal rights.

appeal181107Under Strickland v. Washington, in order to establish ineffective assistance of counsel, a petitioner must show the lawyer rendered objectively unreasonable representation, and that there is a reasonable probability that the poor performance caused adversely affected the result of the proceeding. The issues in last week’s Garza v. Idaho case were whether the lawyer rendered deficient performance by refusing to file an appeal, despite his client’s repeated requests and without consulting him, and whether Garza must demonstrate prejudice or whether it is assumed as provided for in the Court’s 2000’s Roe v. Flores-Ortega decision.

Idaho argued there was no prejudice because the state “had already secured the waiver of many, many, many issues, in fact, all of the reasonable issues that could be tried.”

“Well, many but certainly not all,” interjected Chief Justice John Roberts. “They didn’t assure themselves of victory on appeal since there were arguments outside the scope of the agreement, including some that have to be available outside the scope of the agreement,” Roberts explained, alluding to possible claims that the plea and appeal waiver were themselves involuntary.

supervisedrevoked181106In other Supreme Court developments, the Court granted certiorari in Mont v. United States, a 6th Circuit case asking whether a period of supervised release for one offense is tolled under 18 USC 3624(e) during a period of pretrial confinement for a new criminal case, if upon conviction the time is credited toward the defendant’s sentence for the new crime.

A week before, the Court granted certiorari to another supervised release case, United States v. Haymond. Last spring, the 10th Circuit held in that case that 18 USC 3583(k), which requires additional prison time for sex offenders who violate the terms of their supervised release, is unconstitutional, because it takes away the sentencing judge’s discretion and imposes additional punishment on sex offenders based on new conduct for which they had not been convicted beyond a reasonable doubt. The government petitioned for high court review.

SCOTUSblog.com, Argument analysis: Court skeptical that a lawyer may unilaterally countermand client’s instruction to file a criminal appeal (Oct. 31, 2018)

Mont v. United States, Case No. 17-8995 (cert. granted Nov. 2, 2018)

United States v. Haymond, Case No. 17-1672 (cert. granted Oct. 26, 2018)

– Thomas L. Root

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FIRST STEP First Up After Mid-Terms? – Update for November 5, 2018

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

SENATE POISED TO CONSIDER AMENDED FIRST STEP ACT

Criminal justice reform advocates confirmed to the Washington Examiner last week that sentencing reform provisions will be included in the FIRST STEP Act (S.2795), to be unveiled shortly after tomorrow’s mid-term elections, amendments which are likely to trigger an intense lame-duck struggle over attaching penalty reductions to a White House-backed prison reform bill. 

firststep180814The FIRST STEP Act passed the House in a 360-59 vote earlier this year, but without sentencing reforms. Reform advocates expect rapid legislative action after a pre-election pause, and believe there will be enough votes to pass the expanded legislative package. Two people close to the process told the Washington Examiner that a bipartisan group of senators has agreed to attach a set of sentencing reforms to the House-passed bill. 

The additions include shortening federal three-strike drug penalties from life in prison to 25 years, reducing two-strike drug penalties from 20 years to 15, unstacking 18 USC 924(c) sentencing enhancements to require a conviction on the first 924(c) charge before 25-year minimum mandatory sentences apply, making the 2010 Fair Sentencing Act (that cut crack penalties) retroactive, and expanding the 18 USC 3553(f) “safety valve.”

“We are very excited about it. We think that the four reforms that are in the bill are ones that make sense,” said Mark Holden, the general counsel of Koch Industries and an influential conservative reform advocate. “From what we understand, there are enough votes — plenty — for it to happen.”

Both Holden and another person close to the legislation drafting process, who asked not to be identified, said there is wording to reduce concern about illegal immigrants benefiting from sentencing reform. 

Sentencestack170404Many of the proposed changes to the FIRST STEP Act are included in the Sentencing Reform and Corrections Act (S.1917), which passed the Senate Judiciary Committee last February but has not been brought to the floor for a vote. While the physical text of the new sentencing reforms is still being written, the SRCA provides a good example of what might be in the final bill text. “The sentencing reforms that could be included in the First Step Act… do not eliminate any mandatory minimum sentences,” wrote FreedomWorks vice president Jason Pye in The Hill last week. “But these proposed reforms would apply a measure of common sense to federal sentencing law.”

Holden said he expects the White House, particularly presidential adviser and son-in-law Jared Kushner, to forcefully back the bill. Last month, President Trump said in a Fox News interview that while Attorney General Jefferson Beauregard Sessions III opposed sentencing reform, Trump was in favor. “”If he doesn’t support reform, then he gets overruled by me,” the President said. “Because I make the decision, he doesn’t,” Trump said Oct. 11. 

“I think President Trump is doing a really good job on these sentencing reform measures,” Holden said. “He’s right, he’s the president, he makes the call, and we’re glad he said it.”

cotton171204It’s unclear how a group of Republican skeptics, such as Sen. Tom Cotton of Arkansas, will react. Senate Majority Leader Mitch McConnell (R-Kentucky), will be the ultimate decision-maker in whether the bill gets a floor vote. A Louisville Courier-Journal writer said last week that with prison and sentencing reforms polling off the charts in Kentucky, and Sen. Rand Paul (R-Kentucky) leading the charge, there is little doubt McConnell will find enough votes during the promised whip count (he needs 60) to send the bill to the floor.

The reform efforts have received significant White House support, and in turn, policy advocates have sought to build bridges with Trump-supporting activists. Last month, clemency advocates including Amy Povah of CAN-DO Clemency and Alveda King, the anti-abortion evangelical leader, hosted a panel at a Women for Trump event at Trump International Hotel in Washington. 

pardon171128Povah wants Trump to supplement FIRST STEP passage with generous use of his constitutional pardon powers. Last month, Trump said “a lot of people” are jailed for years for “no reason” and that he was actively looking to release some. Povah said clemency would be particularly appreciated around the holiday, including Thanksgiving, when presidents pardon turkeys, disillusioning people who are looking for one. 

“I think Trump said it best, he said that he’s going to release a lot of people and I think a lot of people in prison took that seriously and literally,” Povah said.

Povah said she’s particularly grateful for Kushner’s role in pushing both legislation and clemency cases, particularly after Sessions’ appointment as attorney general (an appointment Trump openly regrets making and who is likely to resign or be fired after tomorrow’s election). “Jared is a beacon of hope for so many prisoners. They had lost hope for any leniency or reform when Jeff Sessions was sworn in as attorney general. If felt like a nail in the coffin,” she said.

Washington Examiner, Prison reform bill to include sentencing, setting up post-election fight (Nov. 4, 2018)

Americans for Tax Relief, The US Needs Sentencing Reform and the First Step Act (Nov. 2, 2018)

Louisville Courier Journal, Rand Paul and Mitch McConnell play key roles in justice reform (Nov. 1, 2018)

The Hill, Congress must make sentencing reform priority for public safety (Nov. 2)

– Thomas L. Root

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Sentence is ‘Barbaric’ But Not Unusual – Update for November 2, 2018

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

SENTENCE ON REMAND IS REASONABLE… JUST BARELY

Jared Sawyer was sentenced for sex-related offenses to 30 years in federal prison. Last year, the 2nd Circuit threw out the sentence as being substantively unreasonable, calling it “shockingly high given Sawyer’s harrowing upbringing and comparatively low danger to the community.” On remand, the district court disagreed with the appellate court analysis, but found that Sawyer’s good prison record justified a reduction to 25 years.

barbaric181102Last week, the 2nd Circuit grudgingly upheld Sawyer’s new sentence. The Court wrote that Sawyer’s second appeal “continues to protest the reasonableness of his sentence, but we cannot bring ourselves to call it shocking under governing law. He faced a mandatory minimum of fifteen years. Regrettably, twenty‐five years is no great departure from sentences routinely imposed in federal courts for comparable offenses… In 2010 – the most recent year for which data is available – the average sentence for production of child pornography was 267.1 months, or approximately 22 years. The sentence is barbaric without being all that unusual.”

One of the three judges dissented, complaining that the district court failed to provide reasons for the sentence that would reasonably support the sentence. Here, the dissent said, “we have already considered the principal reasons offered at both sentencings and found them to be insufficient to support the original sentence. That sentence has been re‐imposed — reduced only by an unrelated factor not previously available. By failing to enforce its original mandate, the majority denies the defendant a sentence that fairly addresses the reasons which we previously identified as critical to a just sentence.”

United States v. Sawyer, Case No. 15‐2276‐cr (2nd Cir. Oct. 26, 2018)

– Thomas L. Root

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USSC Commentary Can’t Expand Guideline Coverage? – Update for November 1, 2018

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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GUIDELINES “CAREER OFFENDER” COMMENTARY GOES TOO FAR, 6TH CIRCUIT SUGGESTS

Jeff Havis attacked his sentence for gun possession by arguing that a prior Tennessee conviction for selling or delivering cocaine should not count as a “controlled substance offense” under the Guidelines to increase his base offense level. The 6th Circuit last week said it was foreclosed by a prior panel decision that the Tennessee offense did count under the Guidelines, and thus could not give Jeff the relief he wanted.

But remarkably, the opinion does not stop there. Instead, it held that Jeff’s complaint “has legs” despite a panel opinion to the contrary. Thirty years ago, the Supreme Court found the Guidelines not to violate the constitutional separation-of-powers doctrine in Mistretta v. United States, because Congress has a chance to review amendments before they take effect and the United States Sentencing Commission must comply with the notice-and-comment requirements of the Administrative Procedure Act when it adopts them.

Is Sentencing Commission commentary not the last word?
Is Sentencing Commission commentary not the last word?

This is crucial, because Tennessee’s drug trafficking statute includes “attempts” to violate the statute within its definition, something the Guidelines does not include in its text. Thus, the Tennessee law is broader than the Guidelines, meaning the Tennessee statute should not count as a controlled substance offense. However, in the commentary to the Guidelines, the USSC expanded the Guidelines definition to include attempts.

This is a problem, the Circuit said. The procedural requirements governing amendment of Guidelines “are one piece of a larger puzzle. If the Commission can add to or amend the Guidelines solely through commentary, then it possesses a great deal more legislative power than Mistretta envisioned. This means that in order to keep the Sentencing Commission in its proper constitutional position — whatever that is exactly — courts must keep Guidelines text and Guidelines commentary, which are two different vehicles, in their respective lanes.

The 6th Circuit panel quietly begged Jeff to seek en banc review to overturn the prior precedent, and to put USSC commentary into limited role it should occupy.

United States v. Havis, Case No. 17-5772 (6th Cir. Oct. 22, 2018)

– Thomas L. Root

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Not Even Halfway on Halfway – Update for October 31, 2018

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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A SOBERING REPORT ON HALFWAY HOUSE AND HOME CONFINEMENT
Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
       Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

As Congress is on the verge of passing FIRST STEP Act, a prison reform measure which will let inmates earn substantially more halfway house or home confinement time for successfully completing programs that cut recidivism, the reality is that the BOP’s halfway house and home confinement programs needed to implement the Act may be dead on arrival.

Politico reported last week that even while inmate transfers to transitional housing (halfway house) have been delayed by many weeks and months, scores of halfway house beds lie empty (with some estimates of at least 1,000 vacant spaces) and home confinement has been drastically curtailed.

Just before he unexpectedly resigned last spring, BOP Director Mark Inch told Congress the agency is curbing transitional housing overspending of past years and streamlining operations. Yet, halfway house and home confinement are much cheaper than imprisonment: in 2017, the BOP reported it spent almost $36,300 a year to imprison an inmate, $4,000 more than the cost of halfway house placement. It costs a mere $363 a month to monitor someone on home confinement.

sessions180322Politico argued that “abandoning transitional supervision aligns with Attorney General Jeff Sessions’ disputed opinion that reduced prison populations during the Obama administration are to blame for a small uptick in violent crime.” But Sessions’ policies are running headlong into those of President Trump, who has endorsed the FIRST STEP Act, which not only lets inmates earn significant additional halfway house/home confinement time for successful programming, but also directs that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted…”

In 2015, more than 10,600 federal prisoners were in halfway houses. The number of inmates in home confinement — 4,600 — was up more than a third from the year before. In all, 7.1% of BOP inmates were in transitional housing. Since then, halfway house population has dropped by 28% and home confinement is in freefall, down 61% to 1,822. Most of that cut has happened in the last year. Now only 1 in 20 people under federal supervision is in transitional housing.

Judge Ricardo S. Martinez, who chairs the Committee on Criminal Law of the Judicial Conference of the United States, complained that “we are in the dark about those numbers.” He said the committee is working to establish better communication with the BOP, because, as Politico put it, “federal judges, who can sentence defendants to halfway houses, need to know how much space is available.”

Politico, President Trump Says He Wants to Reform Prisons. His Attorney General Has Other Ideas (Oct. 25, 2018)

83 Federal Register 18863, Annual Determination of Average Cost of Incarceration (Apr. 30, 2018)

Administrative Conference of U.S. Courts, Incarceration Costs Significantly More than Supervision (Aug. 17, 2017)

– Thomas L. Root

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5th Circuit Pummels § 2255 Petitioner in Pair of Cases – Update for October 30, 2018

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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5th CIRCUIT DEALS TWO SETBACKS TO 2255 PROCEDURE

The 5th Circuit handed down a pair of 2255 procedural decisions last week that complicate matters for inmates seeking post-conviction relief in that circuit.

siegfried181101Every inmate law library denizen knows that if the district court denies a 2255, the Federal Rules of Civil Procedure let the defendant file a motion to alter the judgment under Federal Rule of Civil Procedure 59(e). It seems like a free bite of the apple: you get to reargue your position, and a timely-filed 59(e) stops the clock running on the appeal deadline.

But, it turns out, a 59(e) motion is not free of cost. Andre McDaniels found that out last week. After the district court denied his 2255, which was based on ineffectiveness of counsel, Andre filed a Rule 59(e) motion that argued the court had erred in refusing to grant an evidentiary hearing. That motion also was denied. Andre got a certificate of appealability from the 5th Circuit, but the government complained the Circuit lacked jurisdiction to hear the appeal.

The Supreme Court’s 2005 Gonzalez v. Crosby decision held that Rule 60(b) motions filed in 2255 cases seeking “to add a new ground for relief” or “attack the federal court’s previous resolution of a claim on the merits” is a second-or-successive 2255 petition. A motion that merely targets a procedural defect in the integrity of the federal habeas proceedings, however, remains a bona fide Rule 60 motion over which a district court has jurisdiction.

Circuit courts are applying Gonzalez to Rule 59 motions filed in 2255 the allegations that he had made in the 2255 motion, and complained the district court had erred in dismissing the motion without an evidentiary hearing. The 5th Circuit ruled that the district court lacked jurisdiction to hear Andre’s substantive claims under the 5th and 6th Amendments. Because they attacked the district court’s previous ruling on the merits, they constituted a successive habeas application.

However, his claim that the district court should have conducted an evidentiary hearing was not an attack on the decision on the merits, but rather on the proper procedure used by the district court in the 2255 proceeding. Andre was able to go forward on that issue.

In a separate decision, the 5th Circuit weighed in on a circuit split on the meaning of 28 USC 2244(d)(1)(D). That statute permits second-and-successive 2255 motions in some cases, including newly discovered evidence. The 5th Circuit held that to show there is newly-discovered evidence, a defendant must “establish that the affidavits were unavailable to trial counsel at the time of trial.” A number of other circuits hold only that the evidence must be “reliable evidence that was available but not presented at trial.”

grasp181101The Circuit ruled that movant Jamal Hancock failed to show his evidence was newly discovered, because “it was always within the reach of petitioner’s personal knowledge or reasonable investigation.” The Court admitted it had not previously “decided what affirmatively constitutes ‘new’ evidence,” but it has “explained what does not.” Jamal’s affidavits did not show the witness affidavits were unavailable to his attorney at the time of trial, and therefore the Court held that Jamal had offered no “new” evidence.

United States v. McDaniels, Case No. 16-20508 (5th Cir., Oct. 26, 2018)

United States v. Hancock, Case No. 16-20662 (5th Cir. Oct. 23, 2018)

– Thomas L. Root

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Opioid Act Passage May Ease Path for FIRST STEP Act – Update for October 29, 2018

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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OPIOID BILL SIGNED, IMPROVES FIRST STEP CHANCES

costlydrug170327President Trump signed H.R. 6, The SUPPORT for Patients and Communities Act, last week, which will provide addiction treatment programs to combat the opioid crisis. This is good news for several reasons.

First, the bill was a rare bipartisan effort in Congress, and the accolades legislators have gotten for cooperation may whet their appetite for more bipartisan activity. The next best opportunity for legislation supported by both Republicans and Democrats is the FIRST STEP Act, which Senate Majority Leader Mitch McConnell (R-Kentucky) has promised to bring to a vote if at least 60 votes are there.

Second, passage of a bill addressing the opioid crisis gives the Senators cover for prison reform. Opponents of reform complain that with the nation’s current drug crisis, Congress needs to toughen laws, not weaken them. Pointing to a separate law addressing the drug crisis lets FIRST STEP supporters argue that FIRST STEP and the SUPPORT Act together are a comprehensive approach that will make the nation safer.

Skopos Labs, which estimates the chances that federal legislation will be enacted, last week increased its odds that FIRST STEP will be enacted to 85%. The highest Skopos Labs estimate prior to last week was 73%.

Nothing else happened in the last week, with midterm elections coming up November 6th. Nevertheless, opinion pieces in the middle-of-the-road publication The Hill, the conservative Washington Times and the liberal Austin Chronicle, all uniformly urged passage of FIRST STEP.

The Hill, Critics are wrong on First Step Act that can fix criminal justice system (Oct. 26, 2018)

The Washington Times, Justice demands passage of First Step bill to rehabilitate lives (Oct. 21, 2018)

Austin Chronicle, The Texas Public Policy Foundation: Not Always Evil! – Conservative think tank aligns with FIRST STEP Act (Oct. 26, 2018)

NPR, Signing Opioid Law, Trump Pledges to End ‘Scourge’ Of Drug Addiction (Oct. 24, 2018)

– Thomas L. Root

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Dog No Longer Chases Own Tail in Stash House Selective Prosecution Cases – Update for October 26, 2018

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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9TH CIRCUIT EASES DISCOVERY BURDEN IN STASH HOUSE STINGS

We have written plenty about “stash-house stings” – here, here, here, here and here, for example – those reverse stings run by ATF in which an undercover agent poses as a disgruntled drug courier who is looking for help robbing a place his boss runs where drugs and money are stashed. The agent describes the stash house to people targeted for the operation, usually ex-cons fingered by confidential informants. When the targets are fully recruited and prepped for the robbery, the ATF swoops in and arrests them all.

dogtail181026For several years, defendants in different judicial circuits have argued that stash-house reverse stings almost always target black and Hispanic defendants. In the latest case, Daryle Sellers, who is black, challenged  the ATF’s selective enforcement practices when he was charged in a stash-house sting. The district court denied him the right to use discovery in his case to show racial and ethnic bias on the part of ATF, holding that under the rigorous discovery standard set forth for selective prosecution claims in the Supreme Court’s United States v. Armstrong decision, Daryle had to show that ATF had failed to prosecute others who were similarly situated to him before he could even engage in discovery to try to prove his claim. It seems to be something like a dog chasing his own tail.

Last week, the 9th Circuit reversed, agreeing with Daryle that Armstrong does not apply to requests for discovery on a selective enforcement claim in a stash house reverse-string operation case. The panel held that contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated defendants of a different race were not investigated or arrested in order to obtain discovery on a selective enforcement claim like Daryle’s. A defendant must have more than mere speculation to be entitled to discovery, the Circuit said, and a district court should use discretion to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.

Daryle’s case was remanded so that the district court could assess his discovery demand under the relaxed standard.

United States v. Sellers, Case No. 16-50061 (9th Cir. Oct. 15, 2018)

– Thomas L. Root

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Two Circuits Say Supervised Release Is Not a Guessing Game – Update for October 25, 2018

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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5TH CIRCUIT SLAPS LIMITS ON RUNAWAY SUPERVISED RELEASE CONDITIONS

Just about everyone serving a federal sentence will find themselves on supervised release sooner or later. Given some of the loosey-goosey SR terms and arbitrary probation officers, it is little wonder that one out of three people on SR end up getting violated.

writingB160425Jonathan Rivas-Estrada had three special SR conditions included in his sentence, that he had to surrender himself for deportation after serving his time, had to give requested financial information to his probation officer, and had to participate in (and pay for) drug testing and treatment. At the end of a long sentencing proceeding, the district judge glossed over those special conditions, which had been in his presentence report and to which Jonathan never objected. While they were not mentioned at sentencing, the special conditions appeared in Jonathan’s written judgment.

Last week, the 5th Circuit said it did not matter what was in his PSR or what he did not object to prior to sentencing. It held that when a defendant had no opportunity to object to special conditions at sentencing (because they were not read by the district judge), any such “unpronounced” special conditions must, upon remand, be stricken from the written judgment.

drinkMeanwhile, in the 7th Circuit, Solomon Smith complained that an SR condition that he refrain from excessive alcohol use was not tailored to his offense (tax fraud) and was vague. The Circuit said he had waived the “tailoring” argument when his trial judge said he had no objections, but it held that the district court’s omission of a definition of what constituted “excessive” rendered the condition unduly vague. The district court originally proposed a BAC of 0.08%, but somehow dropped that from the final judgment. The Circuit said the written judgment should prevent uncertainty over what conditions or version of a condition the district court intend[s] to impose; liberty should not turn on guess-work.”

United States v. Rivas-Estrada, Case No. 17-40033 (5th Cir. Oct. 15, 2018)

United States v. Smith, Case No. 16-3575 (7th Cir. Oct. 16, 2018)

– Thomas L. Root

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