All posts by lisa-legalinfo

Sunday Morning Comin’ Down – Update for June 13, 2017

Leave a comment

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

LISAStatHeader2small
TRYING THE HAIL MARY

A long time ago in an office far away, Sunday Williams, a Nigerian citizen by birth, tried to get a passport. His intent was praiseworthy but his technique was not. Dismissing legalities as too time consuming, Sunday submitted a false application claiming that he was an American citizen. After all, there are over 300 million of them. Who could possibly find out he wasn’t on the list?

sundaycash170613The Feds, that’s who. Sunday was charged with making passport fraud in violation of 18 USC § 1542. The case suffered from a venue problem: he was charged in New Hampshire but the fraud was committed in New York. His lawyer could see the handwriting on the wall – the government would dismiss in New Hampshire and bring the case in the Eastern District of New York – so he worked out a deal where Sunday pled guilty to making a false statement to the government in violation of 18 USC § 1001. Sunday could plead to that in New Hampshire. He did, and got probation.

sundayspanky170613Now, a decade after his probation ended, Sunday will never be the same. He feels remorse eight days a week, because his conviction is keeping him from becoming a citizen for real. This is what’s known as a “collateral consequence” of the conviction. The number of such collateral consequences to a felony conviction – which are effects flowing from a felony conviction that last long after the sentence has been served – is large.

Sunday believed that his lawyer misled him about the immigration consequences of pleading guilty to the § 1001 charge, as well as foolishly let him admit that the false statement was in connection to a passport application. He wanted to withdraw his guilty plea due to his lawyer’s alleged mistakes.

sundayholliday170613Ah, gloomy Sunday. To file a post-conviction habeas corpus motion, he had to be “in custody,” that is, serving his probation. What he needed was a way to raise his objections to the conviction years after the fact. To do that requires an old common law device known as a writ of error coram nobis – a remedy of last resort for the correction of fundamental errors of fact or law – to enable him to revise the factual basis of his § 1001 conviction.

The term “coram nobis” is Latin for “before us” and the meaning of its full name, quae coram nobis resident, is “which [things] remain in our presence” Such a writ obviously cannot remedy the direct consequences of the conviction, the sentence, because he had already served that. Sunday hoped, however it could remedy the collateral consequences he still was suffering. Because the underlying facts of his guilty plea involved a false claim of United States citizenship, Sunday was ineligible to receive a visa or to be admitted to the United States under 8 USC § 1182(a)(6)(C)(ii). No waiver or exception is available. 

Sunday’s argument is not important, being as it is kind of plain vanilla attorney ineffectiveness. Rather, what is interesting is the use of the writ of error coram nobis. In its modern form, the writ is ordinarily available only to a criminal defendant who is no longer in custody. The movant must explain his failure to seek relief earlier through other means, must show that he continues to suffer a significant collateral consequence from the judgment being challenged, and must demonstrate that issuance of the writ will eliminate this consequence. After the movant has done all of that, then he must show that the judgment resulted from a fundamental error.

Even after the movant has jumped through all of those hoops, a court retains discretion to grant or deny the writ. As the 1st Circuit put it in the decision handed down last week, “the Supreme Court has always envisioned coram nobis as strong medicine, not profligately to be dispensed, so we must issue this writ under circumstances compelling such action to achieve justice.”

lazy170613Here, the Court concluded that Sunday had proven collateral consequences still dogged him, and it assumed without reaching the question that lazy Sunday could show why he had not sought relief before (such as in a 28 USC 2255 motion while he was on probation). The problem, the Court said, was that he could not show that his lawyer’s decisions were wrong, let alone ineffective. Clearly, the Court said, the government intended to re-indict Sunday if a deal solving the venue problem was not struck. Making a plea deal to a § 1001 violation that avoided prison was not a bad deal at all. And as for the admission that the false statement was on a passport application, that was the factual basis for the § 1001 conviction, so Sunday could hardly avoid copping to it. Not only was counsel not ineffective, but – even if he had been – Sunday was not prejudiced.

hailmary170613A coram nobis has always been a long-shot pleading. The Circuit said, “A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent.”

So, what’s next, Sunday? Given the current Administration, probably deportation.

Williams v. United States, Case No. 16-2147 (1st Circuit, June 8, 2017)

– Thomas L. Root

LISAStatHeader2small

Administration Sees Increase in Federal Inmate Numbers – Update for June 12, 2017

Leave a comment

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

LISAStatHeader2small
A WEEK’S WORTH OF FEDERAL PRISONER NEWS

The BOP will “welcome” an additional 4,171 inmates next year, with federal prison population estimated to reach 191,493 as the Dept. of Justice steps up prosecutions of illegal immigrants and drug offenders. This reverses the trend toward fewer inmates started by Obama.

The 2% estimate for fiscal 2018 was noted in a corner of a DOJ budget proposal released two weeks ago.

prison160523The prison budget increase will probably go mostly to private prison companies, which are stepping up lobbying efforts to win contracts to house thousands of new inmates and immigrant detainees. About 19% of federal inmates are currently in private prisons or re-entry centers, a proportion analysts say will increase because private prisons have more beds available than federal facilities. The BOP is currently running 14% above official capacity.

Last week, the Sentencing Commission released current statistics on the BOP population. It reported that

•    46% of all drug trafficking offenders were convicted of a drug offense carrying a mandatory minimum penalty, but fewer than half got the mandatory minimum. About 10% help the government, 10% got the safety valve and 8.3% got both.

•      Only 6.5% of federal inmates have a pre-Booker mandatory guidelines sentence.

•    Half of all inmates in the federal prison population were sentenced to more than ten years in prison, 5% were sentenced to 30 years or longer, and 3% to life in prison.

•      About 11% of all federal inmates have already served more than 10 years.

•   About 56% of all federal inmates were convicted of an offense carrying a mandatory minimum penalty.

mandatory170612Speaking of mandatory minimums, last week Senators Mike Lee (R-Utah), Dick Durbin (D-Illinois), Cory Booker (D-New Jersey), and Rand Paul (R-Kentucky) sent a letter to Attorney General Jefferson Beauregard Sessions III, seeking some answers about the analysis and thought that may have gone into the contents of the DOJ’s May 10, 2017 memorandum, which rescinded Eric Holder’s charging policies and directed federal prosecutors to pursue the most serious offense possible when prosecuting defendants. 

The letter observed that “in many cases, current law requires nonviolent first-time offenders to receive longer sentences than violent criminals. Sentences of this kind not only ‘undermine respect for our legal system,’ but ruin families and have a corrosive effect on communities.”

The letter, seeking a response within 30 days, asks detailed questions about the study done by DOJ leading to adoption of the new policy. Additionally, it asks whether “any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?” and whether “all applications of 18 U.S.C. § 924(c) result in fair sentences?”

Press Release, Sens. Send Bipartisan Letter Questioning DOJ Sentencing Policy (June 7, 2017)

Wall Street Journal, Federal Prison Population Expected to Grow Under Trump (June 8, 2017)

U.S. Sentencing Commission, Quick Facts: Federal Offenders in Prison – February 2017 (released June 7, 2017)

 – Thomas L. Root

LISAStatHeader2small

Hear the Words of Prudence – Update for June 8, 2017

Leave a comment

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

LISAStatHeader2small
JUST THE FACTS, MA’AM

No, Sgt. Joe Friday never really mouthed those precise words, although they succinctly capture the essence of the no-nonsense detective in the long-running series Dragnet.

dragnet170608Sgt. Friday was a man who was careful with the facts, and prudent in what he said. Our President could learn from him. So could today’s defendant, Eduardo Rodriguez.

Eddie pled guilty to conspiring to transport illegal aliens and was sentenced in June 2012. As part of his plea agreement, he agreed to waive his rights to appeal his conviction and sentence as well as his right to seek post-conviction relief.

But waivers are met to be ignored. So in July 2014, Eddie filed a motion for post-conviction relief under 28 USC 2255 complaining that his lawyer had not appealed his conviction and sentence. Sure, 28 USC 2255(f) requires that such motions be filed within a year of the case becoming final, a retroactive change in the law, or discovering new evidence. But Eddie covered that, claiming he did not find out his lawyer failed to file the appeal in July 2012 until October 2013.

The district court denied the 2255 motion as being untimely. On Monday, the 5th Circuit agreed.

A 2255 movant has a year to seek post-conviction relief, running from the latest of four possible dates, one of which is “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 USC 2255(f)(4). For this provision to apply, “a petitioner’s diligence must merely be ‘due’ or ‘reasonable’ under the circumstances.” Diligence can be shown by prompt action by the movant as soon as he is in a position to realize that he should act. In applying 2255(f)(4), the Circuit said, “the important thing is to identify a particular time when… diligence is in order.”

In his appeal, Eddie said that he had specifically instructed his lawyer to perfect an appeal of his sentence, and his lawyer said he would. Eddie said he had exercised diligence in trying to learn whether the appeal had been filed by making “several attempts to reach his counsel to inquire about his appeal,” and sending a letter to the district court requesting certain documents.

diligence170608But the 5th reviewed Eddie’s original 2255 filing in the district court, and noted that Eddie’s story had been a little different when he had first filed. There he said merely that he had “expressed to [his lawyer] his desires to prosecute an appeal,” and that the lawyer replied that “he would come visit to talk about the matter,” which he never did. Back then, Eddie only asserted that he “relied on the fact that he had notified his counsel about his intention to appeal his sentence.” In the 2255 motion, he asked the court to conduct an evidentiary hearing to determine whether he had directed his counsel to appeal.”

The Court of Appeals noted that Eddie had never alleged before the district court that his attorney had agreed to Eddie’s appeal request. Instead, Eddie merely assumed that, “during that period of time… counsel had filed his appeal.” What’s more, Eddie never asserted to the district court that he was diligent in contacting counsel to follow up, just that he had “‘made several attempts to obtain documents’ without specifying from where and from whom.”

Eddie told the district court that it “was not until October of 2013 that petitioner learned about the fact that his Counsel never filed the direct appeal has he instructed him to do so. During that period of time he thought that his counsel had filed his appeal. He tried to obtain these documents but it was… not until July of 2014 that he received the totality of the documents.” The 5th found that only evidence of Eddie “seeking documents” was a single letter he had written to the district court more than a year after the deadline for appealing expired.

prudence160608The appellate court said that even if the facts were as Eddie said they were, he was not diligent. Maybe his lawyer did abandon Eddie, as he said, but “attorney abandonment… does not, by itself, excuse a petitioner from his duty of diligence.” Complete inactivity by a defendant in the face of no communication from his attorney “does not constitute diligence.” Here, the Circuit said, Eddie’s district court allegations show, at most, “only attorney abandonment and not diligence in the face of same.” Eddie’s assumption that his lawyer had filed a notice of appeal, even after he failed to show up for the promised visit with Eddie about the matter, was not diligent. Eddie waited a year and three months after the appeal deadline had passed to write to the district court asking for documents.

The 5th Circuit said, “Diligence under Sec. 2255(f)(4) requires more.”

Eddie was careless and summary in his treatment of the facts in his 2255 motion. By the time he awoke to the particularity of the showing he needed to make, he was on appeal and it was too late to clean up the mess he made.

Rodriguez v. United States, Case No. 15-40357 (5th Circuit, June 5, 2017)

– Thomas L. Root

LISAStatHeader2small

The Difference Between a Lawyer and a Rooster – Update for June 7, 2017

Leave a comment

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

LISAStatHeader2small
MY LAWYER IS A M*****F*****

There is an old riddle asking the difference between a lawyer and a rooster. The answer, of course, is that a rooster clucks defiance.

screw170607Defendants often complain that their lawyers screwed them. Seldom is there a case where everyone else complains that defense counsel screwed the defendant’s mother… and means that in the most literal sense.

Johnathan DeLaura had a serious problem, having been charged with multiple child pornography counts after being caught in a “sting” that left him on the losing side of a mountain of evidence. Johnathan’s mother, who undoubtedly believed in her son’s innocence, located lawyer Gary Greenwald and made the fee deal: she paid Gary a $25,000 retainer against future work and he began representing Johnathan.

The “horizontal fee” is an infamous legend in the legal profession, if not in the plush offices of the white-shoe law firms, then certainly in the shabby corridors of sole practitioners who survive on court appointments and the occasional paying client. A “horizontal fee,” of course, is payment for legal services exacted by the lawyer in a horizontal and unclothed position, that is to say, payment in sex instead of in money.

Sometime after Gary began representing Johnathan, the U.S. Attorney’s Office had reason to believe that the lawyer was having a sexual affair with Johnathan’s mother. No one knows for sure whether such an affair occurred (except for Gary and Mom). If their sexual tryst happened at all, it began when Mom hired Gary and ended a few months later, right about the time Johnathan took a plea deal.

aba170607The prosecutor confronted Gary with his suspicions. Gary coyly answered some questions but refused to answer others, leaving the Assistant U.S. Attorney believing that Gary “certainly suggested to us that the information that we had received was, was correct.” The conversation led the prosecutors to believe that Gary had forgiven “significant legal fees” in connection with the relationship. The classic “horizontal fee.”

The AUSA reported his suspicions to the district court, telling the judge he believed there was a potential conflict, that the conflict was personal and sensitive, that Gary denied any conflict, that a hearing on the conflict was necessary, and that Johnathan should have independent counsel to advise him on the conflict.

The judge called the prosecutor and Gary into chambers, and asked Gary about the allegation in what the Court of Appeals called “an eyebrow-raising colloquy.” Gary refused to answer the judge’s questions, and suggested the judge instead deduce the answers from the plot of an underperforming 2000 movie named The Contender. The appalled judge, said: “You won’t deny it. You won’t deny it. You want to invoke a movie, that’s fine. So let’s have the hearing.”

At the hearing, the district court appointed another lawyer to give Johnathan independent advice, and the government explained its concerns. Gary again refused to answer questions about his relationship, if any, with Johnathan’s mother. This put the court in a quandary, because the law requires that – which a conflict of interest charge is leveled – the court first has an “inquiry” obligation, to investigate the facts in order to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all. Only then is there to be a hearing at which the defendant may waive the conflict (if possible) or ask for new counsel.

The district court did what it could, and during the hearing asked Johnathan if he wanted to waive the conflict, assuming for the sake of argument that there even was a conflict. Johnathan said he would waive the conflict, but employed enough logic to knot a pretzel stick:

If a sane person were to listen to this and say the allegation is true, then logically they would know that there obviously is a conflict and they would never accept anything. They would throw this away… [T]o state to me “okay, you have to assume that this is true and then make a decision upon that,” well, logic would, would–you know, it would be illogical to continue if it were true.

The court reluctantly accepted this “waiver” and went forward. Ultimately, Johnathan got a 400-month sentence.

conflictmix170607After reflecting on the reality of what a 35-year sentence meant, Johnathan appealed – now represented by a different lawyer – alleging that Gary had a conflict of interest (and that his deal with the government gained him nothing). Meanwhile, Gary died, meaning that he is likely to be only marginally less forthcoming in any future testimony. Two days ago, the 2nd Circuit – clearly troubled by the whole affair – turned down his appeal, while virtually assuring him of a hearing on any forthcoming 2255 motion.

So, assuming the fact as alleged are right, what might the conflict be? The Circuit accepted the government’s analysis:

(1) because his relationship with Mom ended, Gary might bear a grudge against Johnathan or might want to spend as little time with him as possible;

(2) given the ethical and personal problems with the relationship, Gary might have an interest in rolling over for the prosecution, in order to persuade the government not to report him to the disciplinary committee; or

(3) the fee arrangement may have been based on the relationship, so that when Gary was no longer scoring with Mom, he might just want to end the representation quickly knowing he wasn’t going to be paid anything more.

The appellate panel framed the problem as this: If the waiver is valid, Johnathan has no claim. But if the waiver is invalid – either because the conflict is unwaivable, because it was not knowing and intelligent, or because the district court failed to make the required inquiry – then the Circuit has to consider the underlying conflict claim itself. If the conflict were potential, Johnathan would have to show it somehow prejudiced him. If the conflict were actual, however, he would only have to make the lesser showing of adverse effect.

shark170607The 2nd complained that “this record allows us to answer few of those questions. We do not know whether there was a sexual relationship (or its timing, duration, or terms), whether a conflict arose from it, whether that conflict was so severe as to be unwaivable, or whether DeLaura was harmed by it. An evidentiary hearing would be needed to sort this out. Because the Supreme Court has expressed a preference for resolving ineffectiveness claims on collateral review… we affirm the conviction rather than remand the case to the district court. But in the event DeLaura’s new attorney files a habeas petition, we think an evidentiary hearing may be in order and that DeLaura’s ineffectiveness claim would merit searching evaluation.”

The Circuit’s deferral of the question is unremarkable. The same, however, cannot be said of the facts. We are puzzled that the district court did not call Mom to the stand during the hearing and ask her. Whatever the reason, Mom’s visits to her son must be pretty interesting.

United States v. DeLaura, Case No. 14-1204 (2nd Cir., June 5, 2017)

– Thomas L. Root

LISAStatHeader2small

Supreme Court Decides Two Forfeiture Cases, Picks Up Cellphone Data Case for Next Term – Update for June 6, 2017

Leave a comment

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

LISAStatHeader2small
SUPREME COURT DECIDES TWO FORFEITURE ISSUES, GRANTS CERT ON CELLPHONE DATA QUESTION
singer170606
Terry Honeycutt was just a clerk, not an owner – but the Court of Appeals tried to stick him for the illegal profits.

The Supreme Court was busy yesterday – as it will be all this month – deciding two cases that relate directly or indirectly to the monetary side of sentencing and granting certiorari in a Detroit robbery case on a cutting-edge cellphone data issue.

In Honeycutt v. United States, a 6th Circuit case, the Court held that forfeiture under the Comprehensive Forfeiture Act of 1984, 21 USC § 853(a)(1), which requires forfeiture of any property “constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” some drug crimes, is limited to property that the defendant himself actually obtained as the result of the crime.

This means that the statute cannot require forfeiture by Terry Honeycutt, the petitioner in the case, who was a clerk at his brother’s grain and feed store. Terry and his brother sold large quantities of an iodine-based water purification product that they knew could be used to manufacture methamphetamine. Terry had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. Despite this, the government asked the district court to hold Terry jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the profits from the conspiracy. The district court refused, holding that Terry was a salaried employee who had not received any profits from the sales.

The 6th Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds.

Yesterday, the Supreme Court said that because forfeiture under 21 USC § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, a court cannot order forfeiture from Terry Honeycutt, who had no ownership interest in his brother’s store and made nothing from the sales.

Honeycutt v. United States, Case No. 16-142 (June 5, 2017)

LISAStatHeader2small

The Securities and Exchange Commission has authority to investigate violations of federal securities laws and to bring enforcement actions in district court if its defendant “disgorge” illegal profits and pay civil fines.

limitations170606In 2009, the SEC brought an enforcement action against Charles Kokesh, arguing he has violated securities laws by concealing $34.9 million he had unlawfully pocketed from four business- development companies from 1995 to 2009. The Commission asked for civil penalties and disgorgement.

A jury found for the SEC, but the district court held that a 5-year limitations period in 28 USC § 2462 applied to the monetary civil penalties but not the disgorgement. The 10th Circuit agreed, holding that disgorgement was neither a penalty nor a forfeiture.

Yesterday, the Supreme Court reversed the 10th Circuit, concluding that SEC disgorgement operates as a penalty under the terms of 28 USC § 2462. Therefore, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim arose. Because a lot of what Kokesh did was older than 5 years when the suit was brought, those sums will have to be carved out of the district court award.

The decision could have favorable implications for some forfeiture and restitution issues in federal criminal cases.

Kokesh v. SEC, Case No. 16-529 (June 5, 2017)
LISAStatHeader2small

Finally, the Court granted certiorari and agreed to review a 6th Circuit decision in which Timothy Carpenter was convicted of multiple counts of aiding and abetting the use of a gun in a series of cellphone store robberies. Tim was the lookout man/getaway driver, and did not carry a gun himself.

cellphoneloc170606Tim was convicted on six counts of robbery after police combed through a month’s worth of location points collected by cell towers and placed him near storefronts where armed robberies occurred. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Tim’s cellphone. The several months’ worth of historical cell-site records received showed which cell towers were linked to which cellphone while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Tim’s cellphone connected with cell towers in the vicinity of the robberies.

Tim argued in district court and at the 6th Circuit that the records should be suppressed because the government had not obtained a warrant for them. The 6th rejected Tim’s argument that disclosure of his phone records was a search for which the government needed a warrant, holding cellphone companies collect the location data “in the ordinary course of business” for their own purposes. What’s more, the Circuit said, Tim had no reason to think his cellphone records would be kept private, the court explained, because the records only show his cellphone connecting to specific cell towers, without providing any information about the content of his calls.

The U.S. Supreme Court picked the Carpenter case from a thundering herd of similar cert petitions to rule on the question of whether law enforcement is required to obtain a probable-cause court warrant to access such cellular location data.

“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Wessler, a staff attorney with the ACLU Speech, Privacy and Technology Project said in a statement. “The time has come for the Supreme Court to make clear that the longstanding protections of the 4th Amendment apply with undiminished force to these kinds of sensitive digital records.”

Carpenter v. United States, Case No. 16-402 (certiorari granted  on June 5, 2017)

International Business Times, Can Police Track Your Phone Without Warrant? Supreme Court To Decide On Location Data (June 5, 2017)

Amy Howe, Justices to tackle cellphone data case next term, SCOTUSBlog.com (June 5, 2017)

– Thomas L. Root

LISAStatHeader2small

A Pair of Second-and-Successive 2255 Decisions – Update for June 5, 2017

Leave a comment

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

LISAStatHeader2small
AVENUES FOR SECOND-AND-SUCCESSIVE 2255 MOTIONS NARROWED

Most everyone is familiar with the rule that a defendant cannot file a second motion under 28 USC 2255 without prior permission from the court of appeals, granted under 28 USC 2255(h). To get permission, generally, a prisoner has to show either that there is a new retroactive change in the law made by the Supreme Court, or that there is some newly-discovered evidence – that could not have reasonably been found before – which will just about assure that he or she would have been found not guilty.

courthouseclosed170605The 9th and 11th Circuits handed down decisions on second-and-successives last week that restrict the ways prisoners can obtain leave to file. The 9th Circuit decision on intervening judgments is relatively unsurprising; the 11th Circuit decision – which drew a concurrence joined by two of the three judges on the panel denouncing the precedent the decision was obligated to follow – cements the 11th Circuit’s reputation as the most unfriendly forum for a federal prisoner seeking a means to raise a constitutional issue after his or her own go-around with a 2255 motion.

LISAStatHeader2smallNinth Circuit – Sentence Reduction Win Does Not Reset the 2255 Clock

If a defendant is lucky enough to have an intervening judgment, however, the clock is reset. So if Donnie Defendant wins a 2255 motion saying his lawyer messed up his sentencing, getting resentenced as a result, he will then be able to appeal the new sentencing and, after that, file another 2255 motion without getting any special permission.

reductions170605Chris Sherrod filed and lost his 2255 motion in 2014. The next year, however, he won a reduction in his drug sentence under 18 USC 3582(c)(2) based on the Sentencing Commission’s 2-level reduction issued in 2014.

After that, Chris filed another 2255 motion, arguing he did not need permission for a second-and-successive 2255, because the 3582(c)(2) sentence reduction was a new, intervening sentence. Last week, the 9th Circuit disagreed.

The Circuit said a 3582(c)(2) resentencing is “intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” A district court ruling on a 3582(c)(2) makes only a limited adjustment to the sentence, and claims of error at the original sentencing cannot be raised.

For that reason, the 9th joined the 5th and 7th Circuits in holding that a 3582(c)(2) sentence reduction does not qualify as a new, intervening judgment, and therefore “does not wipe clean the slate of habeas applications that a prisoner has previously filed.”

Sherrod v. United States, Case No. 16-72178 (9th Cir., June 2, 2017)

LISAStatHeader2smallEleventh Circuit – Mathis Does Not Allow Raising Old Issue in Second 2255, No Matter How Wrong The Prior Denial Might Have Been

Orestes Hernandez was sentenced to 775 months imprisonment, 300 months of which came from three mandatory-minimum enhancements he got under 18 USC 924(c) for using a gun. After his conviction, he filed a 2255 motion that was denied.

Sentencestack170404After the 2015 decision in Johnson v. United States, Orestes asked for permission to file a second 2255 arguing that the three 924 convictions were no longer based on a crime of violence. The 4th Circuit denied his application, reasoning that his indictment showed that he was convicted under the Hobbs Act subpart that required a use of force.

However, after the decision in Mathis v. United States last summer, Orestes filed for permission to try a 2255 motion again. Using the rules outlined in Mathis, he said, there was no way his Hobbs Act conviction could be considered a crime of violence under 924(c)(3)(A)’s use-of-force clause.

Last week, the 11th Circuit denied him permission to go forward. A year ago, the Circuit handed down In re Baptiste, which held that under 28 USC 2244(b)(1) – which governs second-and-successive 2255 applications – a claim presented in the second-and-successive application that was raised in a prior application must be dismissed. Because Orestes previously filed a second-and-successive application based on Johnson, the 11th said, Baptiste prohibits his filing again.

Orestes argued that Mathis permitted the filing, but the appeals panel said “Mathis does not provide an independent basis for his application, as the Supreme Court’s holding in Mathis did not announce a ‘new rule of constitutional law’” under 28 USC 2255(h). Instead, Mathis just “provided guidance to courts in interpreting an existing criminal statute. “

eye-needle170605In a concurring opinion, Judge Martin (joined by Judge Jill Pryor) denounced the Baptiste rule. “Mr. Hernandez asks us to make sure the crimes he was charged with qualify as crimes of violence so as to justify the 25 extra years he received under § 924(c),” they said. “However, we are barred from reviewing his application by In re Baptiste… which held that ‘the federal habeas statute requires us to dismiss a claim that has been presented in a prior application’ to file a § 2255 motion. I have stated my view that this bar created by our Court in Baptiste has no basis in the text of the habeas statute.”

In re Hernandez, Case No. 17-11989E (11th Cir., May 31, 2017)

– Thomas L. Root

LISAStatHeader2small

Dying to Get His Money Back – Update for June 2, 2017

Leave a comment

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

LISAStatHeader2small
DEATH TAKES A HOLIDAY

death170602Every few years, a notorious criminal defendant – think Aaron Hernandez or Enron’s Kenneth Lay – has the temerity to die before his appeals process is complete. When that happens, the common law doctrine of abatement ab initio is applied, and the indictment is dismissed.

What follows is a predictable hue and cry from the public that the deceased, having been found to be a scumbag, should not get a pass just because his appeals were not exhausted.

In federal court, when a convicted defendant dies while his directappeal as of right is pending, his death abates not only the appeal but also all prior proceedings as well. To effectuate this common law rule of abatement ab initio, appeals courts vacate the judgment and remand the case to the district court with instructions to dismiss the indictment. That’s the “ab initio” part: it’s not just the appeal that disappears, and the case is not simply dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never even been indicted. It’s ab initio, that is, “from the beginning.”

The doctrine of abatement arises from notions of due process: that the interests of justice ordinarily require that a defendant not stand convicted without resolution of the merits of an appeal. As one court put it, when “death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an integral part of our system for finally adjudicating his guilt or innocence.”

In 2015, Tom Libous, a long-time denizen of the ethical swamp that constitutes the New York State Senate, was convicted of making false statements to the FBI. He was already dying of prostate cancer when the Feds decided to pile on, and died in a hospice before his appeal was decided by the 2nd Circuit.

gvtsteal170602Consistent with abatement ab initio, the government agreed that his conviction should be vacated and the indictment dismissed. However, before Tom passed, he had paid a $50,000 fine and $100 special assessment. Proving once again that guys like Bernie Madoff are rank amateurs next to Uncle Sam, the government contended that while Tom’s corpse may be innocent, his next-of-kin were not entitled to get the money back. The government’s argument, reduced to its essence, was that the policies underlying abatement ab initio do not require the abatement of a paid fine.

This week, the 2nd Circuit told the government to get out its checkbook. The Court said it was pretty simple: because Tom Libous (or at least his memory) “stands as if he never had been indicted or convicted, at least in the eyes of the criminal court… he is no longer a wrongdoer. There is no legal basis on which the state can retain a fine exacted from Libous as punishment for an offense he is now presumed not to have committed. Once Libous’s conviction is vacated, the state is as much entitled to retain the fine as if Libous had been acquitted. And in our system of criminal justice, the state is not permitted to charge the accused for the privilege of having been prosecuted.”

Citing a recent Supreme Court decision, the Circuit said that “once a defendant’s conviction is erased, the presumption of his innocence is restored,” and the state “has no interest in withholding from [a defendant] money to which the state currently has zero claim of right… At bottom, the state may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

moneyback170602The government pulled out all the stops, even arguing that a fine already paid was just like time already served: time served cannot be refunded, so why should money already paid? The 2nd made short work of that argument: “We find the analogy inapt,” the Court said. “That time served cannot be abated is a principle of nature, not of law. A paid fine, by contrast, can easily be returned to the defendant’s estate.”

That is exactly what will happen to the $50,100. Tom’s widow gets it.

United States v. Libous, Case No, 15-3979 (2nd Cir., May 30, 2017)

– Thomas L. Root

LISAStatHeader2small

The Box Gets Even More Banned in New York – Update for June 1, 2017

Leave a comment

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

LISAStatHeader2small
EX-OFFENDER EMPLOYMENT RIGHTS GET A BOOST

banbox170601It’s no secret that ex-offenders find job prospects daunting upon their release from prison. Given a choice, especially in this litigious society, employers will pass on hiring someone with a felony conviction, if not for irrational fear that their employee will embark on a jobsite crime spree, then because if someone claims injury from what the employee does at work, the employer will be squirming in the witness chair trying to justify to a skeptical jury why he or she hired a criminal.

In the past few years, there have been some initiatives to “ban the box,” that is, to remove the question from employment applications about prior felony convictions. The states and cities that have passed laws banning the box largely limit the ban to government employment, and often only defer an employer’s asking the felony question until later in the employment process.

A notable exception is § 296(15) of New York State’s Human Rights Law, which prohibits discrimination on the basis of criminal record, unless there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or (2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

excon170601Yesterday, the 2nd Circuit put some teeth in the statute. Tranthony Griffin and Mike Godwin worked for Astro Moving, an agent of Allied Van Lines, a local mover who had signed a contract to be part of the Allied system. One of the terms of the contract prohibited Astro from employing people convicted of certain types of crimes. The local mover had discovered Tranthony and Mike had records, and fired them.

Tranthony and Mike sued Allied, arguing that it was liable for violating § 296(15) by aiding and abetting Astro’s violation through its contract. The district court threw out the suit, holding that Allied was not the guys’ employer, but rather Astro was.

The 2nd Circuit used a process known as certification, sending three state law questions over to New York State’s highest court for interpretation. The New York Court of Appeals sent answers back to the 2nd Circuit, which yesterday reversed the district court and sent the case back for trial.

realboss170601New York law determines whether an entity is an employer based on whether it controls (1) the selection and engagement of the employee; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the employee’s conduct.” The control Allied had over ordering and controlling whether Tranthony and Mike could be employees may be enough to make Allied into their employer, at least for purposes of the Human Rights Law.

The New York Court of Appeals also ruled that the Human Rights Law could reach out-of-state defendants like Allied.

The case will return to district court, where Tranthony and Mike will be allowed to make their case.

The ruling may prevent local employers, such as retail stores, fast-food establishments and service facilities, from hiding behind contracts with out-of-state entities in banning ex-felons from employment. At the same time, it may convince nervous employers to err on the side of caution, and simply avoid asking the question about prior record altogether. To be sure, it protects employers from being accused of negligence for hiring ex-offenders in the first place.

Griffin v. Sirva, Inc., Case No,. 15-1207 (2nd Cir., May 31, 2017)

– Thomas L. Root

LISAStatHeader2small

Easter Bunny, Unicorns, and Low-Level Drug Offenders Don’t Exist! – Update for May 31, 2017

Leave a comment

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

LISAStatHeader2small
 DOG BITES MAN

Dogbite160314The debate over the May 10th release by Attorney General Jefferson Beauregard Sessions III of a new directive that effectively cancels the 2014 Holder memorandum continues to rage. Predictably, federal prosecutors love the Sessions Memo. Dog bites man!

Last week, to the shock and amazement of absolutely no one, the National Association of Assistant United States Attorneys – the private association of AUSAs that helped sink federal sentencing reform last year by arguing that there is no such thing as a nonviolent drug offender – now argues that there’s no such thing as a low-level drug offender in the federal system, and that all the Sessions Memo does is to force prosecutors to carry out the will of Congress.

“There’s nothing… other than Eric Holder’s own personal opinion of what he considered to be a low-level offender, that provides that we should ignore the law,” Steve Wasserman, NAAUSA treasurer, told reporters last Thursday. He argued that the law as written by Congress already includes several “safety valve” provisions, and the discretion given to senior prosecutors under the Sessions Memo already provides ample avenues for sparing the truly deserving from long terms in prison.

The mandatory minimum sentences that sentencing reform advocates and their supporters in the media oppose, he said, apply only to weights that are atypical of personal use or small-scale dealing. Besides, even when mandatory minimums do cut in, NAAUSA argued, that “doesn’t necessarily mean that the person initially charged with the mandatory minimum is going to end up with the mandatory minimum sentence. In fact, only about 13% of our federal prisoners are serving mandatory minimum sentences and the reason for that is that even though we may charge, the individual may meet the safety valve requirement… or they may be someone who is willing to cooperate with us … that allows us to go back to the court… and explain that this is someone who has provided us with what we call ‘substantial assistance’ which allows the court to reduce the mandatory minimum.”

bling170531What NAAUSA is really saying is that the Sessions Memo once again makes it open season on black defendants. In an amazingly candid admission, Larry Leiser – a current federal prosecutor and NAAUSA president – the president of the group and a current prosecutor, told reporters on a conference call last Thursday that the Sessions Memo will let AUSAs aggressively prosecute drug crimes committed by people “wearing heavy gold and chains and hot cars as a result of their participating in the distribution of these drugs, as opposed to going out and earning an honest living.”

When a reporter braced Leiser, asking whether the remark could be construed as racist, Leiser responded, “It’s intended to be just the reality that unfortunately there are many people in the minority communities that are caught up in this terrible blight of drugs.”

Sessions’ resumption of the “get tough” policies that reigned before the 2014 Holder Memo comes as The Economist again published a withering critique of the American system of incarceration. The magazine reported that Barack Obama’s reform “caused a modest reduction in the number of federal prisoners (who are about 10% of the total). Donald Trump’s attorney-general, Jeff Sessions, has just torn it up. This month he ordered prosecutors to aim for the harshest punishments the law allows, calling his new crusade against drug dealers ‘moral and just’. It is neither.”

The Economist observes that “a ten-year sentence costs ten times as much as a one-year sentence, but is nowhere near ten times as effective a deterrent. Criminals do not think ten years into the future. If they did, they would take up some other line of work. One study found that each extra year in prison raises the risk of reoffending by six percentage points. Also, because mass incarceration breaks up families and renders many ex-convicts unemployable, it has raised the American poverty rate by an estimated 20%.”

pros170531Unfortunately, the problem – whether under Obama or Trump or any of their predecessors – is simply this: DOJ is run by prosecutors. “Despite an obvious conflict of interest,” former AUSA and law professor Mark Osler writes, “the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.”

A building full of prosecutors, Osler argues, will instinctively push back against criminal justice reforms, regardless of whether a president is hostile to reform or is as progressive as was Obama. Osler notes that while “it seemed President Obama was sincerely committed to reforming federal criminal law, his results were disappointing. And though some of this failure can be blamed on a recalcitrant Congress, that excuse only goes so far. A close examination of Obama’s record shows that many of the administration’s reforms were subverted by the DOJ, not Congress.”

Nowhere is this more evident than in the position of NAAUSA, whose members are current criminal division line AUSAs. “We at the federal level don’t prosecute ‘low-level drug offenders’,” Wasserman declared, but rather only people in the trafficking business.

In other words, Reason’s Jacob Sullum notes, “you can’t be a low-level drug offender if you participate in distribution. Hence the phrase ‘low-level drug dealer’ is, according to Wasserman, oxymoronic.”

unicornbunny170531NAAUSA’s position on the issue is sophomoric, yet unsurprising from a prosecutorial mindset. There is no distinction between someone who becomes addicted to opioids because of an injury, supplying his or her habit by selling extra pills, and the leader of a gang selling heroin on the streets of an inner city and protecting its business with guns and violence. If you sell, you’re a trafficker, and all traffickers are high-level and violent. As Sullum argues, “it is possible to draw distinctions among people convicted of trafficking, based not only on the amount of drugs involved but also on the role the offender played. A courier or street dealer might participate in an operation that handles a large quantity of drugs, but he is still on a low level compared to the people running the operation.”

While NAAUSA denies that any federal drug offenders are “low-level” or “non-violent,” at the same time it argues the law “already provides ample avenues for sparing the truly deserving from long terms in prison.” The avenue is principally sentence reductions for defendants who provide “substantial assistance” to the authorities or who qualify for the statutory “safety valve” (which lets qualifying nonviolent, low-level drug offenders avoid mandatory minimum sentences) It must be hard for NAAUSA to posit such a claim while at the same time denying that such things as “low-level” or “non-violent” drug trafficking defendants exist.

Breitbart.com, Federal Prosecutors Hit Back at Media Criticism of Sessions Sentencing Memo (May 29, 2017)

The Daily Caller, Federal Prosecutor Says DOJ’s New Focus On Drug Crimes Will Target People Wearing ‘Heavy Gold And Chains’ (May 25, 2017)

Economist, America’s prisons are failing. Here’s how to make them work (May 27, 2017)

Mark Osler, The Problem with the Justice Department, The Marshall Project, (May 31, 2017)

Jacob Sullum, Federal Prosecutors Say They Never See Low-Level Drug Offenders, Reason.com (May 30, 2017)

– Thomas L. Root

LISAStatHeader2small

“Any Last Words?” — Allocution Prejudice Is Once Again Presumed – Update for May 30, 2017

Leave a comment

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

LISAStatHeader2small
SPEAK NOW OR FOREVER HOLD YOUR PEACE

For more than 300 years, courts have recognized that a criminal defendant has a right to speak directly to the court before sentence is imposed. The judge’s failure to ask a defendant if he had anything to say – known as the right of allocution – traditionally has always required reversal. After all, as the Supreme Court put it, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

allocution170530The allocution cases that make it to appeal inevitably result because the judge forgets to offer the defendant the right, and the defense attorney fails to notice the omission. In those cases – because no objection has been lodged – in order to complain about the mistake, a defendant had to show “plain error” that prejudiced him, affected his “substantial rights” as Federal Rule of Criminal Procedure 52 puts it.

Until the Guidelines came along in 1987, the courts always assumed that a defendant had been prejudiced if he or she was denied allocution, because the right had “symbolic meaning that lent legitimacy to the sentencing process.” But after the Guidelines, courts ruled that prejudice could be found only if a defendant was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Until United States v. Booker – that is, for about 18 years – the Guidelines were mandatory, meaning the judge had virtually determined by the Guidelines’ confusing calculus.

This meant that if a defendant had a mandatory sentencing range of, say, 108-121 months, and the judge sentenced him or her to 108 months, the defendant could not claim prejudice because he or she was denied a chance to speak, because practically speaking, the defendant had already gotten the best deal he or she could possibly get. No harm, no foul.

guidelines170530Then the Guidelines became advisory. Yet in the 12 years since Booker, no court has bothered to change the “no prejudice” rule. Thus, when Tony Doyle appealed the fact the district court forgot to give him his right of allocution, the government argued that because Tony had gotten sentenced at the bottom of his Guideline range, the denial of the right to allocate did not hurt him.

Last week, the 11th Circuit said it was time to pitch the old Guidelines “no prejudice” presumption. Pointing out that Booker brought a “sea change” in sentencing practices, the Circuit said “a sentence outside the guidelines range is not the extraordinary event that it once was.” In fact, during 2016 almost half of the sentences handed out in the 11th Circuit were below the Guidelines range.

“Because Booker knocked out” the premise that the bottom of the Guidelines range was as good as it was going to get for the defendant, the Circuit said, “a defendant will generally be entitled to a presumption that he was prejudiced by the district court’s failure to afford him his right of allocution, which will satisfy the plain error rule’s third requirement, even if he received a sentence at the low end of his advisory guidelines range.”

United States v. Doyle, Case No. 14-12818 (May 25, 2017)

– Thomas L. Root

LISAStatHeader2small