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YESTERDAY’S NEWS

Criminal justice news was dominated yesterday by more Obama Administration grandstanding on clemency, as the outgoing President commuted 153 sentences and pardoned another 78 people who had already done their time. Although the pardons spanned a variety of offenses from perjury to manslaughter, the commutations were again all for drug offenders.

None of the pardoned offenders was Hillary Clinton, Chelsea (née Bradley) Manning or Edward Snowden. Deputy Attorney General Sally Q. Yates said Obama is not done. “Today, another 153 individuals were granted commutations by the President. Over the last eight years, President Obama has given a second chance to over 1,100 inmates who have paid their debt to society. Our work is ongoing and we look forward to additional announcements from the President before the end of his term.”

With yesterday’s announcement, Obama has commuted 62.3% of his self-proclaimed goal of 2,000 sentences. No panic. He still has 30 days left.

In more interesting news, the U.S. Court of Appeals for the 1st Circuit reversed the racketeering convictions of Massachusetts Probation Office chief Jack O’Brien and two other senior officials who had “abused the hiring process to ensure that favored candidates were promoted or appointed in exchange for favorable budget treatment from the state legislature and increased control over the Probation Department.”

The Probation Office had detailed and influence-neutral hiring procedures in place. However, while the senior officials assured Massachusetts judges that the Office was following the handbook, they in fact hired unqualified candidates favored by influential lawmakers to ensure that they maintained “a good rapport with the legislature to facilitate a beneficial budget to the Probation Department.” The scheme unraveled in 2010 when the Boston Globe reported that ‘After 12 years in charge, Jack O’Brien has transformed the Probation Department from a national pioneer of better ways to rehabilitate criminals into an organization that functions more like a private employment agency for the well connected…”

The Feds, never ones to overlook a chance to capitalize on a high-profile story, obligingly indicted the three under the Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d). After a 47-day trial, a confused jury convicted them of the RICO conspiracy and a few of the underlying mail-fraud counts, but acquitted them of bribery.

Holding that “not all unappealing conduct is criminal,” the 1st Circuit yesterday held that the RICO charge was not proven. The Court said that just showing that goldbricks and idiots were hired “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future” was not enough: the government had to show that the hiring of sponsored applicants was linked to a specific official act by the sponsor.

The Circuit threw out the mail fraud convictions as well. The government argued that use of the mails to send unsuccessful candidates their rejection letters was enough to bring the case under the mail fraud statute, because “such rejection letters in a corrupt hiring system satisfy Sec. 1341‘s mailing element where they help to maintain a facade of a merit-based system.” The appellate court rejected this argument:

The Government presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous function. Had unsuccessful applicants received no notice, they may have assumed they were not hired or else called OCP to check their status. The Government identifies language in the rejection letters stating that “[t]he selection of the final candidate was a difficult process” and that the deputy commissioners “were very impressed with [the recipients’] qualifications” to demonstrate that the letters were intended to convince rejected candidates that their selection was based on merit. We are not convinced that such vague platitudes, hallmarks of any rejection letter, sufficiently demonstrate that the rejections had any real tendency to convey a merit-based selection system.

The Court also dismissed Government arguments that the rejection letters “tended to perpetuate the scheme by making the rejected applicant less likely to call to inquire as to his status, thereby making it less likely that such a call might lead to some inquiry that would uncover the scheme.” The Court characterized this argument as “rank speculation,” saying that the” Government’s evidence provided no plausible mechanism by which a call from a rejected applicant asking about his or her status would lead to the discovery of the scheme.”

Clearly, the 1st Circuit panel found the Government’s use of RICO – originally intended to fight the Mafia – on a two-bit political patronage scheme to be akin to the application of a meat axe where a scalpel would have sufficed.

United States v. Tavares, Case No. 14-2313 (1st Cir., Dec. 19, 2016)

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IT’S QUIET OUT THERE… TOO QUIET

President Obama has gotten strangely quiet about granting clemencies since his last 79 commutations right before Thanksgiving. He’s granted 1,023 commutations so far and denied 14,485, without much pattern as to why some are granted and many are turned down. As of today, there are 13,042 petitions still on file and only 32 days left to do something about them.

Last week, another coalition of ex-prisoners, advocates, defense attorneys and former prosecutors joined the chorus urging Obama to grant blanket clemencies to drug offenders before his term ends January 20.

But at a breakfast event last week, Attorney General Loretta Lynch poured cold water on the notion of any blanket commutation. “When you’re talking about clemency,” she said, “…it’s a very individualized decision. I think it would be hard to craft a system for a blanket commutation of a class of people.”

Some have suggested that the pace of commutations has slowed because the President is preparing a sweeping clemency gesture. After issuing two batches of commutations monthly since September, the Obama pen has lain dormant for almost 4 weeks. With time to act on the remaining applications waning, there is little explanation for the inaction other than plans are underway for a major clemency action.

We’ll know in a month.

Wall Street Journal, Barack Obama Weighs Final Requests for Clemency (Dec. 17, 2016)

CNN, AG Loretta Lynch says don’t expect blanket pardons from Obama (Dec. 15, 2016)

HOPE FOR SENTENCING REFORM IN THE NEW YEAR?

Based on their public comments, President-elect Trump and Attorney General-designate Jeff Sessions may well roll back federal oversight of troubled police forces, escalate the war on drugs, enlarge the role of private prisons, accelerate deportations, and use the threat of financial sanctions to challenge so-called sanctuary cities.

But those inclined to look for a silver lining in 2017 may find one on Capitol Hill.

A New York Times/Marshall Project analysis last week suggested four reasons why the odds of sentencing reform may be better than critics fear.

First, 2017 is not an election year, meaning legislators have less to from critics for take unpopular stands. Second, President Obama will be gone, and with him the almost fanatical resistance to any position urged by the President. Third, one of sentencing reforms biggest opponents, Jeff Sessions, will be gone from the Senate. While as attorney general, Sessions will be able to encourage a presidential veto, he won’t be be joining the obstructionists who this year never let a sentencing reform bill come to a vote at all. Finally, the Republican leadership will be looking very hard for bipartisan successes to demonstrate that Washington is no longer in a state of ideological paralysis. On the short list of things Congress could do to reassure voters that government is back in business, criminal justice ranks near the top.

The Marshall Project, Why Congress May Bring Criminal Justice Reform Back to Life (Dec. 16, 2016)

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TAKE MY WIFE… PLEASE

Almost everyone (us included) discusses federal criminal sentences in terms of months of incarceration. Although every imprisonment is followed by a statutorily-required term of supervised release, we tend to treat that as an afterthought.

It’s not. Rather, supervised release is one of those ideas that is great political theater and a great job creator for the United States Probation Office. As far back as 1994, public defenders observed that “supervised release, as it now operates, is far different from what Congress intended… What was originally designed to assist re-integration into the community is instead facilitating reincarceration.” Two years ago, a senior officer in the Probation Office for the Northern District of Ohio publicly stated that a third of all people his office supervised would be violated during their term of supervised release, a figure that suggested a failure of the system rather than a failure of the ex-offenders.

There appears to be little research on the effectiveness of supervised release, permitting us to speculate that system-wide, it provides as few useful services to ex-offenders and as many snares for the unwary as our own observations and anecdotal evidence suggests. Primarily, supervised release focuses on collecting restitution payment from ex-offenders on pain of revocation and re-imprisonment. Think of probation officers as debt collectors who can jail debtors who don’t pay enough.

But occasionally, even we – as jaded as we are – can be awed by the majesty of the arrogance of supervised release. Today’s case is one of those examples. In 2009, Cindy Hobbs and her husband were convicted of the quintessential white-collar offenses of identity theft and bank fraud conspiracy. Cindy did her 56 months, and was released. Her husband served 80 months. On supervised release, they owed a rather paltry $18,000 in restitution.

When Cindy started out on supervised release, she had no problems. But after a year, her husband was released. Cindy committed the unpardonable supervised release sins of moving and quitting her McDonald’s gig without telling her PO, of not showing up for a urine sample, and of no longer making her monthly restitution payments.

Although Cindy’s probation officer did not establish she had had any contact with her husband since his release, the government decided that he was the problem, and the district court agreed. “Ms. Hobbs was doing very well on supervision when she was living independently and Mr. Hobbs was still incarcerated,” the judge held. “And then, this contact occurs with her spouse, and those positive steps forward cease and, in fact, she absconds from supervision. That time line seems to the court to be instructive.” The court gave her 30 days in jail, reimposed her supervised release for another 3½ years, and ordered her to have no contact with her husband for the remainder of the supervised release term.

Two days ago, the 8th Circuit reversed the no-contact order. To be sure, a sentencing judge is afforded wide discretion when imposing terms of supervised release, the Court held, but special supervised-release conditions “must reasonably relate to the nature and circumstances of the offense, the defendant’s history and characteristics, deterring criminal conduct, protecting the public, and promoting the defendant’s correctional needs.”

The problem with the district court’s draconian no-contact order is that marriage is one of those constitutional things: the right to a marital relationship is a substantive due process right under the 14th Amendment ever since Loving v. Virginia. The Court of Appeals said “we are particularly reluctant to uphold sweeping restrictions on important constitutional rights.”

The Court of Appeals acknowledged that Cindy and her hubby had been “criminals in concert.” But that did not justify the “sweeping condition” imposed here. The Circuit observed that “nothing in the record shows that Hobbs’s husband influenced her to defy her release conditions… The timeline-based decision was pure speculation or assumption.”

The 8th said the “evidence did not justify effectively divorcing Hobbs from her husband during supervision to achieve any valid sentencing purpose… The state is inserting itself into Hobbs’s marital relationship in an overly broad way, and the condition thus involves a greater deprivation of liberty than is reasonably necessary.”

Because the district court’s condition was overbroad, the Court struck it down without reaching the constitutionality question, but any reader of the decision will conclude that the appellate panel believed it to be a due process violation.

United States v. Hobbs, Case No. 16-1956 (8th Circuit, December 14, 2016)

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SUPREME COURT GRANTS CERT TO BRADY, INEFFECTIVE ASSISTANCE CASES

It’s been a week for criminal law at the Supreme Court, a forum that typically devotes no more than about 20 percent of its time to criminal law questions.

On Monday, the Court granted certiorari – that is, agreed to hear – to Honeycutt v. United States, a case that asks whether 21 U.S.C. 853(a)(1) requires that forfeitures – which are different than restitution – be assessed jointly and severally among all of the coconspirators in a drug scheme. liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. In the case, Terry Honeycutt worked as a salaried employee at a hardware store owned by his brother, Tony. The two brothers were charged with drug crimes for the store’s sale of an iodine-based water disinfectant which can also be used to make methamphetamines. Tony forfeited $200,000 to account for the proceeds of the illegal sales. Terry went to trial and was convicted, the government argued that he should have to forfeit the rest of the proceeds, approximately $70,000.

Terry said he shouldn’t have to forfeit the remaining proceeds because he was just a worker bee, and never received them. The district court agreed, but the U.S. Court of Appeals for the 6th Circuit reversed, holding that Terry could be held independently liable for the meth precursor sales proceeds even if he never got any of the money.

Observers are hoping that the case may help put the brakes on what some see as a runaway and muddled forfeiture culture.

Yesterday, the Supreme Court added two more criminal issues to the docket, although one of the two issues has two separate cases consolidated for review. Both cases address prosecutors’ Brady v. Maryland obligations to turn over to the defense any material evidence that tends to be exculpatory for the defendant.

In Turner v. United States, several defendants were convicted in a murder years ago based in large part on eyewitness testimony. However, the prosecution did not turn over evidence pointing to several alternative suspects, including one who committed almost an identical murder after the trial ended. Lower courts turned down their post-conviction claims. The case focuses on whether the prosecution discharged its Brady obligations, and – in the consolidated case, Overton v. United States – whether the fact that the other suspect committed an identical crime after the trial that suddenly made the prosecutor’s failure to disclose information about him very material – had any bearing on whether a Brady violation occurred. In other words, is Brady materiality measured at the time of trial, or is hindsight required as well?

Curiously, the Supreme Court granted certiorari on the very general question of whether the conviction should be set aside for noncompliance with Brady. A decision in these cases could be sweeping, or it could be so case-specific as to provide little general guidance on Brady.

Finally, in Lee v. United States, the justices return to a topic familiar to Padilla v. Kentucky fans: the case of a non-citizen who gets into trouble with the law and then receives poor legal advice that jeopardizes his or her right to stay in the United States. Jae Lee is a South Korean immigrant who moved to the U.S. 34 years ago and became a successful restauranteur. But in 2009, he was charged with possession of MDMA (known as “ecstasy”) with intent to distribute. The Feds had Lee pretty much dead to rights, so his lawyer advised him to plead guilty and get a shorter sentence for acceptance of responsibility under USSG Sec. 3E1.1. The lawyer assured Lee the conviction wouldn’t hurt his resident status in the U.S., but of course it did, resulting Lee’s permanent and mandatory deportation.

Lee filed a 2255 motion, seeking to vacate his conviction on the grounds he had been denied his 6th Amendment right to effective assistance from counsel. The lower courts ruled that Lee could not that he was prejudiced by his lawyer’s bad advice, because he would have been convicted and deported anyway. Time was, the only issue on bad advice over a guilty plea was whether the defendant would have been likely to go to trial but for the bad advice, a standard set by Hill v. Lockhart in 1985. Padilla put some gloss on that by holding that it was the defendant’s job to “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”

Now, the Supreme Court will consider whether bad advice on a guilty plea may be harmless, even if the defendant would have chosen to go to trial anyway, because if he had decided on a trial, he would have lost.

The decision could have substantial implications for thousands of 2255 motions, well beyond the confines of immigration consequences.

The cases on which review were granted will likely be argued in late winter or early spring.

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SANDBAGGED

About 10 years ago, Jakeffe Holt was convicted of being a felon-in-possession of a firearm under 18 U.S.C. 922(g)(1). That crime carries a maximum sentence of 10 years, unless the defendant is deemed an armed career criminal under 18 U.S.C. 924(e), which applies to people with three prior violent felonies or serious drug offenses. Then, the punishment is 15 years to life.

Jakeffe got a 200-month sentence. But after Johnson v. United States held in 2015 that the residual clause in Sec. 924(e)(2)(B)(ii) was unconstitutionally vague. Jakeffe filed a collateral attack on his sentence under 28 U.S.C. 2255. The district court had counted a burglary conviction among the three predicate acts. Jakeffe argued that this was a mistake, but the district court disagreed, and upheld his sentence.

While Jakeffe’s appeal was pending, the 7th Circuit ruled that the version of the Illinois burglary statute under which he had been convicted was not a “violent felony” because it does not satisfy the
definition of “burglary” used in Mathis v. United States. All of a sudden, Jakeffe was clearly not an armed career criminal, and he had served more time that the maximum to which he could have been sentenced.

Easy, right? Just send that man home. But, no, the procedure is anything but easy. The 7th Circuit ruled yesterday that because Jakeffe had already filed his one 2255 motion, he’s out of luck. Under the law, a second 2255 is allowed only if the court of appeals certifies that it rests on newly discovered evidence (which Jakeffe’s did not) or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. 2255(h)(2).

While Johnson was a new rule of constitutional law made retroactive, Jakeffe’s new argument rests on Mathis, which is not. Instead, Mathis just interprets the statutory word “burglary” and “does not depend on or announce any novel principle of constitutional law.” By knocking out the residual clause, Johnson opened the door to arguments based on the limits of the elements clause, the Court said, but it did not declare it unconstitutional.

The problem, the Court said, was that Jakeffe was treating the ACCA as having only two clauses – elements and residual – when it really had three. That third includes as violent crimes “burglary, arson, or extortion [or] involves use of explosives…”

Zakeffe’s burglary conviction was classified as a violent felony under the burglary clause. Nothing in Johnson affects the proper treatment of burglary convictions. So Zakeffe’s second collateral attack cannot rest on Johnson.

If the court of appeals denies a request to file a second or successive application, no one may seek reconsideration or file for certiorari in the Supreme Court. Thus, the Circuit said, it “cannot treat the prosecutor’s supplemental brief as implying a request that we rehear, and rescind, the certificate authorizing a second collateral attack.”

Here, the district court found that Jakeffe’s 2255 relied on the meaning of “burglary” rather than the meaning of the Constitution, and she denied the 2255. The judge acted before the Supreme Court released Mathis, so she did not appreciate that Jakeffe’s burglary conviction had been misclassified when he was sentenced. She did, however, understand that his argument was statutory rather than resting on Johnson or any other retroactive rule of constitutional law.

So Jakeffe, who is undoubtedly innocent of an ACCA enhanced sentence, must do an extra 80 months regardless, because procedure demands it. The 7th did note that whether Jakeffe “might be entitled to relief under 28 U.S.C. 2241, should he pursue that route in the district where he is confined… is a question we need not consider.”

Holt v. United States, Case No. 16-1793 (7th Cir., Dec. 13, 2016)

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INTRODUCING “MISS CARRIAGE”

The numbers are compelling and well known. Last year, 97.1 percent of all federal criminal cases were resolved by guilty pleas. And those guilty pleas were overwhelmingly entered only after the government and defendant signed a written plea agreement.

There is nothing inherently wrong with resolving cases through guilty pleas — it reduces the government’s burden to prepare and conduct a trial, reduces the cost of defense for the defendant and court (because most defendants have court-appointed attorneys), lessens the imposition on witnesses, and saves courtroom resources. But in the federal plea bargaining system, prosecutors often strong-arm defendants by offering them dramatically shorter prison terms if they plead guilty, and threatening them – if they go to trial ¬– with sentences that retired Judge John Gleeson of the Eastern District of New York once described as “so excessively severe, they take your breath away.”

Plea bargaining means higher sentences for defendants who go to trial. In 2012, Human Rights Watch reported, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months).

Most plea agreements contain appeal waivers, promises by the defendant not to appeal except in limited circumstances. It’s one thing to get the defendant to waive the right to appeal decisions and conduct that have already occurred: at least in that case, the defendant can fairly be charged with knowing what has already gone on. But waivers also waive the right to challenge the sentence as long as it falls within the broad range set out in statute. You had a great argument against a 2-level enhancement, but your lawyer left her notes at home? Tough luck to you, fella.

There is a safety valve. Generally, despite the fact the defendant signed an appeal waiver, an appellate court will consider a sentencing issue on appeal to prevent a “miscarriage of justice.” And what is that? It’s sort of like Justice Potter Stewart’s famous concurrence in Jacobellis v. United States : “I know it when I see it…”

There’s some irony to recalling Justice Stewart’s pithy non-definition – which dealt with the definition of pornography – because that’s what today’s case is about. Bill Berríos pled to a child porn production count pursuant to a signed plea agreement, in which (among other things) he waived his right to appeal if his sentence was within the statutory range. When his sentence did not meet his liking, Bill appealed in spite of the waiver.

Yesterday, the 1st Circuit remanded Bill’s sentence on only one of four ground he claimed. Although it disposed of three arguments so summarily that it didn’t even to describe what Bill claimed, the Court stalled on a special conditions of supervised release that required Bill to undergo a special test that measured response of certain of his private parts to his seeing certain images (we’ll refer to the test by its acronym, PPG).

The district court imposed the PPG requirement on Bill without any explanation. On appeal, the government conceded that PPG – a controversial technique – lacked any utility. Noting that a district court must “provide a substantial justification before making submission to PPG testing part of a condition of supervised release” – and being swayed by the government’s refusal to defend the condition – the 1st Circuit decided that whatever “a miscarriage of justice” was, this clearly fell to far side of that line. The Court said “potentially subjecting the defendant to PPG testing when the government expressly disavows the utility of this particular procedure about which we have expressed reservations, especially when the record lacks any explanation of the applicability of PPG testing to this defendant, constitutes a miscarriage of justice as well as plain error.”

United States v. Berríos-Cruz, Case No.14-1058 (1st Cir., Dec. 12, 2016)

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SENTENCING COMMISSION PROPOSES FIRST-OFFENDER BREAKS, PASSES ON CAREER OFFENDER ENHANCEMENT

For those who hoped the Sentencing Commission would propose to eliminate drug trafficking as offenses that support application of “career offender” status, last Friday’s meeting was a disappointment.

A December USSC meeting to consider proposals for the next year’s rounds of amendments is highly irregular, and the tin-hat people were buzzing: the Commission had an earth-shaking proposal, everyone’s running scared because of President Trump and a completely Republican congress, the earth is about to end… In the end, it turned out that the early meeting was most likely held because the 6-year tenure of USSC Chairwoman Patti B. Saris (whose day job is Chief Judge of the U.S. District Court for the District of Massachusetts) ends on December 31.

Last summer, the Commission said its policy priorities for the coming year would include a proposal to study whether to drug trafficking convictions as predicates for the Guidelines Chapter 4 “career offender” enhancement. Last summer, the Commission delivered a report to Congress that found that defendants with multiple drug convictions were much different, and considerably less tough to manage, than were those with two or more crimes of violence as predicates for career offender status. The Report suggested that drug offense perhaps should not count against defendants for career offender status.

Last week’s meeting, the Commission mentioned not a word about the career offender status, suggesting that nothing will happen to change “career offender” in 2017 unless the Supreme Court does it in Beckles v. United States.

Instead of addressing “career offender,” the Commission voted to put out for public comment proposals to reduce sentencing ranges for first-time offenders, defined as those without any criminal history points whatsoever. The Commission wants to encourage federal courts to impose more alternative sentences that do not require incarceration.

Also, the Commission proposed changing how criminal history scores are calculated to eliminate the counting of juvenile convictions, and to propose a downward departure where a defendant was convicted as an adult for an offense committed before 18 years old. Additionally, the Commission proposed that parole and supervised release revocation sentences not be counted as extending prior periods of conviction, an important issue for a lot of defendants who have very old convictions that – because of a late revocation – suddenly fall within the 15-year look-back period.

The Commission proposed a two-year study on MDMA (“ecstasy”) and synthetic drugs, and said it would update its study – now before Congress – to reduce mandatory minimum sentences.

There was no discussion whatsoever of retroactivity for existing Guidelines or for the proposals set out for public comment. This is not usual: in the rare cases when a Guidelines change becomes retroactive, the proposal to do so comes only after the Guideline change has become effective.

The composition of the Commission is about to change dramatically. Last Friday’s meeting was the final one for three of the seven members, Chief Judge Saris, Judge Charles R. Breyer and Dabney L. Friedrich. By statute, commissioners are appointed to 6-year terms by the President and confirmed by the Senate. At least three must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum, and thus will be unable to act until new members are appointed and confirmed.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (Dec. 9, 2016)

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A ROUGH JOB – BUT JUSTICE WAS DONE

Inmates who have to carry on their post-conviction legal battles without assistance of counsel – and that would include just about all of them – sooner or later learn the hard way that neither court clerks nor the US Attorney’s Office can be trusted to send them filings or court orders in a timely manner.

When we first began working with inmates, we found the complaint of non-service hard to believe. Well, not all of us – one of our number once practiced law in an Ohio city where it was ritual to go to the clerk’s office every Friday to check the dockets of cases in which he was involved, just to see what the other side had filed without serving him. But for those of us just out of law school, the idea of lawyers sand-bagging lawyers – or clerks failing to mail court orders of sheer negligence – did not comport with our rose-colored view of the practice of law.

But, alas, we’re older and more cynical, and not a month passes that we don’t find that some USAO or some clerk has failed to mail an inmate an opposition pleading or court order. Today’s case is a cautionary tale about the need to use an electronic version of our colleague’s Fridays-at-the-Clerks approach, as well as how a court of appeals – sympathetic to the limitations on pro se litigation – can try to make it right.

Larry Gooch (known on the street as “Goo”) is doing time for a litany of crimes, including four felony murders. In a motion under 28 U.S.C. § 2255, Goo complained his lawyer was ineffective at trial. The district court turned him down.

A few weeks later, Goo, acting pro se, submitted a filing to the District Court, entitled “Request for Extension of Time,” filed a pleading asking for an “extension of time of 60-days to file a Certificate of Appealability.” His request said that, “[b]ecause Mr. Gooch is unlearned in the law, he will require more time to properly research and prepare his Certificate of Appealability.” After receiving Goo’s filing, the district court, which found his ineffectiveness question to be a close one, granted Goo a certificate of appealability (COA) under 28 USC 2253(c) to test the argument on appeal.

The district judge construed Goo’s “Request for Extension of Time” as a motion for extension of time to file a notice of appeal under Federal Rule of Appellate Procedure (FRAP) 4(a)(5)(A)(i), and granted “an extension to file within sixty days of this Certificate.”

This is where Mr. Murphy made his appearance. In the midst of what the district court later called “downsizing, job sharing and sequestration,” the clerk’s office never sent Goo a copy of the apparently failed to mail Gooch a copy of the COA and order. Ten months later, Goo – puzzled that he had heard nothing – sent the court a letter inquiring about the status of his earlier request. The district court construed this letter as a motion for extension of time to file a notice of appeal under FRAP 4(a)(5) or, alternatively, as a motion to reopen the time to appeal under FRAP 4(a)(6), but denied it either way.

Goo then filed a motion with the U.S. Court of Appeals for the D.C. Circuit, asking leave to appeal. On Wednesday, the Court granted Goo’s motion.

The Court noted that FRAP 3 requires the filing of a notice of appeal is necessary before a court of appeals has jurisdiction to hear the appeal. There was no question that the filings 10 months after the fact were not timely under FRAP 4. In fact, the Circuit said, “Gooch made only one filing in the 60 days following the District Court’s denial of his § 2255 motion: his ‘Request for Extension of Time’.”

The good news, the Court said, is that while Goo’s timely filed “Request” “was not styled as a notice of appeal, it nonetheless may satisfy Rule 3 if it is the ‘functional equivalent’ of what the rule requires.” In order to do so, the document had to contain all of what FRAP 3 required be in a notice: (1) the party who was appealing, (2) the judgment or order being appealed, and (3) the court to which the appeal was taken.

The Circuit parsed Goo’s “Request for Extension of Time” until it found what it wanted to find. First, because the “Request for Extension of Time” identified Goo in the caption, the Court said, it identified the party taking the appeal. Second, Goo’s filing designated the judgment or order being appealed, because it explicitly referenced the district court’s denial of his 2255 motion. The Court’s bob-and-weave was especially impressive on the third requirement, holding that while “the ‘Request for Extension of Time’ does not ‘name the court to which the appeal is taken,”’ – which is the third and final requirement – failures to meet this requirement are excused where there is only one court to which the appeal can be taken, which is the case here.”

Goo never explicitly said he intended to appeal – the final requirement – but the Court of Appeals breezily excused that, too. The Court said

Although the document refers to Gooch preparing and filing “his Certificate of Appealability,” it appears to mean an application for a certificate of appealability because the certificate itself is prepared and issued by the court. See RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” (emphasis added)). In his filing, Gooch notes that the District Court “did not hold that it would not issue a Certificate of Appealability,” and requests additional time “within which to file his Certificate of Appealability” because “he will require more time to properly research and prepare his Certificate of Appealability.”

These statements clearly evince Gooch’s intent to obtain a certificate of appealability. As the only purpose of such a certificate is to pursue an appeal, Gooch’s intent to pursue an appeal can reasonably be inferred from his intent to file an application for the certificate.

It is correct, as inmates love to cite in their pleadings (as if the judges don’t already know it), that the Supreme Court requires courts to “liberally construe” documents filed pro se. Here, the D.C. Circuit found that “an intent to appeal can be reasonably inferred from the request” for extension of time, and it was loathe to dismiss the 2255 on procedural grounds rather than on the merits.

The Court concluded that “Gooch’s ‘Request for Extension of Time,’ which was filed within the time period specified by Rule 4, constitutes the functional equivalent of a notice of appeal… [and] we have jurisdiction under 28 USC Sec. 2253(a) to consider the merits of his appeal.

To be sure, the Court of Appeals virtually held that a scrawl on the back of a cocktail napkin could serve as a functional stand-in for a FRAP 3 notice of appeal. But few can complain that this time, in its contortions, the D.C. Circuit did not do justice here.

United States v. Gooch, Case No. 15-3030 (D.C. Cir., Dec. 6, 2016)

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PANIC SETS IN

There are only about as many days left in the Obama Administration as Jesus spent in the wilderness, and just as the New Testament reports that Jesus was tempted during his sojourn there, some suspect – and others pray – that the President will be tempted to announce one final, magnificent clemency gesture for the history books.

It’s been over two weeks since the last batch of commutations – 79 inmates (and two turkey pardons) just before Thanksgiving – and hopes that additional lists would be rolling out of the White House doors on an almost-daily basis are dwindling as the final days of Obama slip away.

Meanwhile, the Dept. of Justice quietly released a list last week of another 600 inmate clemency petitions that were denied by Obama. The list of denials since October 2010 is over 14,000 names long. For those keeping score, this means that the chance of a commutation petition being granted is about 6.6%, which are about slot-machine odds.

We calculate that there are still over 10,000 commutation petitions on file, and about 1,000 grants to go if the President intends to meet his goal of 2,000 commutations granted.

Lately, a lot of the talk has turned to pardons, as those with political agendas talk up their favorites: the Amazon.com of espionage/American hero (choose your sobriquet) Edward Snowden; transgender traitor/Wikileaks champion Army private Chelsea (nee Bradley) Manning; wandering Army Sgt. Bowe Bergdahl; or email warrior Hillary Clinton. Others are calling for the pardon of a kosher foods company executive convicted of bank fraud. And last week, the sons of convicted spy Ethel Rosenberg returned to the White House, more than 50 years after pleading unsuccessfully to spare her life, to deliver a last-ditch appeal to Obama to exonerate her amid new evidence. Rumors even floated that the President had granted clemency en masse to the hapless Cleveland Browns.

That’s not to mention the thousands of other clemency petitions on file from federal inmates who were not convicted of drug crimes. No one’s talking about those, and the likelihood that Obama will grant any of those only slightly exceeds the chance that the earth will plummet into the sun before you read this.

But the drumbeats for a sweeping commutation of drug sentences are insistent… and getting louder. Last week, the Washington Post tried to humanize Obama’s commutation decisions, reporting on a clemency application that was denied:

Ferrell Scott was sentenced to life in prison for possession and conspiracy to distribute marijuana, a drug that’s now legal in many states and turning a handsome profit for the (primarily white) pot industry. Scott, like many nonviolent drug offenders serving long sentences, is black. Without any chance at parole, despite an exemplary behavior record, he appealed to President Obama for clemency. He found out that his bid for clemency had been denied when he got an email about “bad news” from a friend. Thinking something bad had happened to his 93-year-old mother, he called home. His daughter answered, crying, and told him the news.

“She cried like a baby and she was telling me that she didn’t know what she was supposed to do now. Couldn’t understand it,” Scott tells The Watch in a phone interview.

The Post’s article on Ferrell’s denial came two days after it wrote about Lori Claire Kavitz, who’s serving 24 years for a meth conspiracy, and is supported in her clemency bid by her sentencing judge, among others.

Yesterday, Ohio State University law professor Doug Berman noted in his sentencing blog that he had been “aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office. This January 20, 2009 post was titled ‘Is it too early to start demanding President Obama use his clemency power?’ and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title ‘Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders.’ I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.”

Prof. Berman was commenting on a Tuesday editorial in The New York Times that called for Obama to throw a ‘Hail Mary’ while he still can. The Times complained that “for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.” When Obama finally got his 2014 clemency initiative underway, the Times said, “that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016.”

While Obama “has now shortened or ended the sentences of more than 1,000 prisoners,” the Times complained, “there are thousands more people deserving of release, but their prospects under the next administration don’t look good.” The Times argued for a single commutation blast that addressed every sentence imposed prior to 2010 that would have been less had the Fair Sentencing Act of 2010 been on the books. That law, which reduced the 100:1 sentencing disparity between powder cocaine and crack, did much to equalize sentences imposed after its passage, but the Act was not retroactive. The Times suggested:

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades.

An open letter to the President last week signed by dozens of law professors and sentencing reform advocates – as well as a handful of former judges and prosecutors, made the same FSA suggestion, and went even further:

The U.S. Sentencing Commission staff could identify these individuals and DOJ could use prison placement (to a camp – the lowest level of federal incarceration – or to a low or medium facility) as a surrogate for how an individual has behaved in prison. There is bipartisan agreement that pre-Fair Sentencing Act crack sentences are unjust and have disproportionately affected people of color, but there is no mechanism for addressing that injustice outside of clemency.

People who have received sentences in narcotic cases involving other drugs besides crack who through good behavior worked their way down to placement in a camp or low or medium facility could receive similar consideration. You could also give special priority to veterans and older individuals and could consider granting relief to individuals who have been labeled as career offenders who have only narcotics as a triggering offense, a group that the Sentencing Commission recently urged Congress to treat differently because of their lower rates of recidivism and less culpable conduct. Similarly, those individuals who have received double mandatory minimum sentences where the individual has only drug convictions are calling out for relief.

The open letter contended that “the Constitution envisions precisely this kind of corrective against undue severity in the law,” and told Obama what he undoubtedly already knows, that “with a stroke of your pen, you could change the lives of thousands of individuals and their families and write a legacy that will stand throughout history.”

So far, no one’s making money betting on how this Administration will exercise the pardon and clemency power. With 42 days left, the odds are nearly the same that he will grant clemency to only a trickle more and that he’ll unlock the prison doors. About the only sure bet is the chances for clemency will equal a snowball’s odds in hell after January 20th.

Washington Post, He got life without parole for pot. And he was just denied clemency (December 2, 2016)

The New York Times, President Obama’s Last Chance to Show Mercy (December 6, 2016)

Berman, Sentencing Law and Policy, At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push (Dec. 7, 2016)

Open Letter to President Obama (November 29, 2016)

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HE’S B-A-A-CK

As child porn cases go, this one is midrange seamy. Using some rather sophisticated investigative techniques, one of the federal alphabet agencies tracked a series of anonymous Internet kiddie porn right to the victim’s home. The shocked mom identified your typical sketchy Uncle Ernie-type who had babysat the child, a guy named Nathan Brown. The cops searched his mobile home and found computers with hundreds of thousands of child porn photos and videos, including the series of the girl found on the web.

Nathan pled guilty to three counts of production of child porn, one for each of three kids he had photographed, and argued for the mandatory minimum sentence. The Guidelines, however, called for more. When all of the many enhancements peculiar to child pornography were piled on, Nathan – who had no prior record – had run up an astounding offense level of 54 (reduced to a final score of 51 because he pled guilty). Any score of 43 or over, of course, is life in prison without parole. Because the three offenses of conviction each had a 20-year maximum, the sentencing judge gave Nathan 20 years on each count, consecutive (or “running wild,” as defendants call it) for a sentence of 720 months (60 years).

Yesterday, the 60-year sentence divided a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit for a second time. Last June, the panel sent the case back to the trial court for possible resentencing. The panel said that the trial court may have had an “erroneous understanding” of the facts — including that the judge said Nathan had destroyed the lives of three children, when, in fact, one of the children was asleep when she was videotaped and was thus unaware.

Upon calm reflection, the district judge hammered Nathan with the same 60 years, and the case came back to the 2nd Circuit. Yesterday, two judges on the panel upheld the sentence, with Judge Rosemary Pooler dissenting and Judge Robert Sack concurring.

“Given the seriousness of the crimes,” the Court ruled, 60 years “is within the realm of punishments that this court has upheld as reasonable for production of child pornography.” The decision cited the extraordinary quantity of other child pornography Nathan possessed, the psychological harm he caused to two victims, and what the district court said was Nathan’s lack of true remorse.

Both a concurrence and a dissenting opinion issued in the case merit study. Both raise legitimate questions about the draconian Guidelines sentencing regime governing child pornography offenses (in Nathan’s case, six different sentencing enhancements “catapulted” his Guideline range to 20 levels above kidnapping). As well, the two opinions – while of trifling legal consequence – contain some fascinating observations about imposition of sentences.

Judge Pooler observed that Nathan “Brown could have murdered his victims, and he would not have received a harsher sentence.” She argued that the district court “erred in giving Brown the same sentence for his conduct with respect to the third victim as for his conduct for the other two victims, even though the other two had suffered severe psychological damage, and thus had been harmed far more seriously.” This meant, roughly put, that a third of Nathan’s sentence was based on his having “destroyed” the life of a victim “despite an undisputed lack of evidence that the victim’s life had been affected at all.”

The district judge, engaging in what is all too normal hyperbole, told Nathan that he was “the worst kind of dangerous sex offender.” Judge Pooler said that, while the offenses are serious, the statement was untrue. “Brown did not forcibly rape his victims or subject them to physical harm,” she wrote. “He took pictures of the genitalia of three girls, usually while they were sleeping, by moving their underwear to the side. His offense did not involve penetration, extreme violence, abduction or trafficking.”

Judge Sack said in his concurrence that he was troubled by the sentence imposed by the district court:

The offenses for which the defendant was sentenced after pleading guilty to them involved a deeply disturbing combination of child molestation and the making, watching, and circulation of obscene child pornography. The details of the charged conduct challenge the adequacy of English-language adjectives to characterize them…

To borrow a phrase from death-penalty cases and twist it, child pornography is different. Focusing on subjects that are associated with our most powerful taboos, these cases evoke uniquely strong, if differing, emotional, moral, and cultural reactions from judges, necessarily based on the differing beliefs, values, sensitivities, and life experiences of those judges…

When we go beyond what is necessary to resolve this sort of case… we risk the appearance of explicitly or implicitly voicing our moral indignation rather than exercising our legal judgment, which is of course our only charge.

Judge Sack further observed that “sentencing judges must apply the law to the facts (including the fact of how others have emotionally responded to the crime), not vindicate their own anger and agitation or appear to be doing so… Similarly, part of our job as reviewing judges is to avoid losing our own objectivity or focus because of our own disgust. Because of the reaction such a crime evokes in us and in the trial court, we must be particularly assiduous in assuring objectivity and propriety in assessing the sentence imposed.”

United States v. Brown, Case No. 12‐cr‐145 (2nd Cir., Dec. 6, 2016)