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Monday Morning Cleanup – Update for June 19, 2017

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

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ROUGH WEEK FOR THE BOP

badpr170619If you’re handling public relations for the BOP, last week would have been a good time to be out of the office. First, the media reported on a newly-filed class action suit in the Middle District of Pennsylvania alleging that mental health services at USP Lewisburg are so meager that 5-minute therapy sessions take place in the shower and suicidal inmates are treated by being given crossword puzzles.

The suit focuses on the Lewisburg Special Management Unit, where most inmates are locked down in solitary, and often are doubled up in the cells, which psychologists allege is even more harmful than single-celled solitary confinement. Inmates who refuse “double-celling” have been put into metal restraints until they complied.

Lewisburg has an assault rate six times higher than the BOP average.

The inmate class in the suit is represented by the Pennsylvania Institutional Law Project, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and multinational law firm Latham & Watkins.

If that were not enough, a Huffington Post writer blasted the BOP’s Communications Management Units in an article published last Tuesday, highlighting a case still pending in the District of Columbia District Court.

GAG170619The author, who did a 25-year bit for drug trafficking and was sent to the CMU at one point, alleges the BOP uses CMUs – intended to provide an environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community – are being used in violation of the 1st Amendment to stifle inmate criticism of the BOP. He says the “Little Gitmos” ― a term the press coined for CMUs ― were opened in 2006, drawing a torrent of criticism. Called the “black ops unit” or “where they keep the terrorists” by prisoners, the BOP’s program statement says the purpose of the CMUs is “to ensure safety and to protect the public.”

The 2014 lawsuit argues that prisoners don’t know why they’re transferred to these units or how they can get transferred back out. With no access to records on who’s housed in them or the reasoning behind these detainments, an inmate confined in a CMU is at the BOP’s mercy. Restricted to one six-page letter per week, three 15-minute phone calls and four 1-hour visits a month, CMU residents have little or no contact from the outside world.

“They’re really there as a punishment to keep them quiet and that’s extremely concerning,” said Amy Fettig, deputy director of the ACLU’s National Prison Project. The purpose of the CMUs, she says, have been twisted to censor anyone who disagrees with prison authorities.

The lawsuit was thrown out by the district court on summary judgment, but reinstated by the D.C. Circuit in 2016. Cross motions for summary judgment are currently pending in D.C. District Court.

The Marshall Project, Where Crossword Puzzles Count as Counseling (June 12, 2017)

Huffington Post, How The BOP Uses CMUs To Silence Prison Writers (June 13, 2017)

Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016).

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WHILE WASHINGTON IS FOCUSED ON TRUMP-RUSSIA INVESTIGATION, LITTLE IS HAPPENING ON SENTENCING REFORM

We reported a month ago that a bipartisan sentencing bill, the Justice Safety Valve Act, was introduced in the Senate (S. 1127) and the House of Representatives (H.R. 2435). The Senate bill was sent to the Senate Judiciary Committee the same day it was filed, where it languishes. Last week, the House measure was passed by the House Judiciary Committee to a subcommittee, where the real work on the bill will be done.

Sentencing reform supporters were encouraged last March when Jared Kushner, President Trump’s son-in-law and close advisor, met to talk reform with Senators Grassley (R-Iowa), Durbin (D-Illinois), and Lee (R-Utah). Observers predicted Kushner was sympathetic to reform because his dad did a stint in federal prison, but Senate aides say Kushner’s visit was more a listening session than an offer of support. Still, Sen. Grassley enthusiastically said he would know the administration’s position on reform legislation “in three weeks.”

Over two months later, no one has yet heard from the White House, and Kushner has a pretty full plate (such as peace in the Middle East and a subject of the Russia-Trump investigation). An Atlantic magazine report last week said of Kushner that “it seems unlikely he’ll have much bandwidth in the coming months to weigh in on Congress’s mundane domestic squabbles. Which is why advocates of criminal-justice reform might want to take a moment to wave adios to any prospect of action in the foreseeable future…”

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Meanwhile, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post last Saturday to defend his new “get-tough-on-crime” policies. He led with the claim that “drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.”

Sessions sees all federal drug defendants as kingpins. He wrote, “Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members… The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels. Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015.”

The Atlantic, Criminal-Justice Reformers Pin Their Hopes on Jared Kushner (June 11, 2017)

Washington Post, Jeff Sessions: Being soft on sentencing means more violent crime. It’s time to get tough again (June 17, 2017)

– Thomas L. Root

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Once You Say It, You Own It – Update for June 15, 2017

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

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MEAN WHAT YOU SAY

changeofplea170616Anyone spectator who has ever endured a change-of-plea hearing in Federal court has some sense of what the prophet Isaiah meant when he wrote of inhabiting eternity. The hearing drones on and on, with discussions about the defendant’s mental state, understanding of his or her rights, the nature of the rights being given up by the guilty plea, the elements of the charges, maximum and minimum sentences, fines and restitution, effect of the Guidelines, and on and on.

The whole back-and-forth between the defendant and the judge – known as the plea colloquy – is scripted by F.R.Crim.P. 11, which covers in detail what has to happen during the guilty plea. Such hearings go on over 70,000 times a year in federal court, and virtually every one of them is mind-numbing.

Before accepting a plea of guilty, the court must determine that the plea is voluntary and did not result from force, threats, or promises other than those in the plea agreement. One question that is almost always asked is whether the defendant is fully satisfied with his or her legal counsel, the representation, and advice received. Another is whether anyone had  threatened or attempted in any way to force the defendant to plead guilty.

ecoli170616At first blush, the questions seem silly. If the defendant is being forced to plead guilty, he or she is hardly going to screw the pooch by telling the judge that. Even worse is the question about satisfaction with counsel. The defendant has not even had his or her guilty plea accepted, let alone get sentenced. It’s as though Yelp required you to post your restaurant review before your appetizer arrives. Sure, the maître d’ was polite, and the tablecloths clean and starched. But you may well feel much different at 3 o’clock tomorrow morning, when you discover that e.coli. had been living in the house salad.

meanit170616As meaningless as the answers may be, they nevertheless because granite-hard truth if the defendant ever suffers buyer’s remorse. Consider Kevin Reed. Halfway through his federal fraud trial, he decided to plead guilty. During the plea colloquy, the district judge asked Kevin if he was “fully satisfied with the counsel, representation, and advice” he had been given. Kevin replied, “Yes.  He’s  excellent.”  He  also  confirmed  that  no  one  had  threatened him or attempted “in any way” to force him to plead, and that he was pleading guilty of his “own free will” because he was actually guilty.

A few months later, as sentencing loomed, Kevin hired a new set of lawyers. They moved to withdraw the plea, arguing that Kevin’s trial attorney’s ineffective representation at trial left Kevin with no choice but to bail out, and thus coerced him to plead guilty. The district court denied the motion.

Last Tuesday, the 7th Circuit upheld the district court. The Circuit acknowledged that a defendant could withdraw a guilty plea, but such a motion is “particularly unlikely to have merit if it seeks to dispute the defendant’s sworn assurances to the court.”

That was exactly what Kevin was trying to do. He argued that his trial attorney ignored tens of thousands of documents and didn’t interview dozens of potential witnesses, but he did not identify any of the witnesses or documents or show how they would have bolstered his case. More importantly, the appellate panel tartly noted, Kevin kind of forgot to mention any of this in his plea colloquy, or to complain that he was answering “yes” to the court only because his attorney told him to.

trifles170616At the plea colloquy, Kevin said his lawyer was excellent and that his plea was voluntary. “Those sworn statements were not ‘trifles’,” the 7th said, that Kevin could simply “elect to disregard.” To be sure, a plea entered because counsel is unprepared for trial would be an involuntary plea, but the district court found Kevin’s claim of lawyer ineffectiveness “vague,” and the appellate court agreed.

The problem is that at the change-of-plea colloquy, a defendant – especially one unfamiliar with the criminal process – has no way to know whether his lawyer has provided good representation or not. Nevertheless, a defendant will be held to the words he or she speaks. Whether the defendant knows the correct answer or not, that answer is going to bind him or her. Say it like you mean it, because once you give the answer, you own it.

United States v. Reed, Case No. 16-3428 (7th Cir., June 13, 2017)

– Thomas L. RootLISAStatHeader2small

The Fine 6th Amendment Line Between Arguing the Law and Arguing the Facts – Update for June 14, 2017

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

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JURY INSTRUCTION VIOLATES 6TH AMENDMENT

Everyone who has ever watched a cop show knows that the Constitution guarantees an attorney to each accused. Actually, the 6th Amendment – from which the right is derived – guarantees a lot more than the presence of a mouthpiece.

The 6th Amendment guarantees the right to an attorney of the accused’s choice, the right to an attorney who is effective at what he’s or she’s doing, and – as we see today – the right to mount a defense.

sixth170614Dan Brown was a member of an online bulletin board known as Dark Moon, where members shared child porn. A jury convicted Dan of conspiracy to make, print, or publish “any notice or advertisement seeking or offering” child pornography in violation of 18 USC § 2251(d) and (e). Dan got 15 years.

Dan’s lawyer wanted to argue that because Dark Moon was a closed group which no one could access without a password, the postings were not the kinds of a “notice or advertisement” that the statute outlawed. He argued that the closed nature of the board was one factual consideration that the jury should be permitted to consider in determining “whether the government meets the proof beyond a reasonable doubt.”

The district court disagreed, concluding that the postings were advertisements, and told the jury as much in the instructions the judge read to the jury. The district court explained, “I just think clearly that when you have a site like the Dmoon bulletin board where you are making available, to anybody that wants to get into this particular bulletin board, the services that are being offered in that bulletin board in the manner as it has been demonstrated through the evidence in this case, that… to me… meets the definition of what would be ‘advertisement,’ ‘advertise,’ or ‘notice.’”

On Monday, the 9th Circuit reversed, and sent the case back for retrial. The appellate panel conceded that a district court may prevent a defendant from “arguing incorrect statements of law, something that is well within the court’s discretion.” But that’s not what happened here. Instead, “the district court effectively ruled that, as a matter of law, the closed nature of the Dark Moon bulletin board was irrelevant to the question of whether an ‘advertisement’ or a ‘notice’ had been shown, and thus could not properly be considered by the jury… Indeed, the trial judge’s remarks suggest that he foreclosed Brown’s argument in part because he concluded that the government had met its burden as to that element of the statute. Because that determination was the jury’s to make, we conclude that it was error for the district court to prevent Brown from arguing that the government failed to meet its burden.”

advocacy170614The 9th differentiated between sufficiency and what happened here.

The question… is not whether the evidence against Brown was sufficient to support a conviction. Were that the question before us, we would ask whether, ‘viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Instead, the question is whether the defense had a fair chance to argue the evidence in the first place. There is a wide gulf between saying that evidence is sufficient to convict, and saying that such evidence is always sufficient as a matter of law to convict.

The Court observed that if Dan’s lawyer had wanted to argue that Dan’s posts could not qualify as “advertisements” or “notice” because he had posted on a closed board, the argument would have been a misstatement of law, and the judge could have prevented it. But what Dan’s lawyer wanted to argue to the jury was that “in this particular case ‘the features of the board don’t meet the… common and contemporary definition of ‘notice’ and ‘advertisement’” because the board was closed, because it was password-protected, because the rules of the forum required that files be encrypted, and because it had relatively few participants. Arguing to the jury that the facts did not bring Dan’s conduct within the limits of the statute is, after all, what lawyers are supposed to do.

pound170614The Circuit concluded that “no matter how strong the case for the prosecution may appear to the presiding judge, Brown had the right to present a defense that was not precluded as a matter of law… By refusing to allow Brown to present his defense in closing argument based on the closed nature of the Dark Moon bulletin board, the district court violated Brown’s fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt.”

United States v. Brown, Case No. 15-30148 (9th Cir., June 12, 2017)

– Thomas L. Root

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

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

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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

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

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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

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

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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

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

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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

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

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

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SUPREME COURT DECIDES TWO FORFEITURE ISSUES, GRANTS CERT ON CELLPHONE DATA QUESTION
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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)

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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)
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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

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

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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

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

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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

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