We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
PROSECUTOR DISCIPLINE WITH A WET NOODLE
Just last week, I had someone tell me he was going to file a 2255 motion just as soon as he filed a bar complaint against those lyin’ prosecutors.
Good luck with that. A report last week illustrates the futility of expecting any favorable result from bar complaints against prosecutors.
A decade ago, the District of Columbia Court of Appeals ruled that the U.S. Attorney’s Office violated Brady v. Maryland by not disclosing exculpatory information to the defense during Carl Morton’s and Alonzo Vaughn’s convictions for aggravated assault and assault on a law enforcement officer. It has only taken 10 years for the same court to decide that the two prosecutors responsible should each get a year of probation plus a stern warning not to commit any further misconduct, or they would be suspended from practicing law for six months.
Both Mary Chris Dobbie and Reagan Taylor are still DOJ prosecutors. In 2021, the D.C. Board On Professional Responsibility unanimously recommended that each receive a six-month suspension from law practice. However, the Board “ratcheted down the sanction to probation based on ‘one overriding mitigating circumstance’,” according to a report last week in The Intercept. That circumstance was the “deficient conduct” of their supervisors, Jeffrey Ragsdale and John Roth.
Neither Ragsdale nor Roth was subject to any ethics charges or misconduct findings. Roth was later promoted to be inspector general for the Department of Homeland Security. And Ragsdale? He’s now in charge of the DOJ Office of Professional Responsibility, which oversees investigations into alleged prosecutorial misconduct.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE 10TH GIVETH, THE 10TH TAKETH AWAY
In the world of gun restrictions, all eyes are on the Supreme Court, which will decide United States v. Rahimi – and maybe the future of the 2nd Amendment – sometime between now and June. But litigation over 18 USC § 922(g), the laundry list of people who the government says should not have guns or ammo, in the lower courts continues unabated.
Out in the wild, wild west, the 10th Circuit last week handed down a pair of 18 USC § 922(g) decisions, giving defendants a mixed bag.
In one case, Colorado defendant Kenneth Devereaux was convicted of being a felon in possession of a gun (violation of 18 USC § 922(g)(1)). He received a 2-level enhancement in his Guidelines range because the district judge considered a prior conviction for assault under 18 USC § 113(a)(6) to be a crime of violence.
Last week, the 10th Circuit disagreed. A “§ 113(a)(6) assault can be committed recklessly,” the Circuit observed, but since the 2021 Supreme Court decision in Borden v. United States, “a reckless offense categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another.”
Section 113(a)(6) “sets forth a single indivisible assault offense, to which only the categorical… approach [applies],” the 10th ruled. “Because an assault resulting in serious bodily injury under § 113(a)(6) can be committed recklessly, after Borden it cannot qualify as a crime of violence…”
Things did not go so well for Jonathan Morales-Lopez. He and a buddy were caught stealing guns from a Utah gun store. When he was frisked, the police found a loaded Smith and Wesson he had previously stolen from the same store stuffed in his pants and a personal-use amount of meth in a plastic bag.
The State of Utah did its number on Jonathan for the theft, but the Feds picked up the gun case. He was charged as an unlawful drug user in possession of a gun under 18 USC § 922(g)(3). After he was convicted, Jon argued that § 922(g)(3) was unconstitutionally vague, violating his 5th Amendment rights. The district court agreed with Jon, and the government appealed.
“When the validity of a statute is drawn in question, and even if a serious doubt of constitutionality is raised,” the Circuit wrote, “it is a cardinal principle that courts]will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” To avoid the vagueness problem, the 10th said, courts have interpreted § 922(g)(3) to convict a defendant only if the Government “introduced sufficient evidence of a temporal nexus between the drug use and firearm possession.”
Here, the appeals court said, that wasn’t even a close call. Jon was carrying his personal meth stash in his pocket and told the police after his arrest that he couldn’t remember much because he was high on the controlled substance at the time. “The facts presented at trial, coupled with reasonable inferences drawn from those facts, could support the conclusion that Morales-Lopez was an “unlawful user” of methamphetamine,” the Circuit held, “one whose use was ‘regular and ongoing, while in possession of a stolen firearm.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
GAO EXCORIATES BOP FOR INEFFECTIVE AND POORLY MANAGED SPECIAL HOUSING UNITS
The Federal Bureau of Prisons says restrictive housing – that is, Special Housing Units (SHUs) – is not an effective deterrent for bad behavior and can even increase future misconduct. So guess who still keeps 12,000 of its “persons in custody” locked up 23 hours a day in SHUs around the country?
A Government Accountability Office report wondered that last week, complaining that “while the BOP was previously called out for the practice of SHU placement of prisoners, little has changed.” The GAO criticized the BOP for its “slow progress toward taking action on longstanding recommendations, partly because the Bureau hasn’t established roles or time frames for doing so.” In fact, how the BOP monitors and evaluates all of its programs is such a problem that the GAO added the agency to the GAO’s High-Risk List annual update issued last April. It’s unlikely to be dropped from the 2024 list, due out in two months.
A SHU is a “housing unit” in name only, a warren of individual cells – some of the barred like old-time jails but more modern ones with solid metal doors with a small port through which food can be passed. The SHU residents – sometimes two to a cell, sometimes only one, are locked down 23 hours a day according to policy and removed from the cells only when handcuffed. A “recreation area” is usually a larger cage, sometimes with a basketball hoop, where often only the sky is visible. Inmates get a shower three times a week. There are no TVs, often no radios, scant reading material, and absolutely nothing to do.
“The management of federal prisons, including the use of restrictive housing, requires immediate attention,” the GAO found. “This issue is so pressing that, in 2023, Addressing these issues will enhance the Bureau’s approach to improving and ultimately reducing its use of restrictive housing.”
The BOP’s problems with its management of SHUs are nothing new. A Dept of Justice study a year ago criticized the BOP’s failure to reduce the number of SHU inmates. In a year, nothing improved.
Writing in Forbes last week, Walter Pavlo said, “The primary purpose of SHU is for disciplinary reasons. Disciplinary segregation is a punitive housing status imposed as a sanction for violating a disciplinary rule… However, SHU has been used for those under investigation for a disciplinary violation, protective custody (fear of being assaulted by fellow prisoners), pending transfer to another institution, or to protect a prisoner at the end of their disciplinary confinement term to prevent them from being assaulted on returning to general population.”
During the pandemic, prisoners testing positive for COVID were often isolated in the SHU, a practice that court-appointed expert Homer Venters, M.D., observed that locking COVID inmates in the SHU “runs counter to CDC guidelines on making COVID-19 responses in detention settings non-punitive” and resulted in prisoners with COVID symptoms to hide those from staff in order to avoid the SHU.”
“Some prisoners can be in SHU for months with little communication with the outside world and hardly a recreation outside of the cell in which they are confined,” Pavlo wrote. “While prisoners may be in SHU for these administrative reasons, it certainly feels like punishment.”
The GAO recounted that SHU inmates had complained that they felt hungry “because meal portions were insufficient or were smaller than the meals provided in general population.” Others reported that recreation time was much less frequent than policy dictated. “One individual,” the GAO reported, “said that facility staff kept a toilet ‘full of excrement’ in one of the SHU cells to use as a punishment and then directed an orderly to clean it before a visit from the regional director.”
Senate Majority Whip Richard Durbin (D-IL), chairman of the Judiciary Committee, said the GAO report “shows a troubling trajectory for the number of federal prisoners in restrictive housing” and expressed concern that the “BOP has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices.” One of those studies was commissioned at BOP’s own request in 2014, meaning that some of the unmet recommendations are a decade old. Other recommendations are from a 2016 DOJ report that, among other things, recommended that the BOP ensure people with serious mental illness conditions were not put in restrictive housing.
BOP Director Colette Peters responded to GAO’s report by asserting that the BOP knows restrictive housing is not an effective deterrent and can increase future recidivism. Pavlo reported that Peters said the BOP plans to reduce the use of disciplinary segregation – part of a new rule proposed in the Feb 1 Federal Register – and will conduct unspecified “other studies… to address the issues brought forward by GAO.”
Homer Venters, M.D., COVID-19 Inspection of BOP Lompoc by Dr. Homer Venters, Dkt. NO. 101-1 (filed in Case No 2:20-cv-04450, CD Cal (September 25, 2020)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
A Cincinnati TV station, however, has done just that. WCPO-TV blasted Southern District of Ohio Judge Timothy Black for “neglecting his criminal cases, keeping a dead person on his docket, and ignoring inmates who filed emergency motions for release during the COVID-19 pandemic for several years.”
The station has reported that Judge Black “ignored motions filed by many inmates with health problems who urgently asked for release from prison during the peak of the pandemic, for as long as three years.” When the TV station pressed the judge for answers about the delay, Judge Black “finally took action in the days before and after Christmas 2023, denying motions from 15 defendants. Some motions were so old, that they had become moot because the Bureau of Prisons had already released inmates months or years prior.”
“The reason it’s called compassionate release is because there’s an immediacy to it. Addressing the immediate need three years later, is just wrong,” said attorney Jay Clark. “There is no timetable, no time limit, no deadline that the judges have to meet, but there has to be some measure of reason.”
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DOC ‘FEELGOOD’ HAS TO KNOW IT’S WRONG, 4TH CIRCUIT SAYS
Dr. Joel Smithers ran what the government claimed was a pill mill. The government’s witnesses painted a grim picture of the nonstop line of addicted people who drove 5-6 hours to pay Dr. Joel $300 in cash for an opioid prescription. Over the course of a few years, he wrote prescriptions for tens of thousands of doses.
At trial, Joel offered an explanation for every suspicious behavior identified by the government. — “why his patient forms didn’t indicate which pharmacy would fill their prescriptions, why he didn’t order MRIs when they were needed, why he didn’t take insurance, why he had an extremely unusual payment set-up… why he FedExed prescriptions to patients, and why he had a pre-signed prescription pad in the office… He said he believed that the prescriptions he’d written for each patient were for a legitimate medical purpose.”
The trial court refused to instruct the jury that they had to find Dr. Jerry lacked an actual belief that the prescriptions were appropriate. Joel was convicted of hundreds of 21 USC 841(a) counts and sentenced to 480 months.
While Doc Joel’s appeal was pending, the Supreme Court ruled in Ruan v. United States that when a criminal defendant is authorized to dispense controlled substances — such as a doctor who may lawfully prescribe medications — prosecutors can only win a conviction under 21 USC § 841(a) by proving beyond a reasonable doubt that the defendant intended to act or knew he or she was acting in an unauthorized manner.
Last Friday, the 4th Circuit threw out Joel’s conviction.
The government argued that, despite the Ruan decision, other instructions – such as willful blindness and “good faith” – were enough to tell the jury that it had to find that Joel knew what he was doing was wrong. The 4th rejected this, noting that the Ruancourt had rejected the same claim; Ruan noted that words like “good faith,” “objectively,” “reasonable,” or “honest effort” appear nowhere in the statute and would ‘turn a defendant’s criminal liability on the mental state of a hypothetical ‘reasonable’ doctor, rather than on the mental state of the defendant himself or herself’.”
Ruan held that “‘good faith’ is an objective test,” not the inquiry into the doctor’s actual state of mind that the statute requires. The “good faith” instruction in Joel’s case “directly contravenes Ruan,” the 4th said. “Far from helping the government, it proves Defendants point.”
Joel will get a new trial with a jury instructed that it must find that he “intended to act or knew he was acting in an unauthorized manner.”
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BOP SEEKS TO TOUGHEN PROHIBITED ACTS LIST
There is little about prison life more arbitrary and random than inmate discipline. The offenses – like the infamous “engaging in anti-Soviet agitation” crime in communist Russia – are so general and squishy that virtually any conduct can be shaped and kneaded to fit within some offense confines.
The evidentiary standard that the prison must meet in order to find that an inmate is guilty of an offense is so low that if an inmate is charged, she is as good as convicted. The Supreme Court has declared it to be the “some evidence” standard:
This standard is met if there was some evidence from which the conclusion of the administrative tribunal could be deduced. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.
Still, when the Federal Bureau of Prisons releases a proposed rule changing its list of prohibited acts, it’s a big deal. The BOP did so last Thursday, seeking public comment on a broad updating of its list of Prohibited Acts that sweepingly expands the conduct that is encompassed by some greatest severity category acts but dramatically cutting the use of disciplinary segregation.
Solitary confinement has gotten a well-deserved black eye in the last few years, and the BOP got that memo. Under the prohibited acts proposal, open for public comment until April 1, 2024, maximum first-offense disciplinary segregation would fall from a maximum of 365 days for a first 100-series violation to 60 days and 180 days to 30 days as a maximum punishment for a 200-series shot. No DS time could be assessed for a 300-series shot.
This is good. It makes the BOP look progressive and forward-thinking, exactly how an outfit that has jettisoned the expression “inmate” in favor of “Adults in Custody” ought to look. Correct. Compassionate. Fair.
However, most of the BOP’s disciplinary decisions don’t include a term in solitary as a sanction. Instead, the BOP has a whole menu of lesser punishments – including forfeiting good time, FSA credits, loss of commissary or phone or visiting privileges. The new proposal doubles down on lesser, more common penalties while looking virtuous for cutting seldom-used disciplinary segregation.
The fun doesn’t stop there. The proposal rolls out “additional examples of privileges that may be removed as a potential sanction: video visits, electronic device(s), and the use of electronic mail and messaging of any kind, including, but not limited to, through the TRULINCS system.”
The proposal expands a number of definitions of what constitutes particular prohibited acts, including
• Code 102 regarding escape will now include any unauthorized departure from the buildings, lands, property or perimeter (inside or outside) of any facility; unauthorized departure from community confinement, work detail, program or activity (whether escorted or unescorted); and unauthorized departure from any authorized location regardless of electronic monitoring devices.
• Code 108, possession of a hazardous tool – the code applied to people caught with cellphones – will now include as hazardous tools “items necessary in the use of these devices. Making these changes would allow for discipline “if telltale evidence of such items as a cellphone, electronic device, or escape paraphernalia were not found,” the BOP says, “but items which could only be used with prohibited items are found to have been used.”
• A new Code 194 is proposed, regarding unauthorized use of social media and fund transfer services. This Code would be applied “for accessing, using, or maintaining social media accounts” such as “Facebook, Twitter, Instagram, Snapchat, TikTok, etc… or directing others to establish or maintain social media accounts on the inmate’s behalf” for the purpose of committing criminal acts or any Greatest category prohibited act. This code would also prohibit inmate use of fund transfer services such as CashApp.
After the public comment period, a final version of the rule will be rolled out.
All of this matters because in text and in practice, the expansive prohibited acts definitions permit BOP employees – largely untrained in the disciplinary system – to write up inmates for conduct that seems far beyond any reasonable interpretation of the regs. In one case I worked on, an inmate became aware of a large stash of cellphones and other contraband. She had been trying to get the warden to sign off on a pending recommendation that she be sent to home confinement. When she explained to a BOP secretary that she wanted to talk to her unit manager about it, and hoped she could trade her information for the unit manager pushing the warden to sign off on her home confinement, the secretary accused her of trying to bribe a BOP employee.
The inmate was charged with Prohibited Act 216, which is described in the rules as “Giving or offering an official or staff member a bribe, or anything of value.” 28 CFR § 541.3, Table 1. Prohibited Act 216 is defined as a “high severity” offense. She got a hearing, after which the BOP hearing officer ruled that the evidence “shows you are willing to give information as long as you receive something in return. This demonstrates your willingness to bribe staff.”
The unit manager herself testified that she did not feel as though the inmate was trying to bribe her, but in the BOP, the allegation alone is usually treated as presumptive evidence of guilt. The secretary said it sounded like a bribe, so it was a bribe.
But is it bribery? The BOP thinks so.
Every defendant who cooperates with the government in hopes of getting a lesser sentence does the same thing this prisoner did, trade useful information for potential benefit. No matter. Providing information that contributed to institutional security was considered to be a bribe. The prisoner lost 21 days of good conduct time, four months of commissary, spent two months locked up in a cell awaiting disposition (this did not include any disciplinary segregation time), and was transferred to a higher-security facility. What’s worse is that the disciplinary record will be paraded in front of her judge as an argument against a sentence reduction, which will adversely affect her recidivism score.
The inmate’s habeas corpus appeal is still pending, but even if she wins and gets her 21 days back, most of the damage has been done.
The BOP already routinely punishes inmates with the Greatest category discipline for just living in a cell or cubicle where a cell phone is found, whether the inmate even knew of its presence. Expanding the sweep of already expansive Prohibited Acts will only give BOP staff greater opportunity for mischief.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
COURTS STARTING TO REJECT DOJ’S ATTACK ON NEW COMPASSIONATE RELEASE GUIDELINE
You may remember the old Dept of Justice bait-and-switch a year ago. DOJ told the Supreme Court that it shouldn’t grant review of acquitted conduct petitions because the Sentencing Commission was going to address the issue. Then, less than a month later, DOJ filed comments telling the Sentencing Commission that it lacked the authority to address acquitted conduct at all.
The DOJ’s at it again. Before the Sentencing Commission adopted a new USSG § 1B1.13 – the compassionate release guideline that became effective last November – there was a circuit split on whether a long sentence that was mandatory before the First Step Act passed but could no longer be imposed after First Step passed could constitute an extraordinary and compelling reason for a sentence reduction.
(This difference in sentence length depending on when the sentence was imposed is called “temporal disparity”).
Six circuits said temporal disparity could never be extraordinary and compelling. Five circuits said it could. The government opposed certiorari petitions in a number of cases that asked the Supreme Court to resolve the issue. The government told SCOTUS that the issue should be addressed by the Sentencing Commission, not the Court.
Now the Sentencing Commission has addressed it, directing in § 1B1.13(b)(6) that temporal disparity can be extraordinary and compelling if the inmate has done 10 years, if there’s a great sentence disparity, and if the inmate has a good prison record.
What is the DOJ’s response to that? It has filed oppositions all around the country, arguing that the Sentencing Commission’s (b)(6) guideline exceeded its statutory authority and is invalid. As Ronald Reagan used to say to Jimmy Carter, “There you go again…”
The government’s cookie-cutter oppositions are now being decided. A late November Southern District of Indiana decision in United States v. Jackson held that 7th Circuit precedent holds that the statutory definition of ‘extraordinary’ does not extend to temporal disparity, “which means there is a question about whether the Sentencing Commission exceeded its authority when it added this item to the list of potentially extraordinary and compelling reasons warranting a sentence reduction…” But because the defendant didn’t meet the 10-year minimum sentence required for a compassionate release under (b)(6), the court did not rule on its “question.”
In United States v. Carter, an Eastern District of Pennsylvania decision from three weeks ago, the district court ruled that the 3rd Circuit’s 2021 United States v. Andrews decision, which held a change in the law could never be an extraordinary and compelling reason for compassionate release “forecloses Carter’s argument that he is eligible… 1B1.13(b)(6) states that an ‘unusually long sentence’ may be deemed an extraordinary and compelling reason’ warranting compassionate release… That provision… is incompatible with Andrews…”
Two thoughtful decisions issued last week clash with Carter’s holding and Jackson’s implication.
In United States v. Capps, an Eastern District of Missouri court rejected the government’s argument that because First Step did not make changes in 18 USC § 924(c) and 21 USC § 841(b) retroactive, the Sentencing Commission cannot do so, either. “Congress is not shy about placing sentencing modification limits where it deems them appropriate,” the Capps court said. “Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. The absence of any such limitation is telling.”
The best repudiation of the government’s attempt to strip § 1B1.13(b)(6) of legitimacy came last Thursday. In United States v. Padgett, a Northern District of Florida district court ruled that making temporal disparity an “extraordinary and compelling” reason for compassionate release was exactly the kind of decision Congress intended the Commission to make.
“The government acknowledges that Congress directed the Commission to address the meaning of extraordinary and compelling,” the district court said. “But the government asserts the Commission went too far, because, the government says, a temporal disparity, no matter how great or how unusual, can never provide an extraordinary and compelling reason for a sentence reduction.”
The Court ruled:
The very fact that the circuits split on this issue suggests the meaning of ‘extraordinary and compelling’ is not as clear as the government now asserts. Instead, this is precisely the kind of issue Congress called on the Commission to resolve. Indeed, in United States v. Bryant… the 11th Circuit held binding the Sentencing Commission’s prior policy statement on this very issue, emphatically explaining that Congress left it to the Sentencing Commission to define ‘extraordinary and compelling,’ subject only to the requirement that rehabilitation alone is not enough. The Bryant court said relying on the Commission promotes uniformity, thus minimizes unwarranted sentence disparity, and that defining these terms is ‘not a task that the statute allocates to courts… A district court’s job is ‘simply’ to apply the Commission’s policy statements and, as required by the statute, consider the 3553(a) sentencing factors in deciding whether to reduce an eligible defendant’s sentence.
There is little doubt that the government or a defendant will fight this to the Supreme Court. For now, the proper application of the temporal disparity compassionate release guideline will be as random as it ever was before the new § 1B1.13.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
RUMOR CONTROL 101: WHAT HAPPENS ON FEBRUARY 1? (HINT: NOTHING)
My inbox has been flooded in the last few weeks with people wondering what all will happen today, Thursday, February 1st. One said changes in the gun laws will go into effect. Another heard that the meth laws will change. Another explained that all criminal history points from prior state convictions will be dropped from Guidelines criminal history. A fourth heard that acquitted conduct will be banned for sentencing purposes.
Yesterday, a prisoner complained that people were saying that effective today, FSA credits could be used by everyone, not just low- and minimum- recidivism level inmates. At least this last guy recognized that the rumor was bullshit on stilts, and responded with appropriate disgust.
The plain and sad fact is that NONE OF THESE RUMORS IS TRUE. NONE. ZERO. NADA. ZIP.
Congress is not changing the federal firearms statutes this year. With methamphetamine and fentanyl flowing across the border being a hot campaign issue, no one’s changing those laws, either. Congress can’t even approve a federal budget or aid to Ukraine and Israel, or a plan to stop the border crisis. Passing legislation that benefits a portion of the 160,000 federal prisoners is not on anyone’s radar.
True, the Sentencing Commission is considering what – if anything – to do with acquitted conduct, but any change in the Guidelines is not likely to be retroactive and is 10 months away at least. And the Supremes may cause real upheaval in the federal gun laws when Rahimi is decided in the next five months.
But nothing will happen today.
However, tomorrow… On February 2, the Time Reduction Fairy will emerge from her den. If she sees her shadow, we’re in for another year of no criminal justice reform. The smart money, unfortunately, is that February 2 is going to be sunny.
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ONLY THIS AND NOTHING MORE
US District Court Judge Yvonne Gonzalez Rogers (Northern District of California) told the associate warden at FCI Dublin last Friday that she’s coming to perform a short-notice inspection of the women’s prison to see how things operate.
Rogers plans to email the facility after 9:30 pm sometime in the next month to announce she will be showing up at the front gate at 5:30 the next morning. “I don’t want you to prep for it,” she told the AW. “I just want to show up.”
“’Tis some visitor entreating entrance at my prison door—
Some early visitor entreating entrance at my prison door;—
The judge will bring two of her staff and lawyers for the government and the class of sexual assault victims suing the BOP, but – according to KTVU-TV, Oakland – “but she also might shoo them away so that she can talk to anyone in the building that she wants.”
Rep Jackie Speier (D-Cal), since retired, visited the prison twice in early 2022. During her visit, Speier said, acting warden (and Deputy Regional Director) T. Ray Hinkle), tried to block her from speaking with several inmates who reported abuse and instead sent her to speak with hand-picked prisoners. Speier said Hinkle – later dismissively called sexual abuse committed by employees “an embarrassment.”
Speier said she told him: “This isn’t an embarrassment. This is a toxic work environment. It is a reprehensible set of circumstances.” Afterward, in an email to Dublin staff obtained by the AP, Hinkle alleged Speier “mistreated” prison workers and treated one employee “as though she had committed a crime.” Hinkle later was accused of retaliating against BOP employees who complained about prisoner abuse at Dublin, and he admitted to having beaten prisoners back in the 1990s. After these allegations and admissions, he was promoted.
Judge Rogers does not intend to be buffaloed like Rep Speier says she was. During her inspection of the facility, she told Dublin management, “there won’t be anything you can do other than follow me around.”
The Judge is hearing a lawsuit by the California Coalition of Women Prisons, asking the court to stop many of the harms reported at FCI Dublin, such as sexual abuse by the guards and retaliation for speaking up, and possibly appoint a “special master” over the facility to make sure reforms are being met, according to KTVU-TV.
Government attorneys representing the BOP maintain that while there used to be sex scandals at the prison, they are now part of a long-gone era because of new leadership.
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‘YOU HAD ONE JOB’, 5TH CIRCUIT TELLS LAWYER
A trial lawyer representing a client post-sentencing can fairly be said to only have one remaining task: To consult with the client about the advantages and disadvantages of appeal and to determine whether the client wants to file appeal papers with the court.
Lucas Tighe, represented by Attorney Sharon Diaz, pleaded guilty in 2019 to conspiracy and firearms charges. The court sentenced him to a top-of-the-Guidelines 150 months in prison, a sentence made up of the statutory maximum of 120 months on two counts (run concurrently) and 30 months consecutive for the conspiracy charge. Luke was also charged in state court for organized criminal activity related to the same gun issues as in his federal conviction.
Two months after his federal sentence, Luke got 15 years on his state charges. He wrote to the federal court asking it to run his federal sentences concurrent with the state sentence, claiming that he was misled by counsel and that he never saw his presentence report. The district court construed the letter as a 28 USC § 2255 motion, but when Luke did not respond, the court dismissed it. About 5 months later, Luke sent another letter to the court asking about his appeal. He told the court that he was in state custody, his attorney had told him she was not able to help him anymore, and he never received a copy of the judgment or sentencing paperwork. The district court appointed counsel, who filed a 28 USC § 2255 motion claiming ineffective assistance of counsel because trial counsel failed to perfect an appeal.
Luke said that he had directed Diaz prior to sentencing to ask the judge about running his federal sentence concurrently to any forthcoming state sentence but counsel “blew me off.” Luke complained that Diaz told him that after he was sentenced, she would visit him at the jail later that day, but she never showed.
The district court denied the § 2255 motion, but last week, the 5th Circuit reversed. “Diaz admitted that she had not advised Luke about the advantages or disadvantages of taking an appeal,” the Circuit said. She “excused her failure to directly ask Tighe before sentencing whether he wanted to appeal by saying, ‘Well, at that point, he hadn’t been sentenced yet, so — I did not ask him at that point if he wanted to appeal’.”
But after sentencing, she failed to ask Luke whether he wanted to appeal, relying instead on whether he successfully reached out to her from prison. Diaz said that if Luke had contacted her and “expressed his desire to appeal, then she would have advised him of the potential advantages or disadvantages of appealing.”
Not good enough, the 5th ruled: “Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.”
Here, the Circuit found a rational defendant in Luke’s situation would have wanted to appeal, and Luke reasonably demonstrated that he was interested in appealing. Luke and Diaz were admittedly both shocked by the court’s stacked 150-month sentence. “Regardless of whether Diaz did or did not tell Tighe that he would not get a stacked sentence, she still expressed shock over it,” the 5th said. “It is reasonable to expect that Tighe would have that same reaction.”
Also, Attorney Diaz acknowledged that Luke wanted to ask the district court to run his federal sentence concurrent with his state sentence,” but she failed to do that. “Those are all indications that Tighe would be interested in appealing. Further, Diaz excused her failure to directly ask Tighe whether he wanted to appeal because he had not yet been sentenced. Under that same reasoning, Diaz could not have properly consulted with Tighe about an appeal prior to sentencing when she gave him his notice of right to appeal because she would not yet have known the ‘advantages and disadvantages of taking an appeal’ that she is required to counsel her client on.”
In other words, you can’t fairly tell your client that a sentence should be appealed until you know what the sentence is.
“In the absence of any self-evident reason why Tighe would not have filed a direct appeal,” the 5th said, “and without any regard to the potential merits of such an appeal, we conclude that he has established prejudice…”
United States v. Tighe, Case No. 22-50332, 2024 U.S.App. LEXIS 1758 (5th Cir. January 25, 2024)
– Thomas L. Root
Research, Strategy, Tactics and Support for Lawyers
Good luck with that. A report last week illustrates the futility of expecting any favorable result from bar complaints against prosecutors.
Neither Ragsdale nor Roth was subject to any ethics charges or misconduct findings. Roth was later promoted to be inspector general for the Department of Homeland Security. And Ragsdale? He’s now in charge of the DOJ Office of Professional Responsibility, which oversees investigations into alleged prosecutorial misconduct.
