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THE RESUME FROM HELL

Rigoberto Ramirez-Gonzalez pled guilty to illegal reentry following deportation. At sentencing, he objected to a recommendation in the Presentence Investigation Report (“PSR”) that applied an 8-level enhancement for having committed an “aggravated felony.” The district court agreed and struck the enhancement. However, although Bert asked for it, the court did not order the PSR corrected to reflect that he had not committed an aggravated felony. The judge suggested his holding would be apparent in the Statement of Reasons attached to the judgment.

Bert appealed. While the appeal was pending, he completed his sentence and was deported.

Last week, the 5th Circuit said that what the judge had done was good enough.

There may be no more schizophrenic document in the federal criminal system than the PSR. It’s written by a Probation Officer who takes every word of the government as a pearl of truth, while remaining skeptical of the defendant even if he alleges that the sun rises in the east. At sentencing, the court is free to (and often does) ignore anything in the document it deems irrelevant to the sentence it imposes. Treatment of the contents of the PSR at sentencing could be fairly characterized as ‘cavalier.’

But once sentencing ends, the PSR begins to follow the defendant like an ugly and unwanted pet. The Bureau of Prisons deems every word in the document to be gospel, and relies on it to place inmates in facilities, qualify them for programs, and even determine how much halfway house or home confinement they should get at the end of their sentences. On supervised release, the Probation Department treats every word of the PSR as if it were vetted by the Almighty Himself. In sum, the PSR is pretty much like being forced to seek work with a resume written by the last guy who fired you. A resume you can never correct.

Bert wasn’t willing to let that happen. Sure the judge at sentencing said there had been no aggravated felony, but the PSR still said there has been. He argued that Federal Rule of Criminal Procedure 32(i)(3)(B) required the Court to correct misstatements in the PSR about the aggravated felony.

The PSR is a permanent court document that may be corrected at any time, even if the defendant is not present, the Court said, agreeing with Bert that errors in the PSR were “not harmless because it affects the defendant’s substantial rights,” and that “like a judgment, the PSR determines the rights and obligations of the defendant going forward.” To the extent that a PSR is “like a judgment,” the Court said, a challenge to an erroneous PSR is not moot after deportation.

Bert’s PSR listed a maximum sentence based on the spurious “aggravated felony,” and contained a specific reference to the aggravated felony being in his background. It also included an inaccurate total offense level and an inaccurate fine range. The district court did not specifically address the maximum sentence, but by finding that there was no “aggravated felony,” the “court effectively rejected the PSR’s recommendation of a twenty-year maximum and held instead that the ten-year maximum sentence of 8 U.S.C. § 1326(b)(1) applied.” In the Statement of Reasons, however (which is filed with the Judgment), the district court stated that the total offense level was “10,” so, the Circuit ruled, “the correct offense level and proper fine range could be easily determined. In short, the determinations that Ramirez-Gonzalez seeks are implicit from the court’s bench rulings and the Statement of Reasons, and that suffices for the purposes of Rule 32(i)(3)(B).”

After all, the appellate court said, “the district court did ‘append’ a Statement of Reasons that would necessarily be included with the PSR sent to the Bureau of Prisons. The Statement of Reasons stated that the court adopted the PSR ‘with the following changes . . .’” Those changes included raising the offense level by 4 levels, although the PSR recommended an eight-level enhancement.” Of course, anyone who read both the PSR and Statement of Reasons, and cross-referenced the SOR findings with the PSR findings, and double-checked against the transcript of the sentencing (which may or may not have ever been prepared, and which is not provided to the BOP or other agencies that get the PSR), it would be as plain as the nose on one’s face.

The Court of Appeals said the district court’s treatment of Bert’s complaint was good enough, because “the court’s implicit findings on the disputed issues were necessarily apparent from the explicit statements in the Statement of Reasons.”

United States v. Ramirez-Gonzalez, Case No. 15-41065 (5th Cir., Oct. 26, 2016)

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THE DARK SIDE OF OBAMA’S COMMUTATION PUSH IS NOT BEING REPORTED ON… AND TIME’S RUNNING OUT

Over the past weekend, the usual suspects in the media have been gushing over President Obama’s latest clemency grant to 98 more federal inmates. But there’s a darker side to Obama’s opaque commutation process that few are noting.

First, the program’s numbers are really pretty ugly so far. In Obama’s 2,842 days in office, he’s disposed of 11,832 clemency petitions. But he’s granted only 782 of them, a success rate for inmates of under 5%.

Not that anyone’s really talking about that.  On Oct. 6, for example, the White House announced with its usual fanfare that Obama had granted 102 commutations. It was a week later that DOJ quietly revealed that, at about the same time, the White House had denied 2,917 commutation petitions.

Second, some claim there’s not enough transparency about why some get clemency while others wait, and fret that time is running out. No one outside of the process knows the reasons for denials. “We want answers for the families who are still waiting for their clemency,” said Jessica Jackson Sloan, national director of the pro-clemency group Cut 50. “There needs to be more communication about why people are being denied.”

White House Counsel Neil Eggleston said that of last week’s 98 commutations, 42 of the inmates were serving life sentences. A total of 308 life sentences have been commuted so far.

Finally, as of the Oct. 6 report, 11,253 clemency petitions were pending. Do you remember pulling an all-nighter in college, and along about 5 a.m. the panic set in as you realize you only had a few hours until the exam and 15 chapters yet to review?  Obama must be feeling that right now.  As of today, he has 80 days left in office (and that’s if he skips Hawaii this Christmas) to act on the remaining clemency petitions.

Both Deputy Attorney General Sally Yates and White House Counsel Eggleston have promised that all pending petitions – that would be over 11,000 of them – will be acted on. For math fans, that works out to disposing of 137.5 petitions a day between now and Friday, January 20, 2017 at noon. For comparison, Obama has disposed of an average of 6.59 petitions a day since he took office in 2009.

The math is relentless – and pretty daunting at this point in Obama’s presidency.

USA Today, Obama grants 98 more commutations, setting single-year clemency record (Oct. 27, 2016)

SCOTUS FILLING ITS DOCKET

The lawyers arguing Beckles v. United States, the Supreme Court case considering whether Johnson v. United States applies to the Sentencing Guidelines, won’t have much of a Thanksgiving weekend. The Court announced last week that it will hear oral arguments in the case on Monday, Nov. 28, at the end of the long holiday weekend.

In other Supreme Court news, the Court granted certiorari to a trio of criminal cases last week. In the first, Dean v. United States, the court will consider a trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the § 924(c) conviction. Dean is arguing the district court had the authority to impose a very short sentence — as little as one day — for his robbery convictions, to take into account the much longer sentence required by § 924(c).

In Packingham v. North Carolina, the defendant became a registered sex offender after he was convicted (at age 21), of taking indecent liberties with a minor. Six years after his conviction, North Carolina made it a felony for registered sex offenders to access many websites, including Facebook, The New York Times and YouTube. Packingham was convicted of violating this law after he posted to Facebook, thanking God for dismissal of a traffic ticket. Packingham argues the law violates the First Amendment.

Finally, in Esquivel-Quintana v. Lynch, the petitioner was a permanent resident of the United States in 2009, when he was charged with violating a California law because he – at age 21 – had consensual sex with his 16-year-old girlfriend. The feds government sought to remove Esquivel-Quintana from the USA on the ground his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The Supreme Court will decide whether that removal is correct.

SCOTUSBlog, Court Adds Five New Cases to Docket (Oct. 28, 2016)

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6TH CIRCUIT HOLD MICHIGAN BURGLARY STATUTE IS NOT ACCA PREDICATE

Reversing its pre-Mathis decisions on the subject, the U.S. Court of Appeals for the 6th Circuit ruled yesterday that the Michigan breaking and entering statute (Mich. Comp. Laws § 750.110) is too broad to serve as a generic burglary predicate for the federal Armed Career Criminal Act.

Under the ACCA, possession of a firearm by a convicted felon who has three prior crimes of violence or serious drug felonies carries a mandatory sentence of at least 15 years. The statute defines a “crime of violence” as including burglary, arson, extortion or use of explosives.

A burglary, however, isn’t necessarily a burglary. The Supreme Court has ruled that the enumerated crimes in the ACCA are intended to be the general, common-law versions of those offenses. Federal courts have struggled over the years, however, to determine whether state statutes that sometimes define a burglary much more broadly than what it originally was, are still predicates for the ACCA. After the Supreme Court’s decision in Mathis v. United States earlier this year – which redefined how such broad statutes are to be parsed – the task has only become harder.

For example, at common law, a burglary was defined as the “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Many state statutes, however, defined burglary as included entry into cars, boats, tents, back yards and even vending machines. While states are entitled to adopt such expansive definitions, federal law is not required to heap on additional punishment under the ACCA by including such conduct under the label “burglary.”

Chris Ritchey was caught with a gun, and convicted of being a felon in possession under 18 U.S.C. 922(g). Because he had six prior convictions for breaking and entering under Mich. Comp. Laws § 750.110, he was sentenced under the ACCA to 15 years.

Two days ago, the 6th Circuit reversed the sentence. The Court had previously held that convictions under Mich. Comp. Laws § 750.110 counted for ACCA purposes, but that was before this past summer’s Mathis decision. “Generally,” the Court noted, “a prior published decision binds a later panel of this court unless it is overturned by the Supreme Court or overruled en banc, but departure is also warranted if ‘an inconsistent [ruling] of the United States Supreme Court requires modification of the decision’.”

The Michigan statute held that a “person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not more than 10 years.” Previously, the district court was permitted to look at the state court records to see whether the defendant had broken into a structure – which would count for ACCA purposes – or something else, like a boat, a railroad car or a shipping container (which would not count). But Mathis made clear that unless the list of places one could break into to under the statute were separate elements, courts were not allowed to review state court records to decide exactly what the defendant was said to have done.

The Circuit found that “the Michigan Court of Appeals has labeled the statutory alternatives in § 750.110 as ‘examples,’ which cuts against finding that they are, in fact, elements. In defining the elements of breaking and entering, Michigan courts have also treated violations of § 750.110 as a single crime regardless of the particular place broken into.” Plus, the Court observed, the Michigan pattern jury instructions “do not mandate that the trial court identify the particular place at issue. In addition, they indicate that § 750.110’s list is comprised of “type[s] of building[s]” that qualify under the statute—not separate elements of distinct crimes.” Finally, the Court said, the list in § 750.110 of places that can be broken into includes the phrase “or other building,” implying that the list is non-exhaustive, further evidence that the list of places is not intended to be a list of elements of the crime.

Thus, the Circuit said, “only one conclusion is possible under Mathis: a conviction under § 750.110 cannot serve as a predicate offense under ACCA.”

United States v. Ritchey, Case No. 15-2460 (6th Cir., Oct. 26, 2016)

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DON’T SING

An old Russian proverb warns that “when you’re in it up to your neck, don’t sing.” Frank Piper could tell you something about that.

Frank’s doing 135 months for a cocaine conspiracy. He filed a motion for sentence reduction in response to the 2-level reduction adopted by the Sentencing Commission. The public defender filed a boiler-plate 18 U.S.C. 3582(c)(2) motion that was heavy on policy arguments but bereft of any meaningful discussion about why Frank should get a sentence cut.

The government had a few good reasons why Frank’s motion should be denied, not the least of which was that – after he pled guilty but before he was sentenced – Frank had created a rap video posted to YouTube in order to intimidate four cooperating witnesses whose statements had appeared in his Presentence Report. The video rapped “an anti-cooperation message – referencing ‘conspiracy’ as ‘the hardest charge to beat’ and someone who ‘would try to tell on me’,” as well as darkly warning people to “stop snitchin’.”

Images in the video included Frank using his index finger to simulate pulling a trigger and a bound-and-gagged hostage in a dark room, who is later shown in a posture suggesting he’d been killed. A screen caption instructing to send letters and pictures to the defendant’s prison address.

The government argued the video demonstrated Frank was a public safety hazard, and thus, that “a reduced sentence… was therefore unwarranted under the 18 U.S.C. § 3553(a) factors, which a district court must consider when determining whether to reduce a sentence under § 3582(c)(2).”

Strangely, Frank did not contest the provenance of the video, but instead just claimed he had had nothing to do with putting the video on YouTube. Unsurprisingly, the district court was not impressed with the argument, denying Frank’s sentence reduction motion based on “the scope of defendant’s conduct in connection with the [underlying] offenses, the significant danger to the community by defendant’s participation in” that offense, and his “rap video.”

This week, the 10th Circuit agreed, sweeping aside Frank’s claim that the district court was not allowed to consider newly alleged presentencing conduct not addressed at the original sentencing and that the court erroneously concluded Frank intended the video to be viewed by and construed as a threat to the cooperating witnesses.

In determining whether a 3582(c)(2) reduction should be granted, a judge first determines the defendant qualifies. If he or she does qualify (and more than two out of five don’t), the judge must then consider any applicable § 3553(a) sentencing factors. Additionally, the judge may (but not must) consider the defendant’s post-sentencing conduct. After those considerations, the judge may pretty much do whatever he or she wants to do, grant the whole reduction, part of the reduction, or – as in Frank’s case – none of it.

Under 3582(c)(2) and its implementing Guideline, § 1B1.10, the district court cannot monkey with any of the Guidelines determinations in the original sentencing except for the change authorized by the Sentencing Commission.

Frank figured he could drive his truck through the hole this created. His unfortunate video was not post-sentencing conduct, because he had made it before sentencing. But because the government didn’t find out about it until after sentencing, it was not part of his original sentencing, so – as Frank argued it – the judge couldn’t use it against him now. Frank argued § 1B1.10 “requires the court to place the defendant in the posture he was at his original sentencing, with the only difference being the substituted guideline” and that a court must therefore disregard new allegations of presentencing conduct.

Nice try, the Circuit said. It said its precedent holds only that “district courts in § 3582(c)(2) proceedings cannot make findings inconsistent with that of the original sentencing court… not that a district court must disregard new allegations of presentencing conduct.” In Frank’s case, the new findings about the old video “are not and cannot be inconsistent with the findings from the original sentencing proceedings because the video’s existence and its contents were not even known at the time of Mr. Piper’s original sentencing.” After all, the Court of Appeals said, 1BI.10 directs court to “consider the factors” in 18 U.S.C. 3553(a), and “because § 3553(a) includes consideration of presentencing conduct, including the ‘nature and circumstances of the [underlying] offense and the history and characteristics of the defendant,’ Mr. Piper’s argument that the court may consider only post-sentencing conduct is inconsistent with § 1B 1.10.”

Finally, the Court said, 1B1.10’s requirement that a court substitute the amended guideline and “leave all other guideline application decisions unaffected” does not mean the court must disregard newly alleged presentencing conduct at step two when the court considers the § 3553(a) factors. “Because nothing in the case law or in § 1BI.10 clearly requires a district court to disregard new allegations of presentencing conduct,” the Court held, Frank was out of luck.

As for the claim that the district court was wrong in its conclusions that Frank created the video “so that it would be disclosed, viewed and construed as a threat to cooperators,” the 10th let the video speak for itself: “The video shows Mr. Piper and another individual extend their hands toward the camera and make a trigger-pulling motion with their index fingers, while the lyrics ‘try to tell on me’ play.”

C’mon, man. Next time, be a little more subtle. Or better yet, you want to sing, do it in the shower.

United States v. Piper, Case No. 15-3288 (10th Cir., Oct. 25, 2016)

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TWO OUTTA THREE AIN’T BAD

The U.S. Sentencing Commission issued a report yesterday on the results of the 2-level reduction in drug base offense levels it adopted in 2014’s Amendment 782 (made retroactive by Amendment 788). Of the 43,500 inmates who applied to the courts for a sentence reduction under the amended Guideline, two-thirds were given sentence reductions averaging 17.2%.

The 2014 Drug Guidelines Amendment Retroactivity Data Report provides numbers from which much useful information can be gleaned:

• South Beach is nicer than Appalachia: Only 14% of the sentence reduction motions filed in the Southern District of Florida were denied, but 55% of those filed in the Eastern District of Kentucky were denied.

• This isn’t just about crack: The popular perception is that drug guideline reductions primarily benefit inmates with crack sentences. But 31.5% of the reductions went to meth offenders and 28.5% to cocaine powder defendant. Crack was a distant third at 19.9%, pot at 8.7%, heroin at 7% and oxycontin at 2.5%. No other drug was as much as 1%.

• Don’t trust the BOP to help: A motion under 18 U.S.C. 3582 for sentence reduction may be made by the defendant, by the court itself, or by the director of the BOP. In the last round, defendants themselves filed 83% of the motions, and the courts filed 17%. Out of the 43,500 filings, the BOP Director filed a total of zero. Not a one.

• A conversation about race: Of the people getting sentence reductions, 23% were white and 34% were black. The big winners were Hispanics, who represented 41% of people getting sentence cuts.

• Pay me now or pay me later: If you were lucky enough to get sentenced below your Guidelines range, you were less likely to be lucky on a sentence reduction. Of sentence reductions granted, 64% were for people who had gotten an in-range Guidelines sentence to begin with. Of sentence reductions denied, 49% were people who had gotten an in-range Guidelines sentence to begin with. For people who started out lucky with a below-range sentence, the odds were much poorer, 35% of the granted app pile, 50% of the rejects.

• You can get farther with a smile and a gun: People with a firearms enhancement to their drug sentence or a consecutive firearms sentence did neither better nor worse than anyone else in getting sentence reduction.

• Did we undersell just a little? When the Sentencing Commission announced the 2014 2-level reduction, it said that people benefitting from it would get sentence cuts averaging 11 months. Perhaps that was because it sounded better than anything with the word ‘year’ in it. But whatever, the Commission lowballed it badly. The average sentence before the reduction was 143 months, but only 118 months afterwards. In other words, the average sentence cut (17.2%) was 25 months, more than double the Commission estimate.

• Where not to be: After the 2014 2-level reduction, the best Circuit in which to be a drug defendant is the 6th (average sentence 103 months), with the 1st and 9th right behind. The worst place for drug trafficking is the 4th (average sentence 130 months), with the 7th and 11th nearly as severe.

• Failure is often an option: Amazingly enough, 64% of denied sentence reduction motions are because the defendant is not eligible to begin with, something that should be obvious to every applicant before putting a stamp on the application envelope. Only 21.5% of sentence reduction motions were denied because – while the inmate was eligible – the court decided the defendant should, in the words of Judge Smails of Caddyshack, “you’ll get nothing and like it!”

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (Oct. 25, 2016)

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THE LONG AND WINDING ROAD

Remember Bil Keane’s comic strip Family Circus? Keane started the strip in 1960, and his son is keeping it going strong.

One of Family Circus’s recurring themes was the depiction of the circuitous routes young Jeffy would take – traced in dashed line – when he had been sent on some time-sensitive errand. Yesterday, the 10th Circuit faced a similar situation in a methamphetamine case, and held that by the time perps had gotten from Point A to Point B, a court could no longer assume that what was at Point B had anything to do with the defendant who was at Point A.

Confused? Follow. Emanuel Godinez-Perez was indicted for conspiracy to traffic in 500 grams or more of meth, and a couple of distribution counts for 50 grams or more. He pled guilty without a plea agreement.

During the investigation, agents seized ten different quantities of meth, 96% pure, which amounted to 1,505 grams. His sentencing court set his base offense level at between 1.5 and 4.5 kilos, and – after all of the other factors were weighed – Manny’s sentencing range was 108-135 months. The court gave him 108.

Manny admitted that about 602 grams were under his control, but another 887 grams were seized in the search of a storage unit he had nothing to do with. He argued “the record does not support that [he] agreed to jointly undertake the distribution of more than 1.5 kilograms of [I]ce.” Manny complained that the district court was required to “make particularized findings about relevant conduct—here, the drug quantity and type — attributable to the defendant, rather than just default to the overall conspiracy.”

What happened was this: Agents set up a controlled buy with Manny, but he said he couldn’t meet the CI until after he got off work. Meanwhile, agents were watching an apartment on Central Avenue in Kansas City – near where Manny had made prior sales – when they three guys get into Chevy SUV and drive away. The SUV went to a gas station, where the guys got out and made some cellphone calls. A little while later, the SUV left the gas station and went a grocery store. The SUV parked there until a Jeep came by, and then followed the Jeep to another apartment complex. A little while later, the SUV and Jeep left the apartments, and drove to a self-storage unit in Olathe, Kansas. The people from both cars went into Unit 17D. A few minutes later, they all left.

Later, the CI got a call from Manny that he was ready, and they exchanged 4 ounces of ice for $3,600. At that time, Manny quoted the CI prices for pound and kilo quantities.

The agents brought a drug-sniffing dog to the self-store, and after the mutt alerted to Unit 17D, found 887 grams of ice.

Yesterday, the 10th Circuit agreed. Guidelines Sec. 1B1.3, which addresses relevant conduct, is intended to make the punishment fit the crime. It says a defendant’s base offense level shall be determined on the basis of everything the defendant did, plus, “in the case of a jointly undertaken criminal activity… all acts and omissions of others that were… within the scope of the jointly undertaken criminal activity… in furtherance of that criminal activity, and… reasonably foreseeable in connection with that criminal activity.” This includes drugs the defendant didn’t handle, if possession by a co-conspirator was in furtherance of the jointly undertaken criminal activity, and reasonably foreseeable in connection with that criminal activity.

Manny might have been smart to avoid the plea agreement, because the only thing he admitted to in his guilty plea was distributing more than 50 grams and conspiring on more than 500. The problem is, the appellate court said, is that “the district court adopted the factual findings contained in the Presentence Report and otherwise made no independent factual findings of its own at the time of sentencing. Unfortunately, however, the factual findings contained in the PSR and adopted by the district court did not address the scope of the criminal activity that Godinez agreed to jointly undertake. Nor did the PSR’s factual findings otherwise include information specifically linking Godinez to all of the quantities of methamphetamine that were seized during the investigation. Consequently, we conclude… the district court erred…”

The government said it could put Manny at the storage unit, but the Circuit said that “the storage unit may not have been owned, rented, or otherwise controlled by Godinez or a coconspirator… In other words, the limited evidence contained in the record on appeal is not so one-sided that the district court would have had no choice but to attribute to Godinez, as part of the conspiracy to which he pled guilty, the 887.26 grams of methamphetamine that were stored in and seized from the storage unit.”

Manny isn’t home free. He goes back for resentencing, at which time the government is free to try to connect him to the 887 grams.

United States v. Godinez-Perez, Case No. 15-3159  (10th  Cir.  Oct. 24, 2016)

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A COUPLE OF LOOSE ENDS…

EXONERATION

Last year, 157 people nationwide were exonerated—a record number. That’s not just found not guilty, or even having convictions vacated because of trial errors. Exoneration means the defendants had been convicted, but the convictions were thrown out because the defendants were innocent.

It’s rare, but the number is increasing. Last week, the New Yorker magazine reported, “Amid growing awareness of the scope of the problem, the National Registry of Exonerations has gathered data on wrongful convictions going back to 1989, logging nearly 2,000, and the number is only a fraction of the convictions that are now being contested on the ground of innocence.

In the popular imagination, blame for wrongful convictions falls on individuals: the racist prosecutor, the crooked cop.” That does happen, but it’s mostly a made-for-TV storyline. More often, observers are coming to believe that “the problem is more fundamental—that the workings of the criminal-justice system itself have led even conscientious prosecutors, judges, and juries to put innocent people in prison.”

Academic researchers are also focusing on the systemic nature of many conviction errors. Richard A. Leo, a professor of law and psychology at the University of San Francisco, is quoted by the New Yorker as saying, “The way everyone talks about it is very legal—false confessions, police coercion, eyewitness I.D.s.” Leo believes “that the real issues are far broader, and include the adversarial structure of trials, confirmation bias, cultural notions about what indicates guilt, and a basic human tendency to attribute meaning to details that may be coincidental.

Professor Leo said he once tried to calculate the number of people involved in a wrongful conviction, from police officers and prosecutors to jurors: “It’s staggering,” he said, “it’s, like, fifty people involved in every single one.”

The system is the reason behind a Valpraiso University Law School professor’s suggestion last week that the United States government appoint a “Defender General.” Andrea Lyon wrote in the Indiana Lawyer that “there has been no voice at the policy table for the accused, incarcerated and paroled. We have an attorney general of the United States. We have a solicitor general of the United States. The only lawyer that is enshrined in the United States Constitution is referenced in the Sixth Amendment: ‘In all criminal prosecutions, the accused shall enjoy the right to… the Assistance of Counsel for his defence.’ Yet, the defense is not, and has not been a part of policy decisions regarding criminal justice matters. There is currently no office to represent criminal justice interests at the executive level the way that the attorney general does.”

Prof. Lyon argued that “defendants and defense attorneys need a representative at the executive level who can collaborate on major policy issues, establish national and statewide standards, and coordinate training efforts within the criminal justice system. This is a crucial voice that should be a regular part of the executive discourse and an ongoing resource for indigent defense.”

An Ex-Cop’s Remorse, The New Yorker, October 24, 2016

The United States needs a defender general, Indiana Lawyer, October 19, 2016

WHITE HOUSE STILL APPARENTLY PROMISING PUSH ON CLEMENCY

With the clemency petitions granted earlier this month, President Obama brought his total to 774 commutations granted over his two terms. It’s more either of his successors will likely grant. Hillary Clinton has not said whether she will make clemency a priority. Donald Trump definitely will not: he calls the offenders whose sentences have been commuted “bad dudes.”

In August, Deputy Attorney General Sally Q. Yates said the Office of Pardon Attorney will act on “every single drug petition” it has. There are still 13,275 petitions on file. Clemency Project 2014, a countrywide network of lawyers who vet petitions for the Pardon Attorney, promises to keep filing inmates’ requests until the last moment possible. So far, the Project has winnowed 33,000 applicants down to around 1,700 petitions considered grantable.

Obama has 77 days left in office. “The pressure is incredible, and it’s increasing exponentially,” according to Amy Povah, the founder of CAN-DO, a nonprofit that advocates for clemency applicants. “People are starting to panic.”

Obama is trying to fix the ‘war on drugs’ with clemency — but it won’t make a dent in mass incarceration, Business Insider (October 23, 2016)

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WATER PARK DEFENDANT LEFT HIGH AND DRY BY DEFENSE COUNSEL

Isaac Seabrooks and his confederate Nigel Butler were criminals, but not very good ones. They pulled into the public lot of Grapeland Water Park, a pretty cool-looking municipal park in Miami. But they weren’t swimmers. Instead, they had larceny on their minds.

While park ranger Qonsheka Smith watched them from her vantage point, Isaac sat in the car while Nigel broke into a pickup truck parked there. He scored some items of dubious value, including three rather cheap and throwaway handguns.

The two drove off while Qonsheka frantically called for backup, but the pair disappeared before the police arrived. Qonsheka wrote the whole thing off as a failed bust, but a few minutes after the police left, our bumbling anti-heroes returned to the lot. Qonsheka called the law again, and this time, the police blockaded the exit before Isaac and Nigel could leave.

Isaac ultimately was charged federally with being a felon-in-possession of guns and ammo, and possession of stolen firearms. He argued adamantly that he had not “possessed” anything, and that he told Nigel to not bring the guns and ammo into the car. The government argued that even if he had not possessed the firearms himself, the jury could find he aided and abetted Nigel.

Aiding and abetting is a pernicious statute. Ordinarily, any act a defendant can do may be done by directing someone else, or it may be done by acting with or under the direction of the someone else. The standard jury instruction says that a “defendant aids and abets another person if the defendant intentionally joins with a person to commit a crime.” In other words, Isaac was guilt of felon-in-possession if he aided and abetted Nigel.

Isacc’s lawyer objected generally to the instruction on the grounds that the evidence did not support it, but the district court overruled him. Not until appeal did Isaac advance a new and novel argument, that after Rosemond v. United States, in order to obtain an aiding and abetting instruction on the possession of stolen guns charge, the government must prove that he had “advance knowledge” that there were firearms in the victim’s truck and that Nigel intended to steal them.

If defense counsel does not properly preserve an objection to a mistake at trial, all is not lost. But mostly it is. Rule 52(b) of the Federal Rules of Criminal Procedure says that a “plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” That standard generally proves to be much more daunting that you might think.

This week, the 11th Circuit turned down Isaac’s appeal. Although Isaac’s lawyer objected to the aiding and abetting instruction at trial, the Court of Appeals said that “general objection to the sufficiency of the evidence did not preserve the more specific Rosemond claim he now raises.” To preserve an issue at trial for later consideration by an appellate court, a defendant must raise an objection that is sufficient to inform the trial court and government of the particular grounds upon which appellate relief will later be sought. A general objection or an objection on other grounds simply will not do.

Thus, the Court reviewed the Rosemond issue for “plain error” only. But why’s that such a big deal? Well, it’s like this. Regular appellate review of legal issues is de novo. Isaac argued that Rosemond requires that he have advance knowledge That is to say, ‘was the judge wrong?’ “Plain error” review, however, asks ‘was the judge really wrong?’ That is the difference, as Mark Twain once wrote, between ‘lightning’ and ‘lightning bug.’

Isaac argued that under Rosemond, the government had to prove both that he knew Nigel was going to possess a firearm and knew Nigel was a convicted felon. The government disagreed, arguing that all Isaac had to know was that Nigel was possessing a firearm.

The 11th Circuit admitted that neither it nor the Supreme Court had addressed the question of whether a defendant had to know the principal was a convicted felon was an essential element of the offense of aiding and abetting a § 922(g) violation. Other circuits that had addressed disagreed. The 9th says the “government need prove beyond a reasonable doubt that the putative aider and abettor knew the facts that make the principal’s conduct criminal.”  Four different circuits go the other way.

If Isaac’s lawyer had properly objected that the government had to prove Isaac knew Nigel was a felon, the 11th Circuit probably would have gone with the majority of the circuits. Isaac would not have been convicted of the felon-in-possession count, and he wouldn’t be doing 20 years. But because his lawyer did not object specifically on the Rosemond issue, the Circuit said “we need not decide this question because there can be no plain error when neither the Supreme Court nor this Court has resolved the issue and other circuits are split.”

United States v. Seabrooks, Case No. 15-10380 (11th Cir.   October 19, 2016)

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 I’M BORED

There’s nothing quite like ennui. Just ask Mike Walker.

On January 21, 2014, Mike was charged in with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. Secs. 922(g) and 924(e). He saw the judge for the first time three days later. His lawyer filed the usual motions, including a motion to suppress evidence obtained during a traffic stop. In June, the suppression motion was denied after an evidentiary hearing. Two weeks after the denial of the suppression motion, the government filed its motions in limine in anticipation of the then-scheduled June 30 trial date.

Then things started going sideways. Mike’s lawyer moved for a competency evaluation for his client, and then moved to withdraw as counsel. The district court granted the motions, directed the Attorney General to conduct an evaluation, and ordered that the report be returned “within 30 days or as soon as possible.” But, with usual Marshal Service efficiency, Mike was not transported to the Metropolitan Correctional Center (MCC) in Chicago, Illinois, for his evaluation until late August. On September 16, the district court granted MCC’s request for an extension to complete the evaluation, and ordered the report be filed by October 31. The court got the report via email on November 14, and, approximately 10 days later, conducted a competency hearing. On December 1, the court entered an order, finding that Mike was competent.

Mike’s new lawyer moved to dismiss the case, contending that the delay occasioned by the competency proceedings violated his right to a speedy trial under both the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(1) (“STA”), and the 6th Amendment. The district court denied the motions. Mike went to trial on January 5, 2015, and lost, getting a 20-year sentence.

This week, the 8th Circuit upheld the conviction. The decision that the STA was not violated is unremarkable, but the Court’s analysis of the 6th Amendment claim is worth considering.

The 6th Amendment guarantees a criminal defendant the right to a speedy trial, completely apart from the STA. To determine whether there has been a 6th Amendment violation, courts consider a test first adopted by the Supreme Court in Barker v. Wingo: (1) the length of delay; (2) the reason for the delay;(3) defendant’s assertion of his right; and (4) prejudice. If a defendant makes an initial showing of delay, the court will consider the extent to which the delay stretches beyond the “bare minimum” needed to trigger judicial examination. No one knows for sure what the “bare minimum” is, but some courts have suggested “a delay approaching a year.”

The 8th said delay of 11-1/2 months between Mike’s indictment and his trial “meets the threshold, but barely.” The Court found Mike was “responsible for most of the delay, which was occasioned by his motions to suppress evidence, for a competency evaluation, and to dismiss.” The Court found no evidence the government intentionally caused delay in order to gain a tactical advantage. As to the third factor, Mike did assert his speedy-trial right promptly, filing the claim on November 17, three days after MCC returned its report regarding his competency.

If defendants (and inmates filing post-conviction motions) fall down on anything, it’s proving they were prejudiced (hurt) by the conduct about which they’re complaining. Prejudice usually is the sine qua non of winning a motion. It certainly was here, and Mike dropped the ball. As to the “prejudice” factor, the best Mike could was to assert that he was prejudiced by the delay due to the “ennui of waiting.” He did not argue that his defense was impaired by the delay. The Court said that Mike’s “’ennui,’ without more, is insufficient to demonstrate prejudice. “

Prejudice means prejudice. It means that the bad stuff that happened hurt you somehow. In a 6th Amendment speedy trial sense, the delay had to somehow hurt your ability to defend yourself – witnesses disappearing, physical evidence deteriorating, memories fading… that kind of thing. No doubt jail is mind-numbingly boring, but that – without more – is a sad fact of life, not Barker v. Wingo prejudice.

United States v, Walker, Case No. 15-2921 (8th Circuit, Oct. 18, 2016)

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HOW MIGHT SENTENCING REFORM FARE IN THE ELECTION?

Republican presidential candidate Donald Trump has embraced of “law and order,” with all that portends for sentencing reform. But how about Democrat Hillary Clinton (who is considered by the polls to be leading)?

Presidential clemency has received more attention than usual this year after Obama began to make broad use of the power. Clinton has not said whether she would continue Obama’s trend of granting mass commutations to hundreds of prisoners at a time. Her platform includes “allowing current nonviolent prisoners to seek fairer sentences,” but she seldom mentions clemency.

Instead, Clinton supports halving current mandatory minimum sentences for nonviolent drug offenders, retroactively applying equal sentencing to crack and powder cocaine offenses, and eliminating nonviolent drug offenses from the Armed Career Criminal Act and violent-crime definitions. Also, drug-policy reform advocates hope Clinton would adopt a progressive stance on federal marijuana laws.

Surprisingly during the Vice Presidential Debate two weeks ago, Republican VP Candidate Mike Pence expressed his support for criminal justice reform. “I would say that we need to adopt criminal justice reform nationally. I had signed criminal justice reform in the state of Indiana senate, and very proud about it,” Pence said. “I worked in Congress on the Second Chance Act. We have got to do a better job recognizing and correcting the errors in the system that do reflect institutional bias in criminal justice.”

As Indiana governor, Pence pushed through reforms that cut sentences for some drug crimes, provided opportunities for drug rehabilitation, kept low-level, nonviolent offenders out of the state’s department of corrections, and provided mental health treatment for those who needed it.

Holly Harris, Executive Director of the US Justice Action Network, said Pence’s statement “breathes new life into criminal justice reform.”

Where Hillary Clinton stands on criminal justice reform, Business Insider (Oct. 8, 2016)

Pence supports national criminal justice reform that ‘removes institutional bias’, Americans for Tax Reform (Oct. 11, 2016)