How Shall I Release Thee? Let Me Count the Ways – Update for January 7, 2020

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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.

THE GOLDILOCKS OPTION

All of the New Year’s Eve revelers had not yet left Times Square when the first rumor of the new year landed in my email inbox. An inmate reader wrote: “The Bureau of Prisons is saying that even though the law now says that good time is to be applied based on length of sentence, the ‘rules’ say that they are to evaluate an inmate at the end of the year for good conduct, therefore it can only apply to time served.”

corso170112Not so fast, my friend. As the Old Man of 2019 disappeared through the door – and ‘good riddance!’ many of us thought  – the BOP issued a proposed change to 28 CFR § 523.20 it intends to follow in applying the changes in the good time statute (18 USC § 3624(b)(1)) brought about by the First Step Act. The notice, of course, was published in the Federal Register, where everyone was sure to see it.

Time out for some remedial government class, for those who sat in the back texting their friends. Congress passes bills, which the President signs. Those bills change federal law. Federal law is conveniently restated in the United States Code, which organizes the laws so that they are easy to find.

textinclass200107.jpgLaws quite often sweep broadly and are light on detail. Federal agencies, which are charged by Congress with seeing that the laws are carried out, are entitled to use procedures under the Administrative Procedure Act to adopt rules that give definition to the laws. Imagine Congress passes a law that broadcast licenses should be granted and renewed when the public interest, convenience and necessity requires it. (Actually it did, in § 307 of the Communications Act of 1934.) What the dickens does that mean? Congress delegated authority to the Federal Communications Commission to define what it means by rules adopted pursuant to the APA‘s procedures. Those rules are conveniently set out in the Code of Federal Regulations.

So, contrary to our reader’s perception, the ‘rules’ the BOP seeks to adopt should not contradict 18 U.S.C. § 3624(b)(1), but instead provide the detail needed to implement it. Rules are not laws, and – when a statute and a rule are inconsistent – a law always trumps a rule.

classisover200107Enough high school government class for now… In its Dec. 31 Notice, the BOP proposes to calculate an inmate’s “out date” at the time the sentence commences by assuming all good time will be earned (as it has always done). The actual award of the time for each year of sentence will come on the anniversary date of when the sentence started, after the BOP determines, in the words of § 3624(b)(1), that the inmate has shown “exemplary compliance” with BOP rules and policies. Practically speaking, this means the inmate received no disciplinary reports that took away good conduct time as a sanction.

The “exemplary compliance” standard is nothing new. In fact, the only changes in § 3624(b)(1) resulting from the First Step Act are that (1) prisoners earn up to 54 days of good conduct time each year of their sentences, not for each year they are actually in prison. This results in an extra seven days each year; and (2) credit for the last year of a term of imprisonment shall be given on the first day of the last year of the term of imprisonment.

threebears200107In last week’s Notice, the BOP proposed three alternatives for administering good conduct time under the changed law. The first alterative would be, because the changed statute no longer referred to a “portion of a year,” for the BOP to give no credit for the final part of a year an inmate served. The Bureau rejects this as “an erroneous and unfair interpretation” of the new law. In other words, this porridge was too hot.

The second alternative, the Bureau said, would be to interpret the new law to mean inmates get 54 days for the final part of a year, no matter how short. If a sentence were 38 months, for example, an inmate would get 54 days a year for each of the 3 years, and another 54 days for the last two months. The BOP rejected this interpretation as being too fair, because it “would result in some inmates receiving benefits incongruous with those received by others.” This porridge was too cold.

goldilocks200107The third alternative is the BOP’s Goldilocks choice, one the Bureau believes is neither too unfair nor too fair. The BOP proposes that 54 days’ good conduct time vest on each anniversary of the sentence. For the last year, however, the prorated good time would not be awarded until the last day of the sentence, so an inmate could still lose a part year’s good conduct time up to the time he or she walks out the door.

The BOP thinks this porridge is just right. However, the public may file comments agreeing or disagreeing  until March 2.

A couple of interesting factoids appear in the Notice: In the introduction to the rulemaking proposal, the BOP mentioned that the PATTERN risk and needs assessment program has not yet being adopted in final form. As well, the Bureau referred to the glacial pace of recalculating existing inmates’ sentences to add the 7 additional days of good conduct time per year each inmate was awarded by First Step:

Under section 102(b)(2) of the FSA, the recalculation of GCT credit was not effective until the Attorney General completed and released the risk and needs assessment system on July 19, 2019. Although this proposed regulation is not yet in effect, the Bureau re-calculated release dates beginning on July 19, 2019 under the statutory authority of the FSA. Based on these recalculations, 3163 inmates were released from Bureau custody on July 19, 2019; the Bureau is in the process of completing recalculations for the remainder of the inmate population based on the FSA authority, prioritizing recalculations by proximity of projected release date, and releasing inmates as appropriate according to the recalculated GCT release dates.

PB286-200107Of course, many people (your writer included) are at a loss to understand why recalculation of sentences has been such a laborious task. Certainly, even the BOP’s Packard Bell 286s ought to be able to recalculate sentences by running an algorithm that any boot-camp coder should be able to write between video games. But the bureaucracy plods on…

Good Conduct Time Under the First Step Act, 84 Federal Register 72274 (Dec. 31, 2019)

– Thomas L. Root

If They’ve Got You, They’ve Got Jurisdiction – Update for January 6, 2020

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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.

LIKE AN EARTH GIRL, JURISDICTION IS EASY

earthgirls200106We may as well begin 2020 with a cautionary tale. As I have previously written, arguing that federal courts lack subject-matter jurisdiction over a criminal case is a dead-bang loser. Yet, there is a small but persistent cohort of inmates – many of whom inhabit the prison law library – who espouse whack-a-doodle ideas about the law and, for a fee payable in items from the institution commissary – are way too willing to share them with fellow prisoners.

The 2nd Circuit underscored that last week in an opinion that expressed both patience and exasperation with a pro se whack-a-doodle appellate filing by a federal inmate.

First, a word about jurisdiction. Federal courts (except for the Supreme Court) were created by statutes passed by Congress. They are what are known as courts of limited jurisdiction. That is to say that a federal court only has the power to decide an issue that Congress has authorized it to decide. This is what is known as subject-matter jurisdiction. Your neighbor’s kid broke your window with a baseball? Try suing in federal court, and see what happens. Your case will be tossed.

froglevel200106Proceeding hand in hand with subject-matter jurisdiction is personal jurisdiction. A federal court has to have authority over the person of the defendant. If a diminutive elderly woman rams your new Bentley at the Rose Bowl, you cannot return home to Frog Level, North Carolina, and sue her in the Federal District Court for the Western District of North Carolina. There may be subject-matter jurisdiction (diversity of citizenship and sufficient damages to the Bentley, which we won’t get into), but the Little Old Lady from Pasadena has no contacts with the Western District of North Carolina. There’s no personal jurisdiction.

In the federal criminal law sphere, subject-matter jurisdiction – as I have said before – is easy. If the grand jury has indicted you for violating a federal criminal statute, a federal district court has subject-matter jurisdiction.  But, as defendant Raymond McLaughlin asked the Second Circuit, how about personal jurisdiction?

Ray’s house was in foreclosure. Rather than looking in the mirror to find someone to blame (if you don’t make your house payment, the bank forecloses and takes your house back), Ray decided it was all the state court judge’s fault. He filed documents with the IRS showing he had paid the state court judge $300,000. Of course, he had not. If he had had that kind of money, he would have made his house payments. But Ray claimed he had greased the judge’s palm, intending to get the IRS to go after the judge for failing to report income and thus to make His Honor’s life a living hell.

The scheme fell apart, and Ray was convicted of making a false statement to a government agency in violation of 18 USC § 1001.

sovereigncitizen161125Before his conviction, Ray filed a truckload of pro se motions arguing, among other things, that the district court lacked personal jurisdiction over him. Ray had bought into the “sovereign citizen” movement, which in essence believes the federal government is illegitimate and therefore that its laws are not binding. As Ray’s District Court judge observed, the “sovereign citizens” seek to “clog the wheels of justice” by raising frivolous arguments that the courts and the Constitution lack authority.

“Sovereign citizens” can, however, make a claim that hardly anyone else can. Their claims have a perfect record in federal court: none has ever won.

Neither did Ray. The 2nd Circuit explained that whenever a district court has subject-matter jurisdiction over the criminal offenses charged, it has personal jurisdiction over the defendants charged in the indictment and present before the court to answer those charges. A federal district has subject-matter jurisdiction over any indictment charging that a federal law has been broken. Therefore, it has personal jurisdiction over the defendant, no matter whether he or she walks in voluntarily or is dragged in by federal agents.

As the Circuit put it, a defendant need not “actually participate in the proceedings in order for the court to have personal jurisdiction over the defendant.”

juris170501It is pretty simple, the 2nd said. The indictment charged Ray, and Ray was present before the district court. “Accordingly, the District Court had personal jurisdiction over McLaughlin and the judgment is valid.”

Note: personal jurisdiction should not be confused with venue. The Sixth Amendment gives a defendant “the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” In other words, Ray could not have been put on trial in the District of Hawaii – no matter how much nicer the weather – for a crime that allegedly occurred in Connecticut. But “venue” is a topic for another day.

United States v. McLaughlin, 2019 U.S. App. LEXIS 38626 (2nd Cir. Dec. 30, 2019)

– Thomas L. Root

Obligatory “There’s Hope for 2020” Post – Update for January 2, 2020

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A CHANGE IN ATTITUDES – AND RHETORIC – ABOUT INCARCERATION?

annus200102Every Journalism 101 course teaches collegians who aspire to be reporters and editors that it is as obligatory to start a calendar year with a “look-ahead” story as it is to end the year with an “annus horribilis” review. Sure, a lot of writers look ahead and see only doom and gloom – after all, good news doesn’t sell newspapers (really, nothing sells newspapers anymore). But back in the day, we wrote about the next 12 months with optimism and good cheer.

I very cautiously tread into those waters today. This nation has tried to solve the crime problem by locking up the perpetrators for horrific lengths, not because research suggested that draconian sentences solved the problem but rather because such sentences made the voters feel good and secured re-election for the politicians. Seriously, when was the last time a politician lost an election by being too tough on crime?

Until now. That “lock-em-up” attitude has clearly changed in the last few years, evidence of which is Sen. Kamala Harris (D-California) quitting her presidential campaign because, among other reasons, she could not defend her record as a too-tough prosecutor.

The Hill, a publication that circulates largely among Washington DC policymakers, said last week, “After decades of failed policies and devastating consequences, Americans on both ends of the political spectrum strongly agree about the need for bold action to reform the nation’s drug and criminal justice policies.” A recent poll found that most Americans believe drug addiction should be treated more as a health problem than a criminal problem, and there is strong support for expanding programs that send people arrested for drug use to treatment instead of prison.

usaincarceration200102Americans are also starting to recognize that only by helping formerly incarcerated people and others with criminal records be more successful in their reentry will we ensure they are able to access the employment, education, housing and public benefits necessary to become contributing members of their communities.

“We have come a long way since… the “tough-on-crime” approach of the 1980s and 1990s that did little to improve safety but much to foment mistrust and misunderstanding between law enforcement and communities,” Koch Industries general counsel Mark Holden and former federal inmate Alice Johnson wrote last week in a Fox News commentary. “The good news is that, as we have seen in the last few years, momentum for action has accelerated.  The pursuit of criminal justice reform has done what some might have thought unthinkable in this bitter political environment.”

Several 2020 Democratic candidates are beginning to wrestle publicly with the question of what to do about violent offenders amid a party-wide progressive swing on criminal justice policy.

Advocates point to growing research that indicates most people “age out” of violent crime after their 20s and 30s, and to the fact that many states classify as violent some drug crimes and other offenses most Americans do not consider violent.

What to do about violent offenders is becoming part of the discussion, although still a small part. Sen. Harris, before dropping out of the race, said her administration would study “how best to hold individuals convicted of violent offenses accountable.” Her proposals noted that long sentences are not proven to be particularly effective.

massincarceration200102

The ACLU’s smart justice campaign asked candidates whether they would commit to working towards a 50% reduction in incarceration, and almost all have agreed to the target number. “We can do it more than that,” former Vice President Joe Biden said last summer. Doing so, as a simple matter of mathematics, would involve releasing people convicted of violent crimes.

I believe the consensus will lead to further legislation after the 2020 election that will probably make some of the changes in the First Step Act – such as changes in statutory maximums for drug offenses and 924(c) stacking – retroactive. Unfortunately, despite a bipartisan consensus, nothing is likely to get done in 2020, with the toxicity of an impeachment and the drama of a presidential campaign. Perhaps in 2021…

Give me two years on this prognostication, then circle back and tell me I was wrong.

The Hill, Candidates take note: Strong bipartisan consensus on criminal justice reform (Dec. 23, 2019)

The Marshall Project, Can We Fix Mass Incarceration Without Including Violent Offenders? (Dec. 12, 2019)

Fox News, Johnson and Holden: First Step Act working – now here are the next steps in criminal justice reform (Dec. 22)

– Thomas L. Root

Conviction Is Righteous But the BOP Can’t Hold Him – Update for December 31, 2019

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NOVEL MARIJUANA CLAIM CAN PROCEED ON § 2241 PETITION, 10TH CIRCUIT SAYS

Aaron Sandusky, who ran a medical marijuana farm in California, was indicted for violating 21 USC § 841. Despite the fact his operation complied with California law, he was convicted and got 120 months.

marijuanahell190918After his direct appeal was turned down, Aaron filed a habeas corpus motion under 28 USC § 2241, arguing that a congressional appropriations rider prevented the Bureau of Prisons from spending any funds to incarcerate him during the applicable time period of the appropriations rider. The district court dismissed the petition for lack of subject matter jurisdiction, concluding that the proper vehicle for Aaron’s claim was a motion under 28 USC § 2255 filed in the sentencing court.

Last week, the 10th Circuit reversed. The appeals panel held that a Sec 2241 motion is the proper vehicle for the relief that Aaron was seeking. “Section 2255 proceedings,” the Court said, “are used to collaterally attack the validity of a conviction and sentence… Federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways described by § 2255.” Petitions under § 2241, on the other hand, are used to attack the execution of a sentence.

The Circuit concluded Aaron’s petition argued that Congress enacted the appropriations rider two years after he was convicted and sentenced in federal court, and it prohibited the BOP from spending any funds to “incarcerate individuals who engage in conduct permitted by State Medical Marijuana Laws and who fully complied with such laws.” In other words, Aaron asserted, the appropriations rider “forbids the Justice Department and the BOP from expending any funds to execute his sentence” and thus, “to abide by the law,” the BOP must release him.”

felon191231Aaron argued that he was not challenging his conviction or sentence and, even if he won his § 2241 motion, he would “remain a felon in the eyes of the law, with all of the direct and collateral consequences that status imposes on his civic and professional life.” He argued that those consequences cost the government nothing, and thus were not affected by the rider. But spending to meet the cost of keeping Aaron locked up did violate the rider.

The 10th Circuit agreed. “These allegations quite clearly challenge the execution of Bill’s sentence rather than the validity of either his convictions or sentence. He was not seeking to overturn his conviction, and he did not argue his conviction was imposed in violation of the Constitution or laws of the United States. “To be sure,” the Court said, “he is seeking to be released from the BOP’s custody. But, even if his proposed interpretation of the appropriations rider should prove to be correct and he establishes his entitlement to release, Congress could always decide in future appropriation acts to modify or exclude altogether the appropriations rider. In that event, the BOP would presumably be free to incarcerate Sandusky again and require him to complete the remainder of his sentence. For these reasons, we conclude that Sandusky’s habeas petition was challenging only the execution of his sentence, and not the validity of his conviction or sentence… and… his proper avenue for relief was § 2241 and not § 2255.”

Sandusky v. Goetz, 2019 U.S. App. LEXIS 37124 (10th Cir. Dec. 16, 2019)

– Thomas L. Root

Racketeering Conspiracy Held Not to be Crime of Violence – Update for December 30, 2019

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3RD CIRCUIT FINDS A RACKETEERING CONSPIRACY IS NO CRIME OF VIOLENCE

Nelson Quinteros was being deported to his native El Salvador on the grounds that a prior criminal conviction under 18 USC § 1959(a)(6) was a crime of violence, and thus an “aggravated felony” under the immigration laws. (An aggravated felony conviction will get a non-citizen deported).

violent160620Sec. 1959(a)(6), a subsection of an offense entitled “Violent Crimes In Aid of Racketeering,” provides that whoever, for payment or to join or advance in a racketeering enterprise, “murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished… for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury…”

Sound violent? Well, yes, rather. But in the weird legal world that “crimes of violence” have inhabited since Curtis Johnson v. United States, back in 2010, sought to define what violence is, what appears to be a violent crime cannot be counted on to necessarily be a “crime of violence” under the statute.

The Board of Immigration Appeals originally held that Nelson’s § 1959(a)(6) conviction was a crime of violence under 18 USC § 16(b), a statute that defined what constituted a crime of violence under the criminal code. However, after the BIA decision on Nelson’s case, the Supreme Court in Sessions v. Dimaya threw out § 16(b) as unconstitutionally vague. That meant that the § 1959(a)(6) offense was no longer a crime of violence unless it could qualify under § 18 USC § 16(a). Last week, the 3rd Circuit ruled that Nelson’s prior conviction did not qualify as a crime of violence under that subsection, either.

violence151213Section 16(a) defines crime of violence as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, substantially the same definition used in 18 USC § 924(c) and in the Armed Career Criminal Act. “Looking at the least culpable conduct,” the Court wrote (as it must), “an individual could be convicted of conspiracy under 18 USC § 1959(a)(6) without the use, attempted use, or threatened use of physical force.” What’s more, because a § 1959(a)(6) conviction does not require that a defendant commit any overt act in furtherance of the conspiracy, the statute could conceivably punish for “evil intent alone.”

In other words, Nelson and his cronies could sit around with a few brewskis talking about how they would later commit bodily mayhem on some old lady crossing the street. That would violate § 1959(a)(6), even if later, on the way to do so, they passed a storefront church and were saved, thus abandoning their lives of sin. The conspiracy offense would still have been committed, but nowhere would they have threatened or committed an act of violence.

religion191230

Nelson’s case was about deportation, but its holding suggests that many of the statutes in Chapter 95 of the criminal code, which includes the Hobbs Act and murder-for-hire, may be vulnerable to a Mathis v. United States-type analysis in the wake of Johnson, Dimaya, and United States v. Davis.

The world of “crimes of violence” keeps getting stranger.

Quinteros v. Attorney General, 2019 U.S. App. LEXIS 37237 (3rd Cir. Dec.17, 2019)

– Thomas L. Root

First Step Act Turns a Year Old – Update for December 26, 2019

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ANOTHER YEAR OLDER AND DEEPER IN DOUBT

firststepB180814A year ago last Saturday, President Trump signed the First Step Act. A year later, I wish it was benefiting as many people in the system as hoped for by its proponents:

• First Step was intended to be just that, a first step. Follow-on legislation, S.697 (dubbed The Next Step Act), will improve prospects for job placement when people are released, is tied up in House and Senate subcommittees. With the 2020 presidential election season starting in two weeks, there is virtually no likelihood (Skopos Labs, the company that handicaps Congressional bills, gives it a 4% chance) that it will pass next year.

• First Step expanded the elderly offender home detention program enshrined in 34 USC § 60541(g)(5). This permits people over 60 years old who are nonviolent offenders to serve that last third of their sentences in home confinement. The rub is that the “two-thirds” referred to in the measure means two-thirds of the whole sentence. With good conduct time credits, a prisoner now serves only 85% of his or her sentence. It appears that no one thought carefully about it, because H.R.4018 was introduced this year to clarify things by permitting elderly offenders to go home at two-thirds of their net sentence (time to be served minus good time) instead of two-thirds of their total sentence. The measure passed the House by voice vote in October. Last week, the bill was put on the Senate Calendar of Business under general orders (the Calendar is a list of all measures, sequenced by order number, that are eligible for Senate floor consideration). Nevertheless, Skopos Labs gives the bill only an 8% chance of passage in 2020.

fairchancebanbox190906• Last week, Congress passed and the President signed the Fair Chance Act, which started life as HR 1076, but was later tucked into a massive defense spending. The bill bars the federal government and its contractors from asking about the criminal history of a job applicant prior to the extension of a conditional offer of employment.

• The Bureau of Prisons reports that so far, over 2,400 Fair Sentencing Act reductions have been granted (reducing prison time by 14,250 years), 380 elderly offender home confinement placements have been approved, 117 compassionate releases have been granted, and more than 1,700 new volunteers have been OK’d to work in institutions.

• Meanwhile, the BOP reported that Fiscal Year 2018 “cost of incarceration fee” per inmate was about $37,500 a year, which works out to about $102 a day. Multiplying this number by the FSA reduction of 14,250 years of prison time suggests that First Step’s crack retroactivity provision of has saved taxpayers around over $500 million.

• We have yet to see whether the PATTERN risk and needs analysis, proposed by the Dept. of Justice with great fanfare last July, and programming that earns prisoners additional time off sentences and in reentry programs will work as legislators hoped. Early reports have the Bureau of Prisons telling many more prisoners they are ineligible than anticipated by the bill, and warning that program credits may not be awarded for several years. Those reports – mostly from inmates and, while not confirmed, seem consistent across the system – are not encouraging.

money160118• Finally, The Sentencing Project reports that First Step’s authorization of $75 million per year – about $400 per prisoner – “falls far short of what is necessary to address the rehabilitative needs of people in prison. In July, the DOJ released data that dramatically highlighted the deficit in federal prison programming. Among the 223,000 people released from BOP custody from 2009 to 2015, 49% had not completed any programming while in custody and 57% of people in need of drug treatment had received no services.”

Reuters, Congress poised to pass bill lowering barriers to work for ex-offenders (Dec. 17)

Sentencing Project, One Year After the First Step Act: Mixed Outcomes (Dec. 17)

– Thomas L. Root

Don’t Tell Dorothy What Those Ruby Slippers Can Do – Update for December 24, 2019

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SECOND CIRCUIT NULLIFIES NULLIFICATION TALK

Jury nullification is like that crazy uncle no one ever talks about. A jury, of course, is told by the judge it must apply the law the facts that the jurors determine. But if a jury decides for whatever reason not to do that, to decide that in spite of the obvious facts and law the defendant should not be found guilty, there’s nothing the court can do about it.

ruby191224On Nov. 4, I reported on a Cleveland case where a defendant, who had just sentenced to 47 years by an Ohio judge, sucker-punched his lawyer. The courtroom security camera caught the whole thing. But when the prosecutor later tried the defendant for aggravated assault, the jury – after seeing the punch repeatedly and in slo-mo during the trial – found the defendant not guilty. That’s jury nullification.

The catch is that the law will not let a judge or the defense attorney tell the jury it has the right to find a defendant not guilty despite the law, despite the facts, or even despite what the sentence might be if the defendant is convicted. The nullification power is like Dorothy’s ruby slippers: she wore those things for the whole trip through Oz never knowing they could take her back to Kansas with three taps whenever she wanted them to.

And yet, jury nullification is as American as apple pie. This nation’s preoccupation with truth as a defense to libel – as well as with the sanctity of the jury’s determinations – first came in 1735 – when a jury rode roughshod over a biased judge in acquitting publisher John Peter Zenger of libel (yes, it was criminal at the time) against the governor of the New York colony.  The jury deliberated for all of ten minutes, probably that long because the jurors wanted to finish their tea before re-entering the courtroom.

Yehudi Manzano had a romance with a 15-year old girl. He took some cellphone video of the two of them having sex, with the girl’s consent. Ultimately, he uploaded it to his personal cloud account. No one but Yehudi and the girl ever saw the video. But in a typical example of prosecutorial overreach, Yehudi was indicted for production of child porn, which carries a 15-year mandatory minimum.

The defense asked permission to tell the jurors about the 15-year mandatory minimum and about their right of nullification. The judge agreed, saying, “This is a shocking case… that calls for jury nullification… I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government… it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure.”

zenger191224

The government filed a petition for writ of mandamus – which is an order telling a subordinate court or official to do something it has refused to do – and last week the Second Circuit gave the U.S. Attorney half a loaf. “Applying settled law in this circuit,” the Court said, “we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification.” But the Court denied mandamus on whether the defense could tell the jury about the 15-year sentence, saying, “at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.”

One judge on the panel, Barrington Parker, dissented:

This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power. Charging decisions are, of course, by and large the exclusive province of prosecutors… Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted. But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. Federal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts. They should use these powers to see that the waters of justice are not polluted and to protect the integrity of the federal courts… Whether Judge Underhill went too far is debatable. But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent..

Ohio State University law prof Doug Berman said in his Sentencing Law and Policy blog, “In the recent Haymond case, Justice Gorsuch spoke broadly about the Framers’ vision of the jury right and explained… ‘The right to a jury trial sought to preserve the people’s authority over its judicial functions.’ But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?”

United States v. Manzano (In re United States), 2019 U.S. App. LEXIS 37415 (2nd Cir. Dec 18, 2019)

Sentencing Law and Policy, Split Second Circuit panel grants feds request for mandamus to preclude a jury nullification instruction in child porn case involving 15-year mandatory minimum (Dec. 19)

Hartford Courant, U.S. appeals court rebukes federal judge in Connecticut who endorsed jury nullification in the trial of a sex offender (Dec. 18)

– Thomas L. Root

Another Circuit Finds For Fair Sentencing Act Defendant – Update for December 23, 2019

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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.

COMMON SENSE EXTENDS ITS LEAD, WITH THE CURRENT SCORE 3-0

commonsense191223The 5th Circuit last week became the third appellate court to decide that whether a defendant’s pre-2010 crack sentence qualified for reduction under the retroactive Fair Sentencing Act depended on the amount of crack cocaine alleged in the indictment, not the amount found by the court at sentencing.

Andy Jackson was charged with distributing 50 grams or more or crack. But the presentence report (PSR) found him responsible for 402 grams of crack, meaning that he exceeded even the 280-gram threshold for a minimum 10-year sentence contained in the FSA. A defendant qualifies under § 404 of the First Step Act for a reduction only if he or she had a “covered offense.”

The government’s theory was that “what counts as a covered offense necessarily turns on facts specific to the defendant’s offense, not limited to what was charged in the indictment.” In other words, if the jury convicts on a count requiring a showing of 50 or more grams, but the PSR later finds – based on whatever slipshod hearsay-heavy and evidence-light standard the court may have employed at sentencing – that 500 grams were involved, then the defendant doesn’t have a “covered offense,” since the drug quantity as stated in the PSR exceeds even the new 280-gram threshold.

crackpowder191216The 5th Circuit soundly rejected that theory:

That approach doesn’t comport with the ordinary meaning of the statute, however. As stated above, a “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA… that was committed before August 3, 2010…” Whether a defendant has a “covered offense” under § 404(a) [of the First Step Act] depends only on the statute under which he was convicted. If he was convicted of violating a statute whose penalties were modified by the Fair Sentencing Act, then he meets that aspect of a “covered offense.”

The 4th and 8th Circuits have already reached the same conclusion. No circuit has yet gone the other way.

United States v. Jackson, 2019 U.S. App. LEXIS 37126 (5th Cir., Dec. 16, 2019)

– Thomas L. Root

More Speed Bumps for Post-Conviction Speedy Trial Act Claims – Update for December 19, 2019

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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.

ANOTHER CIRCUIT QUESTIONS WHETHER SPEEDY TRIAL ACT VIOLATION SUPPORTS 2255 MOTION

The District of Columbia Circuit has become the latest in a line of courts of appeal to hold that a defendant claiming in a 28 U.S.C. § 2255 motion that his lawyer was ineffective for not raising a Speedy Trial Act issue faces a nearly impossible task of showing he was prejudiced by the error.

This guy is speedy. The STA? Not so speedy.
This guy is speedy. The STA? Not so speedy.

Juan McClendon was convicted after a marathon case lasting over four years and four separate trials. He filed a § 2255 petition complaining that his lawyer was ineffective for not filing a Speedy Trial Act motion.

If an STA motion is successful, the trial court must dismiss the indictment, but may do so with or without prejudice. “Without prejudice,” of course, means that the government is free to reindict, which it almost always does.

Juan argued that his lawyer should have raised the STA and gotten a dismissed without prejudice, because the government might not have sought a new indictment. The district court disagreed, and denied Juan’s § 2255 motion.

speedy160523Last week, the D.C. Circuit agreed, holding that “under the circumstances of this case, failure to obtain a dismissal without prejudice under the STA does not constitute Strickland prejudice. We acknowledge that a dismissal without prejudice forces the government to reindict the defendant in order to secure a conviction. We acknowledge that the government may not be willing to do so in every case, and circumstances outside of the government’s control may preclude it from doing so. McClendon’s argument does not meet that standard. He fails to recognize that it would be the exceedingly rare case in which a defendant could show a reasonable probability that, absent counsel’s failure to obtain a dismissal without prejudice, the outcome of the criminal prosecution would be different.”

The decision continues the emasculation of the STA. Five other circuits have handed down similar holdings, the 3rd, 4th, 6th, 10th and 11th.

United States v. McLendon, 2019 U.S. App. LEXIS 36522 (DC Cir. Dec. 10, 2019)

– Thomas L. Root

Hobbs Act Violence Finally Questioned, Then The Questioning Questioned – Update for December 18, 2019

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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.

GREAT HOBBS ACT DECISION, BUT NOT SO FAST…

A detailed, well-reasoned 32-page district court decision holding that a Hobbs Act offense is not a crime of violence has been appealed by the U.S. Attorney for the Northern District of California.

violence180508Two months ago, a district court ruled that the Hobbs Act was not a crime of violence in the wake of Sessions v. Dimaya and United States v. Davis, because an alternate means of committing the crime was to instill “fear of injury, immediate or future” to the person or property of a victim. Fear of future injury to property does not equate to fear of use of physical force against a person, the district court held.

This reasoning, if it spreads, could bring down Hobbs Act offenses as crimes of violence. Apparently, the government fears so, because last week, it appealed the decision to the 9th Circuit. This is not a bad development, because a circuit holding that the Hobbs Act is not a crime of violence would probably force a Supreme Court decision on the issue.

United States v. Chea, 2019 U.S. Dist. LEXIS 177651 (N.D.Cal., Oct. 2, 2019)

– Thomas L. Root