Seamy Case, Fascinating Holding – Update for November 6, 2019

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CHILD SEX CASE YIELDS FASCINATING CONSPIRACY HOLDING

pornA160829Maurice and Tonya, a couple of mutts in Oklahoma City, forced two 15-year old girls into prostitution for three weeks before law enforcement shut them down. A local businessman named Charles Anthony called the escort service the pair were using to sell the girls’ services, and he lined up a single meeting with the girls (not knowing their ages when he phoned).

When the government freed the girls and arrested Maurice and Tonya, it found records of several customers’ sordid night. Three customers, including Chuck, were indicted along with Maurice and Tonya for conspiracy to engage in sex trafficking. Chuck was convicted, and sentenced to the statutory mandatory-minimum 10 years’ imprisonment and ordered to pay restitution to the two teen-aged victims in the amount of $327,000 and $308,000.

A normal reaction to this kind of prosecution is that the defendants get whatever is coming to them. Still, that’s a pretty high price for one night, especially where Chuck did not know the girls’ ages when he lined them up.  Last week, the 10th Circuit expressed grave doubts that Chuck’s conduct, however disgusting, made him a co-conspirator in the entire venture.

Chuck’s appeal, strangely enough, focused on restitution. Last week, 10th Circuit agreed that the district court should have separated the harm Chuck’s one-night assignation with the two girls had caused from the broader harm caused by weeks and weeks of sexual slavery by the two who ran the sex trafficking ring. But the more interesting discussion, because it applies generally to criminal conspiracies, was the Court’s discussion of whether Chuck’s single night made him a co-conspirator.

childpros191107Chuck claimed a variance between the indictment, which charged him with conspiring with the two who rang the ring and two other customers to operate a child-prostitution enterprise for three weeks. Chuck argued that the evidence showed that all he did was to hire the girls for one night, and that was a subset of the larger conspiracy.

The 10th Circuit agreed. The evidence, it said, proved that for three weeks Maurice and Tonya conspired to operate a prostitution enterprise, which included two minor females. Maurice and Tonya played interdependent roles to ensure the success of the enterprise: Maurice recruited and controlled the girls, while Tonya advertised the girls’ services and connected them with customers. “The government offered no evidence,” the Circuit said, that Chuck ever joined the broad conspiracy. Instead, it proved only that Chuck and Tonya agreed to arrange a single commercial sex transaction on one night.

“The main deficiency in proof,” the Court said, “concerns the second and third conspiracy elements, i.e., knowledge of the conspiracy’s objective and knowing participation in it. To demonstrate knowing participation, the evidence must show that the defendant shared a common purpose or design with his alleged coconspirators. Though the defendant need not know the existence or identity of all conspirators or the full extent of the conspiracy, he must have a general awareness of both the scope and the objective of the enterprise to be regarded as a coconspirator.”

Here, the 10th said, nothing suggests that Chuck shared his alleged coconspirators’ purpose to operate a child-prostitution enterprise throughout October 2014. From his perspective, Chuck sought to obtain the girls from Tonya to have sex with on a single night. In fact, in its closing argument, the government described the purpose of the agreement from Chuck’s perspective as ‘having sex,’ not as running a prostitution enterprise.”

Plain error - alas, Chuck's was not.
Plain error – alas, Chuck’s was not.

The sad thing is that, had his lawyers properly preserved this issue with a timely objection at trial, Chuck could have won his conspiracy count on appeal, let alone the limited argument he made that restitution liability was not appropriate. But because they did not, Chuck could only raise the matter as plain error, and on plain-error review, he could cite no other cases that had limited restitution to a smaller conspiracy.

Nonetheless, the discussion of variances and conspiracies as subsets of larger conspiracies has great applicability to drug and white-collar conspiracies, and worth the reading.

United States v. Anthony, 2019 U.S. App. LEXIS 32605 (10th Cir. 2019)

– Thomas L. Root

Losing Defendant’s Dream-Come-True – Update for November 5, 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.

IT’S CALLED JURY NULLIFICATION

Jury nullification is that doctrine which shall never been spoken of in court. Juries can acquit anyone they want to, even when the evidence is overwhelming. The law, however, prohibits the judge or the lawyers from ever telling the jury of this power.

punchinface180423Last February, Dave Chislton sucker-punched his public defender in an Ohio courtroom after the judge sentenced Dave to 47 years in state prison for assault and arson. The punch, which broke public defender Aaron Brocker’s nose and gave him a concussion, was recorded on a deputy’s bodycam and was witnessed by a courtroom full of lawyers.

The State indicted Dave for felonious assault, but – despite all of the evidence – Dave took it to trial.

Last week, the jury nullified. There is no other description for it. Despite the video and the witnesses, Dave was acquitted. Apparently, the jury just didn’t blame him for the sucker punch.

Dave reportedly applauded the jurors and hooted at his former lawyer as he was led out of the courtroom by deputies.

Cleveland, Ohio, Plain Dealer, Man who sucker-punched attorney in the face during Cleveland court hearing found not guilty, Oct. 25, 2019

– Thomas L. Root

Judge Is Too Close to US Attorney; Defendant Wins Resentencing – Update for November 4, 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.

THE JUDGE IN THE TOWN’S GOT BLOODSTAINS ON HIS HANDS…

If you remember “The Night The Lights Went Out in Georgia,” you’re too old. But old or not, you have probably run into a federal judge who once was a government attorney. They account for something like 71% of all federal judges.


roybean191105Most all judges can check their prejudices at the door, but there are always exceptions. One is Judge Colin S. Bruce of the Central District of Illinois, who last year was unmasked by a local newspaper’s revelation that he was holding “extensive” private (called “ex parte”) communications with the U.S. Attorney’s Office about pending cases. An example: the newspaper published emails between Judge Bruce and a paralegal in the USAO about a criminal trial over which Judge Bruce presided, in which he complained that a novice prosecutor’s weak cross-examination had turned the case “from a slam-dunk for the prosecution to about a 60-40 for the defendant…”

After the story broke last year, the Chief District Judge removed Bruce from federal criminal cases. The 7th Circuit Judicial Council heard several complaints about the Judge, and admonished him for his misconduct. Only in the last two months ago has the Bruce resumed hearing criminal cases.

Jim Atwood, to whom Judge Bruce had already handed a 210-month sentence in a drug case, was on appeal when the story came out. Although the Judge had not communicated with the US Attorney about Jim’s case, he had communicated during the time about many others. Jim argued that in light of Judge Bruce’s conduct, the federal recusal statute entitles him to resentencing by a different judge. Last week the 7th Circuit agreed.

Title 28 USC, Sec 455(a), requires a judge to recuse himself from “any proceeding in which his impartiality might reasonably be questioned.” The Circuit considered three factors: (1) the risk of injustice to the parties in this case, (2) the risk of injustice to parties in future cases, and (3) the risk of undermining public confidence in the judicial process.

Under the first factor, the Circuit considered “the potential unfairness to Atwood of upholding his sentence. Judge Bruce calculated the sentence based on the factors outlined in 18 USC 3553(a). As we have said before, the open-endedness of the 3553(a) factors leaves ample room for the court’s discretion. That discretion invites the risk that a judge’s personal biases will influence or appear to influence the sentence he imposes… Upholding Atwood’s sentence, then, creates a real risk of unfairness to him.” Conversely, a resentencing would impose very little cost on the government.

As for the second factor, the Circuit said, enforcing § 455(a) in this case “may prevent a substantive injustice in some future case” by encouraging judges to exercise caution in their communications.

badjudge160502Finally, the appellate court said, “we consider the risk of harm to the public’s confidence in the impartiality of the judiciary. In sentencing, the most significant restriction on a judge’s ample discretion is the judge’s own sense of equity and good judgment. When those qualities appear to be compromised, the public has little reason to trust the integrity of the resulting sentence.”

As a consequence of his email experience, Judge Bruce no longer entertains unofficial inquiries from either prosecution or defense lawyers. He requires all communication to be through written motions. He also has terminated his in-court contacts with a number of parties to the email dispute, including federal prosecutors and federal public defenders. His response may seem petulant, but it would seem he’s already shown his stripes. Woe betide any federal criminal defendant in his courtroom: there would appear to be two prosecutors, one defense attorney, and no judge.

Champaign, Illinois, News-Gazette, Urbana federal judge’s email transgression still making waves (Oct. 29)

United States v. Atwood, 2019 U.S. App. LEXIS 31826 (7th Cir. Oct. 24, 2019)

– Thomas L. Root

Futile Arguments of the Week – Update for October 31, 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.

CAPTAIN OBVIOUS

obvious191031Two cases decided last week serve as reminders that some arguments are so obviously futile as to constitute a waste of everyone’s time.

Anthony Shockey violated supervised release by using methamphetamine. Use of a controlled substance is a Grade C violation, but new criminal conduct is a Grade B or A violation. His probation officer charged him with possession of meth, a violation of state law. Tony argued to the judge that he had not possessed the meth, just used it.

Guess how that turned out.

burger191031The district court found a Grade B violation, and imposed a prison term. On appeal, Tony Shockey contended that his use of meth did not require a finding that he also possessed it. The 7th Circuit would entertain none of that. “The district court reasonably could infer possession from use,” the Circuit said. “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.”

Meanwhile, in the Western District of New York, George Moses had a proffer deal with the government. The government says that he lied through his teeth, so much so that it obtained a superseding indictment accusing him of making false statements to federal agents.

George moved to dismiss the new counts, arguing that the proffer agreement was ambiguous about whether the government could prosecute him for any lies he told, and the ambiguity should be resolved in his favor. Last week, the district court refused to throw out the counts.

The Court noted that in the proffer agreement, George had “agreed to provide complete and truthful information regarding any and all criminal matters of which the witness may have knowledge.” Under the agreement, the government could demand George take a polygraph. And paragraph 5 provided that while the information he provided could not be used against him, “any statements… provided by the witness may be used against the witness in a prosecution for perjury, making false statements or obstruction of justice.”

liar151213The district court said that plainly, the parties’ intention gleaned from the the proffer agreement was that George would tell the truth during the proffer session. “The agreement repeatedly makes it clear that Defendant must be truthful at the proffer session,” the district judge wrote. “That was the bargain struck by the parties. To interpret the agreement in the manner urged by Defendant would constitute a tortured reading of the proffer agreement that would ultimately permit Defendant to lie with impunity at the proffer session in direct contravention of the purpose of the agreement.”
Yeah, that was pretty obvious.

United States v. Shockey, 2019 U.S. App. LEXIS 31474 (7th Cir. Oct. 22, 2019)

United States v. Moses, 2019 U.S. Dist. LEXIS 181823 (WDNY Oct. 21, 2019)

– Thomas L. Root

2255 Remand Entitled to Full Resentencing – Update for October 30, 2019

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OWN YOUR MISTAKE

It is gratifying to see a court admit that it screwed the pooch.

goofed191029Larry Flack pled guilty to two counts. Later, he filed a §2255 motion, he argued that a conviction for receipt of child porn and for a separate count of possession of child porn violated the 5th Amendment’s prohibition against double jeopardy. The district court denied him, but the 6th Circuit granted Larry’s motion on appeal. The Circuit issued a “general remand” order, with instructions to the district court to vacate one of the convictions. The remand order gave “the district court discretionary authority over which of Flack’s convictions to vacate and whether to conduct a resentencing hearing.”

The district court did just that, vacating Larry’s possession conviction but imposing the same 262-month sentence. In its order, the district court said it “need not conduct a resentencing hearing” because its previous sentence “properly accounted” for the sentencing factors listed in 18 USC § 3553. Larry appealed, arguing the district court abused its discretion by denying him a full resentencing hearing.

sentence170511Last week, the 6th Circuit agreed. “We have previously held,” the Circuit said, “albeit on direct review, that upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.” Larry’s case was one of collateral review, the Court admitted, not direct review, “but the point of that decision is that a sentencing is sentencing, regardless of the docket entries that precede it. And a sentencing must occur in open court with the defendant present.”

The 6th admitted that “in this case the district court’s error was one that this court invited… The reason why the district court did not hold a resentencing hearing, in all likelihood, is that our remand order seemed to suggest that the court did not need to. But on this record that suggestion was mistaken.” The Court vacated Larry’s sentence and remanded for him to be resentenced pursuant to a sentencing hearing.

United States v. Flack, 2019 U.S. App. LEXIS 31573 (6th Cir. Oct. 23, 2019)

– Thomas L. Root

First Step Touted While Good-Time Adjustments Languish – Update for October 29, 2019

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FIRST STEP: TRUMP FIDDLES WHILE BOP BURNS

angrytrump191003President Donald Trump touted the First Step Act in a speech last Friday at the 2019 Second Step Presidential Justice Forum in South Carolina, talking about how the Act helped African Americans by releasing thousands of non-violent offenders to gain early release from federal prison.

“In America, you’re innocent until proven guilty and we don’t have investigations in search of that crime,” he said while accepting an award at historically black Benedict College for his role in passage of First Step.  “Justice, fairness and due process are core tenets of our democracy. These are timeless principles I will faithfully uphold as president.”

Much of what was said at the conference was overshadowed by Democratic presidential hopeful Sen. Kamala Harris (D-California), who refused to attend the conference because Trump was included on the list of speakers. Harris, whose record as a take-no-prisoners prosecutor has caused some to be skeptical of her 11th-hour conversion to the cause of criminal justice, flip-flopped on the boycott threat and agreed to show after all, after winning a window-dressing removal of one of the sponsors for its sin of giving an award to Trump.

During the hour-long address, Trump called on several people who had been released from prison under the First Step Act to the stage to offer testimonials.

Many of Trump’s Democratic presidential rivals spoke over the weekend, and took turns slamming Trump. Sen. Cory Booker, D-New Jersey, argued, “The fact of the matter is Donald Trump was given an award for the 10 seconds it took him to sign a bill into law that contradicts every one of his instincts and history of promoting racist criminal justice policies.”

I’m no Trump fan, but Sen. Booker needs to be fact-checked on this assertion.

All was not bliss for implementation of First Step last week. Filter magazine, launched in September 2018 to advocate for rational and compassionate approaches to drug use, drug policy and human rights, blasted the Bureau of Prisons for its “incompetent” application of the star-crossed additional 7 days-a-year good time.

Citing long-time prisoners who would be camp-eligible if they were granted the additional good time to which they are entitled, Filter said that due to “a potential failure, attributable to administrative inadequacy, to apply a much-anticipated reform to… federal prisoners until over a year after it was supposed to be implemented in July 2019.

screwup191028

Filter reported that as of September 16th, the Designation and Sentence Computation Center “had made First Step Act updates only for incarcerated people with previously projected release dates that fell before October 2020.” The magazine quoted a response to an August 22 administrative remedy request for recalculation filed by an anonymous inmate, in which the BOP gave no clear date for when the inmate could expect an updated GCT calculation, only explaining their prioritization of projected release dates and stating that “there may be some variance in the speed with each DSCC team completes the recalculations for the inmates assigned to them.” The BOP said “this process may take up to a year.”

A BOP official told Filter that implementing the change in good time is “complex” due to the “various federal statutes and BOP policy” with which recalculations must be “carried out in accordance.”

The BOP’s information technology systems are “dinosaurs,” Kara Gotsch, the director of strategic initiatives for The Sentencing Project, told Filter, citing explanations she’s heard from BOP staffers. Gotsch said that even this description “is generous,” adding that “it’s like they don’t have the right kind of computer” to perform the recalculations in time.

The BOP denied this claim, calling Gotsch’s explanation “speculation based on hearsay,” and added that “the computers and technology utilized by our staff are not outdated and incompetent. They use commercially-available and fully-supported technology.

Speculation it may be, but the BOP has known since last Christmas it would have to recalculate inmate good time. It’s failure to get the process in place, which would require  the use of a simple formula that any high school math geek could write with a Texas Instruments nine-buck calculator, is equally explainable as institutional arrogance or institutional incompetence.

The Columbia, South Carolina, State, Trump’s Columbia visit wraps with praise of HBCUs and reform, peaceful demonstrations (Oct. 26)

Filter, The Consequences of an Incompetent First Step Act Rollout (Oct. 15)

– Thomas L. Root

Lack of Subject-Matter Jurisdiction is Largely a Myth – Update for October 28, 2019

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SUBJECT MATTER JURISDICTION AIN’T WHAT YOU THINK

drytoast191028Over 25 plus years of post-conviction work, I can’t count the number of inmate-written post-conviction motions I have seen claiming that a district court lacked subject-matter jurisdiction over their cases. What I can count is the number of times the claim has worked. That would be zero.

Subject-matter jurisdiction is a pretty dry topic, but it is a basic concept that should be understood by your basic high school government class student. Other than the Supreme Court, which was established in the Constitution, all federal courts are creatures of statute. That is to say, those lower courts exist only because Congress passed a law saying they exist. Congress could eradicate everything from the courts of appeal down to federal magistrate judges (who aren’t really judges, but that is a matter for another day) simply by passing a law doing so. Of course, the President would have to sign, but given the fits federal judges have given Mr. Trump in enjoining many of his prized initiatives, it’s a safe bet he’d find his pen real fast.

Because lower federal courts are creatures of statute, Congress is allowed to dictate what issues they may hear and not hear. That’s called subject-matter jurisdiction. This much-abused concept arises often in civil suits, and occasionally in post-conviction matters. But as a matter of a criminal conviction, subject-matter jurisdiction is easy and straightforward. The question boils down to this: Is the defendant accused of violating a federal criminal statute? If, yes, the district court has subject-matter jurisdiction under 18 USC § 3231. If no, the district court may not.

Most defendants raising subject-matter jurisdiction claim some defect is jurisdictional when it isn’t. The First Circuit reminded Daniel Carpenter of that last week. Dan had been sentenced and filed a notice of appeal. While the appeal was pending, the district court issued a forfeiture order. Dan argued that because he had filed his notice of appeal, the district court lacked subject-matter jurisdiction to issue any further orders in his case.

buttercup191028The 1st said Dan’s “use of the term ‘subject matter jurisdiction’ is a misnomer here.” While he may not have known it, Dan was really relying on what is known as the “appellate divestiture” rule. That rule holds that the filing of a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal,” but it does “not divest the district court of all authority.”

The appellate divestiture rule is not jurisdictional, the Circuit said. Rather, it “is rooted in concerns of judicial economy, crafted by courts to avoid the confusion and inefficiency that would inevitably result if two courts at the same time handled the same issues in the same case. Application of the divestiture rule is not mandatory and efficiency concerns are central to determining whether we should apply it here.”

In this case, the district court said at sentencing that a forfeiture proceeding would be held later. Thus, the Circuit said, “forfeiture was a certainty; the only question was the amount.” Because there would be no point to a remand, inasmuch as the forfeiture order had issued, the divestiture rule did not block the forfeiture order.

United States v. Carpenter, 2019 U.S. App. LEXIS 31113 (1st Cir. Oct 18, 2019)

– Thomas L. Root

Cops’ Crooked Pasts Not Disclosed to Defense Attorneys (Gasp!) – Update for October 24, 2019

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NEWSPAPER SHOCKED TO DISCOVER DISHONEST COPS GET PEOPLE LOCKED UP

Under Brady v. Maryland, prosecutors must tell anyone accused of a crime about all evidence that might help their defense. That includes sharing details about police officers who commit crimes, lie on the job or whose honesty has been called into doubt.

A USA TODAY investigation reported last week that widespread failure by police departments and prosecutors to track problem officers makes it impossible to disclose information to people whose freedom hinges on the integrity of law enforcement. Reporters and the Chicago-based Invisible Institute spent more than a year gathering “Brady lists” from police and prosecutors in thousands of counties to measure compliance with the ruling.

shocked191024The report found that thousands of people have faced criminal charges or gone to prison based in part on testimony from law enforcement officers deemed to have credibility problems by their bosses or by prosecutors. At least 300 prosecutors’ offices are not taking steps necessary to comply with the Supreme Court mandates. These places do not have a list tracking dishonest or otherwise untrustworthy officers. In many places that keep lists, police and prosecutors refuse to make them public, making it impossible to know whether they are following the law.

USA TODAY identified at least 1,200 officers with proven histories of lying and other serious misconduct who had not been flagged by prosecutors. Of those officers, 261 were specifically disciplined for dishonesty on the job.

USA Today, Hundreds of police officers have been labeled liars. Some still help send people to prison (Oct. 17)

– Thomas L. Root

District Court Weighs in on Post-Davis “Attempt” Crime – Update for October 23, 2019

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EDNY DISTRICT COURT SAYS ATTEMPTED HOBBS ACT ROBBERY IS CRIME OF VIOLENCE

Last June’s Supreme Court United States v. Davis decision held that conspiracy to commit a violent crime is not itself a crime of violence. That has raised the obvious question of whether an attempt to commit a violent crime is itself a violent crime.

Robber160229Two weeks ago, an Eastern District of New York court said it was. A defendant had moved to dismiss an 18 USC § 924(c) count on the grounds that the underlying offense, attempted Hobbs Act robbery, was not a crime a violence after the Davis decision. The district court disagreed:

A completed Hobbs Act robbery itself qualifies as a crime of violence under 924(c)(3)(A) and, therefore, attempt to commit Hobbs Act robbery requires that the defendant intended to commit every element of Hobbs Act robbery, including the taking of property in a forcible manner. The definition of a crime of violence in 924(c)(3)(A) equates the use of force with attempted force, and thus the text of 924(c)(3)(A) makes clear that actual force need not be used for a crime to qualify under 924(c)(3)(A). Thus… given 924(c)’s ‘statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime,’ attempted Hobbs Act robbery qualifies as a crime of violence under 924(c)(3)(A) as well.

The decision, which is rather thinly justified, is hardly the last word on the issue.

United States v. Jefferys, 2019 U.S. Dist. LEXIS 177234 (EDNY, Oct. 11, 2019).

– Thomas L. Root

What’s Old Is New Again As 5th Circuit Reverses Herrold – Update for October 22, 2019

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5TH CIRCUIT UNDOES HERROLD DECISION

A lot of people were jubilant last year when the 5th Circuit reversed its long-standing United States v. Uribe decision, and held that Texas burglary was no longer a generic burglary under the Armed Career Criminal Act. If you were benefitted by the decision, we hope you got your petition in fast, because last week, the Circuit reversed course yet again.

rollercoaster191022The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.

On remand after the en banc decision, the district court sentenced Mike to time served. Meanwhile, the government filed a petition for certiorari. Two intervening Supreme Court decisions, Quarles v. United States and United States v. Stitt, foreclosed the two principal grounds on which Mike had contested his ACCA sentencing enhancement, so the Supreme Court sent the case back to the Circuit again.

texasburglary191022Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”

United States v. Herrold, 2019 U.S. App. LEXIS 31139 (5th Cir. Oct. 18, 2019)
– Thomas L. Root