He Might Have Known About the Felon-Gun Thing – Update for September 13, 2019

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SOME THINGS PROVE THEMSELVES

resipsa190913There’s a doctrine we all had to learn in first-year law school torts class known as “res ipsa loquitur.” That’s Latin (which the law uses a lot because when things are obscure, you can charge clients more when you have to explain them), and translates as “the thing speaks for itself.”

In last June’s Rehaif v. United States decision, the Supreme Court explained the elements that the government has to prove for a felon-in-possession conviction under 18 USC § 922(g)(1), elements which everyone had been getting wrong for years. Samir Benamor was on direct appeal of his felon-in-possession conviction when he raised the Rehaif argument, maintaining that the government had not proven that he knew he was a felon prohibited from possessing firearms.

Because Sammy had not raised the issue in the trial court, the 9th Circuit ruled he had to show plain error under Federal Rule of Criminal Procedure 52(b). I seriously doubt the Circuit was right about applying Rule 52(b), but it did, and it concluded that Sam was out of luck.

There was no doubt that the district court plainly erred by not instructing the jury that it had to find that Sammy knew he was a felon ineligible to possess a firearm. But the “plain error” standard also requires proof that but for the error, the outcome of the proceeding would have been different. One of Sammy’s priors was for being a felon in possession of a gun. The Court sort of thought that that conviction spoke for itself.

gunb160201The 9th Circuit said, “At a minimum, the prior conviction for being a felon in possession of a firearm proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

Yeah, you’d think that having been convicted of being a felon in possession of a gun once before would have alerted Sammy that he was a convicted felon prohibited from having a gun. As the law might say, that “res” probably “ipsa loquiturs.”

United States v. Benamor, 2019 U.S. App. LEXIS 26793 (9th Cir. Sept. 5, 2019)

– Thomas L. Root

4th Circuit Strikes Blow Against Lousy Prison Medical Care – Update for September 12, 2019

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4TH CIRCUIT HOLDS OFFICIAL’S KNOWLEDGE OF POLICIES AND DENIAL OF GRIEVANCES CAN ESTABLISH 8th AMENDMENT DELIBERATE INDIFFERENCE

hepc190912The 4th Circuit handed down a fascinating 8th Amendment opinion last week that established a prison’s obligation to treat hepatitis C, as well as expanding on the universe of officials subject to 8th Amendment claims.

For those of you who dozed through high school government class, the 8th Amendment prohibits cruel and unusual punishment. The Courts have defined that over the years to include the deliberate indifference of prison officials to serious medical needs of inmates.

Carl Gordon, a Virginia state inmate, had hepatitis C. The Virginia prison system had a policy of not treating hep C in people eligible for parole or close to the door, purportedly because they might leave in the middle of treatment, which posed a risk to their health. Carl was eligible for discretionary parole in 2008, despite the fact his actual “out” date was in 2028, 20 years later. He repeatedly filed administrative grievances demanding treatment for hepatitis C and warning of the deadly effects of the disease if left untreated.

The prison health director, who was familiar with the Virginia policy on hep C treatment, kept denying Carl’s grievances, telling Carl simply to go to sick call (despite the fact the director knew that at sick call, Carl would be refused hep C treatment because of the policy).

Finally, this “dog chasing its tail” saga reached federal court.

dogtail190912“By the very nature of the health director’s position,” the Circuit said, “he was personally involved in reviewing and enforcing the policy that prevented Carl Gordon from receiving HCV treatment… And the health director’s consistent failure to revise the Guidelines to remove the parole-eligibility exclusion constitutes personal involvement in the denial of HCV treatment for Gordon… it is inconsistent with the 8th Amendment for a prison official to withhold treatment from an inmate who suffers from a serious, chronic disease until the inmate’s condition significantly deteriorates.”

Gordon v. Schilling, 2019 U.S. App. LEXIS 26676 (4th Cir. Sept. 4, 2019)

– Thomas L. Root

Spray Paint and Violence – What is Physical Force Against Property? – Update for September 11, 2019

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10TH CIRCUIT ADDRESSES WHEN FORCE AGAINST PROPERTY IS VIOLENT

giphyOne twist in 18 USC § 924(c)’s definition of “crime of violence” is that, unlike 18 USC § 16(b) or the Armed Career Criminal Act, the use of physical force under § 924(c) can be either against a person or his property. For a offense to be a “crime of violence,” it must require violent physical force. But when is force against someone’s property “violent physical force?”

Aaron Bowen was convicted of witness intimidation and brandishing a gun while doing so, in violation of 18 USC § 924. The witness intimidation statute, 18 USC § 1513, required that one retaliate against a witness by causing bodily injury to a person or by damaging the person’s property. Aaron filed a post-conviction motion under 28 USC § 2255 arguing that after Johnson and Davis, witness intimidation was not a crime of violence, and cannot support a § 924(c) conviction.

Last week, the 10th Circuit agreed. It first joined other circuits in holding that Davis is retroactive for § 2255 purposes. Because Davis declared § 924(c)’s residual clause unconstitutional, Aaron’s witness intimidation conviction could only support a § 924(c) conviction if it required violent physical force against a person or property.

paintcar190911

The 10th concluded that one could damage property without using violent physical force. It suggested, for example, that “although spray-painting another’s car damages that person’s property, we cannot conclude that the mere fact that it damages property means that it requires ‘violent force’.” Because the statute was not divisible between injuring people and damaging property, and because damaging property does not require violent force, the statute is not a crime of violence. Thus, Aaron’s § 924(c) conviction was thrown out.

United States v. Bowen, 2019 U.S. App. LEXIS 26554 (10th Cir. Sept. 3, 2019)

– Thomas L. Root

SCOTUS Being Asked to Review Access to Grand Jury Transcripts – Update for September 10, 2019

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ACCESS TO GRAND JURY RECORDS ISSUE BEING URGED AT SUPREME COURT

grandjury190911In an April 8, 2019, post, I reported on a U.S. Court of Appeals for the District of Columbia Circuit decision denying some 60-year old grand jury records sought by historian Stuart McKeever for a book he was writing. His request did not fit any of the reasons for disclosure specified in Federal Rule of Criminal Procedure 6(e)(2)(B), but Stuart argued that beyond the limitations of the rule, the district court had “inherent authority” to disclose historically significant grand jury matters. The district court agreed, but the D.C. Circuit reversed.

Last week, Stuart filed a petition for writ of certiorari with the Supreme Court, represented by the D.C. office of big-law firm Latham & Watkins. What makes the petition likelier to be granted is interest already being shown by the House Judiciary Committee, which is fighting to see the grand jury transcripts from the Mueller investigation by advancing the same argument. Like Stuart McKeever, the House demand for records cannot be pigeon-holed into any permissible use subsection of F.R.Crim.P. 6(e)(2)(B). So, like Stuart, the Judiciary Committee is arguing that the court had the inherent authority to release the records.

A Supreme Court decision finding that courts had inherent authority to release grand jury records could benefit inmates seeking grand jury records for post-conviction proceedings. A decision on the petition for certiorari will not come until late this year.

McKeever v. Barr, Case No. 19-307 (Supreme Court, filed Sept. 5, 2019)

National Law Journal, Justices Could Decide If Judges Have Power to Release Grand Jury Records (Sept. 6)

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 2019

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6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root

Nothin’ Happenin’ Here – Update for September 6, 2019

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NO FAIR CHANCE FOR FAIR CHANCE ACT


nothinghere190906Those of us who have recently had the Grim Reaper knock on the door – or at least, received notice of our mortality in the form of a Medicare card arriving in the mail – remember Buffalo Springfield, a drug-addled band named for an obscure brand of steamroller. The band’s only real chart-topper was a 1967 protest song, “For What It’s Worth.” As I recall it (to the extent I recall anything at all from the ’60s), the song began, “Somethin’s happening’ here…”

Inmate readers ask regularly me what legislation or Sentencing Guidelines changes are in the Washington, D.C., pipeline to benefit people with gun cases or career offenders or white-collar defendants or people with sex cases… You name the offense, and you can be sure there are some hopefuls out there in the Bureau of Prisons population.

My answer to them is short and painful: Nothin’s happening’ here. Or there. Or anywhere. No Guidelines amendments on November 1st this year, no legislation with a ghost of a chance of passage in this two-year session of Congress. Nothin’.

The Democrats don’t want to pass anything the Republicans want, the Republicans don’t want to pass anything the Dems want. With the 2020 election only 14 months away, nothing is going to get done.

nothing190906

And as far as the Guidelines go, nothing will come out of the Sentencing Commission until the President decides to use his marker pen to write down the names of appointees instead of phantom hurricane paths. The Sentencing Commission has needed at least two more members, enough to make a quorum, since last December. Without the quorum, the USSC has been unable to vote on anything for the past nine months, including amendments to the Guidelines.

And there are no nominations on the horizon.

fairchancebanbox190906The only legislation even getting media interest is the Fair Chance Act, which curiously enough was introduced by Rep. Elijah Cummings (D-Maryland) but has broad conservative support (including that of the President, who recently has engaged in a Twitter war with Cummings). Fair Chance would prevent the federal government and federal contractors from conducting a criminal background check or otherwise inquiring about an applicant’s criminal record until such time as a conditional job offer is extended. Once an offer is made, the employer can then conduct the criminal background check as needed.

No question the legislation is needed. A 2009 study by Princeton and Harvard researchers indicated that those who indicate they have a criminal record are 50% less likely to receive a callback than those who do not check the box.

But needed or not, Fair Chance – like any other criminal justice reform legislation – has no fair chance until 2021.

The Daily Signal, A Bill to Give Former Inmates a Second Chance (Aug. 26)

– Thomas L. Root

No Vacation for the Courts: Davis and Johnson Decisions Abound – Update for September 5, 2019

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THE DAVIS REPORT – AND A JOHNSON ‘CAREER OFFENDER’ DECISION


vacation190905Last week, typically the final slow week of summer, as vacationers return for a new school year and dreary office, was uncharacteristically busy for application of last June’s Supreme Court United States v. Davis decision.

In United States v. Barrett, the 2nd Circuit reluctantly held that a Hobbs Act conspiracy was not a crime of violence in light of Davis, despite the “murderous” nature of the particular conspiracy. For that reason, one of the defendant’s four § 924(c) convictions (for using a gun in a crime of violence) – the one related to the Hobbs Act conspiracy – was vacated. The Court sighed, “If there is anything Davis makes clear, it is the Supreme Court’s conviction that the substantially similar residual clause definitions for a violent crime in the Armed Career Criminal Act, in § 16(b), and in § 924(c)(3)(B) are unconstitutionally vague, and its aversion to new arguments that attempt to avoid that conclusion.”

In the 6th Circuit’s Knight v. United States decision, one of the defendant’s § 924(c) conviction was vacated because it was based on use of a gun during a kidnapping, but another based on assault and robbery of a postal employee under 18 USC § 2114 was held to require the use or threat of physical force. Thus, it is a crime of violence that supported the § 924(c) conviction.

Robber160229In United States v. Pervis, the 5th Circuit held that garden-variety bank robbery under 18 USC 2113(a) is a crime of violence under the § 924(c) “elements” test, and therefore supported the defendants’ multiple § 924(c) convictions.

The 5th Circuit also handed down a disappointing holding that an inmate found to be a career offender under the old mandatory Guidelines could not file a second-or-successive § 2255 motion to challenge the “career offender” status because of the Supreme Court’s 2015 Johnson v. United States holding. Bobbie London was convicted in 1996 of drug offenses and sentenced to 327 months as a Guidelines career offender. One of the prior convictions making him a career offender clearly no longer counts after Johnson.

vagueness160110Under Beckles v. United States, Bobbie would clearly not be entitled to relief if his sentence had been imposed under the advisory Guidelines. But he was sentenced nine years before United States v. Booker invalidated the mandatory Guidelines, so the judge had no choice but to hang the 327 months on him. Bobbie argued that a sentence determined by the vague language of the pre-Booker career offender residual clause violates due process.

The Circuit disagreed:

This asserted right, we think, is not dictated by Johnson; London’s assertion is more properly described as a “new right” to the extent that it is a right that has not yet been recognized by the Supreme Court. The Supreme Court has yet to decide whether a vagueness challenge can be raised under the pre-Booker Sentencing Guidelines. Instead, the Court’s decisions up until this point evince a distinction between statutes that fix sentences and Guidelines that attempt to constrain the discretion of sentencing judges…

In short, it is debatable whether the right recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an administrative regime that governs a judge’s discretion to a range within the statutory minimum and maximum sentences. Consequently, London does not assert a right dictated by Johnson but instead asserts a right that would extend, as opposed to apply, Johnson to the pre-Booker Guidelines. His claim is therefore not entitled to the benefit of a new statute of limitations.”

United States v. Barrett, Case No. 14-2641-cr (2nd Cir. Aug. 30, 2019)

Knight v. United States, Case No. 17-6370 (6th Cir. Aug. 27, 2019)

United States v. Pervis, Case No. 17-20689 (5th Cir. Aug. 30, 2019)

London v. United States, Case No. 17-30675 (5th Cir. Aug. 29, 2019)

– Thomas L. Root

Rethinking Clemency with First Step – Update for September 4, 2019

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MORE CALLS TO USE THE FIRST STEP ACT TO END-RUN CLEMENCY

hamilton190904Over 11,400 commutation petitions languish at the Justice Dept.’s Office of the Pardon Attorney, record numbers for a clemency system that America’s founding fathers designed to be, in the words of Alexander Hamilton, “as little as possible fettered or embarrassed.”

An article published last week by Law 360 detailed the precipitous decline in use of federal clemency over the past 150 years, and suggested enhanced use of the sentence-reduction procedure changes in the First Step Act.

DOJ involvement in clemency began during the Civil War, because President Lincoln was overwhelmed by personal visits from “crying mothers and wives of disgraced soldiers” pleading for pardons. By 1898, all clemency petitions were routed through DOJ before maybe getting to the White House. Still, until about 50 years ago, presidents generally granted 13% to 40% of petitions.

Since then, the numbers have fallen to the single digits until President Obama. His 2014 clemency initiative was a public relations victory but a bureaucratic disaster, generating more commutation petitions in a year than OPA had received in the previous 24 years combined.

Despite granting over 1,700 commutations, Obama hardly made a dent in the overall prison population, “There could have easily been 20,000 commutations,” former OPA attorney Sam Morison argued. “That would have been about 10% of the prison population. That would have been historic.” But as it is, Obama left office with over 11,350 commutation petitions still pending.

kardashian190904Morison argues that the clemency power “will never function correctly until that Office of the Pardon Attorney is out of the Department of Justice.” While President Trump’s administration has been studying that idea, nothing has come of the White House roundtable group that has been meeting on the proposal for more than a year. Georgetown University law professor Shon Hopwood, noting Trump’s widely publicized pardons and commutations, said many petitioners will inevitably try “going around the system,” but “it shouldn’t require Kim Kardashian’s assistance to get clemency.”

Hopwood instead has been citing the First Step Act’s expansion of compassionate release as a more accessible option. I have been writing about this sleeper of a sentence-reduction provision for six months (see “Will First Step Let the Holloway Black Swan Swim Again?” Update for March 26, 2019). Such releases are traditionally available only to the elderly and terminally ill, but the statute – 18 USC 3582(c)(1)(A)(i) – says nothing about illness as such. Instead, it simply permits sentence reduction based on “an extraordinary and compelling reason.”

Under the First Step Act, a defendant no longer needs approval of the Bureau of Prisons to file a motion for resentencing with his or her sentencing court.

In a forthcoming law review article, Hopwood writes that judges can consider any “extraordinary” reasons for compassionate release without having to wait for BOP approval. Former US Pardon Attorney Margaret Love calls the concept a “hidden, magical trapdoor in the First Step Act that has yet to come to everyone’s attention. This has obviated the need for the clemency process to take care of the great majority of commutation cases.”

clemencybacklog190904

Hopwood acknowledges that prosecutors are likely to oppose these motions, but said they could provide a safety valve in which the judiciary simultaneously helps alleviate mass incarceration and the OPA’s commutation workload. And, unsurprisingly, DOJ has argued against Hopwood’s interpretation. In a filing last January, the government said the compassionate release statute “is simply not an avenue by which defendant can secure relief from his sentence based on his post-conviction reform… The relief defendant seeks is instead properly addressed in a petition to the executive branch for clemency.”

Lots of luck with that, the authors write. “The odds of getting presidential relief are approaching zero. The office that granted 41% of all pending and newly filed clemency petitions in 1920 is on track to grant less than 0.1% under Trump…”

Law360.com, How Courts Could Ease The White House’s Clemency Backlog (Aug. 25)

Sentencing Law and Policy, Exploring how compassionate release after FIRST STEP might indirectly help with persistent federal clemency problems (Aug. 26)
– Thomas L. Root

10th Circuit Says Right to § 2255 Hearing Just Requires Solid Claim, Not An Overwhelming Proof – Update for September 3, 2019

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SAYIN’ IT DON’T MAKE IT SO

aintso190903Over 50 years ago, the Supreme Court made it clear in Machibroda v. United States that a hearing should be held whenever a post-conviction motion under 28 USC § 2255 does not “conclusively show that the prisoner is entitled to no relief.”

Yet, § 2255 more than a half century later, hearings remain as rare as hen’s teeth, as district courts routinely contort themselves and the record to deny 2255s based on tissue-thin justifications.

The 10th Circuit last week gave district courts a well-needed wake-up call that a defendant is not proven conclusively wrong simply because a defense lawyer’s affidavit says so.

Larry Herring filed a 2255 claiming his trial attorney had been ineffective for not filing a notice of appeal after Len asked him to do so. His former attorney responded with an affidavit saying that he had told Larry that he did not do appeals, and had given his client a list of lawyers to contact. The lawyer stated emphatically that “I was never asked by Mr. Herring to file an appeal on his behalf.”

Citing that affidavit and arguing that the court told Lenny at sentencing about his appeal rights, the Government argued that Len’s complaint was meritless. The district court agreed.

justsayin190903Last week, the 10th Circuit reversed, reminding courts that attorney affidavits contradicting the defendant do not justify denial: “When a district court refuses to grant an evidentiary hearing,” the Circuit ruled, “first, we ask whether the defendant’s allegations, if proved, would entitle him to relief… Here, we hold that, if true, the facts Herring alleged in his section 2255 motion to support his ineffective assistance of counsel claim would entitle him to relief. Therefore, the record does not ‘conclusively show’ that Herring is entitled to no relief, and, accordingly, the district court abused its discretion by failing to hold an evidentiary hearing to resolve Herring’s section 2255 motion.”

As for the argument that the district court advised Herring of his rights and defense counsel gave him some appellate attorneys’ names (none of whom he ever contacted), the 10th said, “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case.”

Herring v. United States, Case No. 18-4023, 2019 U.S. App. LEXIS 25759 (10th Cir. Aug. 27, 2019)

– Thomas L. Root

Petition Your Way to Clemency – Update for August 30, 2019

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ANOTHER ROUTE TO CLEMENCY (BUT NOT AN EASY ONE)

ulbricht190830Ross Ulbricht (known as “Dread Pirate Roberts” to his friends, or sometimes just “DPR” for short) is serving a life term at the sunny U.S. Penitentiary in Tucson for having set up an Internet dark-web marketplace called “Silk Road,” where drugs, guns and criminal acts were bought and sold for bitcoins. As of this week, his change.org petition seeking support for a request for a Presidential pardon has generated an unprecedented 200,000 online signatures.

The petition, which asks President Trump to grant Ross’s application for pardon, is sponsored by the inmate’s mother and sister. His mother told Bitcoinist.com, that her son “is a good person, an idealist, and a libertarian.” She said, “I didn’t think of him as someone who was interested in technology pers se, but he was interested in Bitcoin because he was a freedom guy. He worked on the Ron Paul [Presidential] campaign. He was very interested in Bitcoin as a means to monetary freedom for people.”

Whether 201,403 signatures (the count as of 8 am EDT today), including those of some from politicians and movie celebs, is enough to motivate President Trump to release DPR, a man convicted of drug trafficking on a massive scale, is impossible to predict.

dreadedpirate190830The change.org page, written by Ross’s mother, says, “My son, Ross Ulbricht, is a first-time offender serving a double life sentence without parole, plus 40 years, for a website he made when he was 26 years old and passionate about free markets and privacy. Ross―an Eagle Scout, scientist and peaceful entrepreneur―had all non-violent charges at trial. He was never prosecuted for causing harm or bodily injury and no victim was named at trial.”

Far be it from me to interfere with a mother’s loving narrative, but the facts in the Dread Pirate’s case were a bit uglier than that. The 2nd Circuit said in its decision denying Ross’s appeal:

[T]he facts of this case involve much more than simply facilitating the sale of narcotics. The district court found by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity, a finding that Ulbricht does not challenge in this appeal. Ulbricht discussed those anticipated murders callously and casually in his journal and in his communications with the purported assassin Redandwhite. For example, in connection with the first hit, he wrote to Redandwhite that “FriendlyChemist is a liability and I wouldn’t mind if he was executed.” In the course of negotiating the price for the killing, DPR claimed that “[n]ot long ago, I had a clean hit done for $80k,” but that he had “only ever commissioned the one other hit, so I’m still learning this market.” He then paid $150,000 in Bitcoins for the murder, and he received what purported to be photographic documentation if its completion. Ulbricht then wrote in his journal that he “[g]ot word that the blackmailer was executed,” before returning quickly to other tasks associated with running the site.

In negotiating the other four killings, Ulbricht initially resisted multiple murders. He instructed Redandwhite to “just hit Andrew [usernames Tony76 and nipplesuckcanuck] and leave it at that.” Redandwhite said he could do it for “150 just like last time,” but that he would not be able to recover any of DPR’s money if he killed only one person because he would have to commit the murder outside of the victim’s home or office where he stored his funds. Id. If Ulbricht wanted him to recover money, the self-professed assassin claimed, he would have to kill not only Tony76, but also his three associates. DPR responded that he would “defer to [Redandwhite’s] better judgment and hope[d] [to] recover some assets” from the hit. He then sent $500,000 in Bitcoins, the agreed-upon price for four killings, to Redandwhite. As the district court stated in discussing Ulbricht’s journal entries concerning these projected murders, his words are “the words of a man who is callous as to the consequences or the harm and suffering that [his actions] may cause others.”

The record was more than sufficient to support the district court’s reliance on those attempted murders in sentencing Ulbricht to life in prison.

don190830Under current interpretation, a mere solicitation to commit murder is not a crime of violence under United States v. Davis, but we would be hard-pressed to call Ross a “peaceful entrepreneur.” Our local herbal tea lady is a peaceful entrepreneur, unless she has ordered a hit on the Starbucks across the street.

Still, we’ll see what effect 200,000 online signatures have on President Donald Trump. Unless it’s reported on “Fox and Friends,” we suspect not much.

Bitcoinist.com, Petition for Clemency for Silk Road Founder Nears 200k Signatures (Aug. 19)

change.org, Clemency for Ross Ulbricht, Serving Double Life for a Website

United States v. Ulbricht, 858 F.3d 71, 131 (2nd Cir. 2017)

United States v. Davis, — U.S. —, 139 S. Ct. 2319, 204 L.Ed.2d 757 (June 24, 2019)

– Thomas L. Root