A Couple of Sentencing Tidbits from Washington – Update for April 21, 2017

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SENTENCE REFORM – WAITING FOR THE DONALD

We’ve been hearing since last year that leadership in the House and Senate intend to resurrect the Sentence Reform and Corrections Act of 2015 in some form this year. But – like the weather – everyone seems to talk about it, but no one is doing anything about it.

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

Waiting170421On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

Brennan Center for Criminal Justice, Criminal Justice in President Trump’s First 100 Days (April 20, 2017)

– Thomas L. Root

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COMPASSIONATE KISSES

We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

compas160418“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

table170421The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

compassion160124In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

Institute for Humane Studies, George Mason University, Mary Price, How the Bureau of Prisons locked down “compassionate release” (Apr. 18, 2017)

– Thomas L. Root

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2nd Circuit Holds “In Guidelines” Sentence to be Unreasonable – Update for April 20, 2017

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LISAStatHeader2smallA SHOT ACROSS THE BOW

We have to begin, as always, with our usual disclaimer: child pornography is odious. The creation of it has a terrible impact on the children forced into such conduct. And of course, we – like the overwhelming majority of people – are repulsed by child porn itself. Even reading details of it in appellate court decisions often has us getting up frequently to wash our hands.

childporn170420As a result, there is hardly a crime easier to demagogue than child pornography. Congress has juiced the kiddie porn sentencing guidelines repeatedly, because – after all – who could object to hammering depraved people who looked at kiddie porn with what are effectively life sentences? Certainly not legislators. And can you imagine a senator or House member who voted against dictating guideline levels to the Sentencing Commission (who is expert in sentencing matters)? Any challenger at reelection time is going to point at the unfortunate solon and shout, “My opponent voted to let child molesters out of prison early!!!”

pork170420It’s the kind of thing (along with eating one too many pork-chops-on-a-stick) that will keep a politician awake at night.

Seven years ago, the U.S. Court of Appeals fired the first warning shot at the child porn guidelines in United States v. Dorvee. After reviewing in detail the politically-charged and commonsense-challenged history of the child pornography guideline, the Court “encouraged” district judges “to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

shot170420Last Monday, the 2nd Circuit revisited the question, and in a remarkable decision – a real shot across the bow for the child pornography Guidelines – held that a child porn sentence that fell within the calculated Guidelines range was nevertheless substantively unreasonable. And it did so even where the defendant was rather unsympathetic.

To our knowledge, no court has ever before held that a within-range Guidelines sentence was substantively unreasonable. That alone makes today’s decision a remarkable case.

Joe Jenkins – a man with no prior criminal conduct – was on his way to Canada to meet his parents for a family vacation. When Joe crossed into Canada, Canadian customs people thought he was acting squirrely, and so they inspected his laptop and a couple of thumb drives he had with him. They found a lot of kiddie porn.

Joe was charged in Canada, but – being released on bail – he beat feet back to the US. The Mounties, deciding that getting mad was not as rewarding as getting even, asked US Homeland Security whether they might be interested in Joe’s collection. They were. Joe was charged with a count of possession of child porn, and another of transportation of such porn across state lines.

bound170420At trial, Joe was obstreperous, sharp-tongued and uncooperative. He was convicted, and the court figured his Guidelines as 210-240 months. Joe was sentenced to 120 months for possession, the statutory maximum. On the transportation count, he got a concurrent sentence of 225 months, with a supervised release term of 25 years after the sentence ended. The district court thought Joe’s disrespect for the judicial process – not to mention some of the whoppers he told on the stand – suggested he was likely to possess child porn again after he got released.

The 2nd Circuit, in an unprecedented decision, held that Joe’s “in Guidelines” sentence was excessive. Noting that “in view of Jenkins’s age [43], this sentence effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life,” the Court rejected the sentence as violating § 3553(a)’s “parsimony clause,” which instructs a district court to impose a sentence “sufficient, but not greater than necessary,” to achieve § 3553(a)(2)’s goals.

The Court noted that “bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision. Whereas Jenkins’s transportation offense carried a skittyporn170420tatutory maximum of 20 years, the statutory maximum for his possession offense was “only” 10 years. Jenkins was eligible for an additional 10 years’ imprisonment because he was caught with his collection at the Canadian border rather than in his home.” What’s more, the Court said, the Sentencing Commission’s own statistics suggest that Joe’s age makes him much less likely to reoffend after a 10-year prison stint, which is at odds with the district judge’s holding to the contrary.

The Circuit reserved its most withering criticism for the enhancements that applied to Joe’s Guidelines calculations. The four most common include a 2-level increase for use of a computer and another increase for “more than 600 images.” The Court said that in Dorvee,

we noted that four of the sentencing enhancements were so “run-of-the-mill” and “all but inherent to the crime of conviction” that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months” based on an offense level increased from the base level of 22 to 35… The concerns we expressed in Dorvee apply with even more force here and none of them appears to have been considered by the district court. Jenkins received precisely the same “run-of-the-mill” and “all-but-inherent” enhancements that we criticized in Dorvee, resulting in an increase in his offense level from 22 to 35. These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child…

kporn160124The Circuit cited Sentencing Commission stats showing that 96% of child porn possession defendants received the enhancement for an image of a victim under the age of 12, 85% for an image of sadistic or masochistic conduct or other forms of violence, 79% for an offense involving 600 or more images, and 95% for the use of a computer. When nearly everyone qualifies for the enhancement, it ceases being an enhancement and begins being merely a characteristic of the underlying offense.

The 2-1 majority observed that

a sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable. Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest.

The appellate court concluded that “on remand, we are confident that Jenkins will eventually receive a sentence that properly punishes the crimes he committed. But Judge Suddaby, in imposing his sentence, went far overboard.”

United States v. Jenkins, Case No. 14-4295 (2nd Cir., Apr. 17, 2017)

– Thomas L. Root

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Doing The Money Hum at the Supreme Court: Two Restitution Decisions Today – Update for April 19, 2017

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U.S. SUPREME COURT HANDS DOWN TWO CRIMINAL DECISIONS ON RESTITUTION

The Supreme Court handed down two decisions this morning related to restitution. One deals with appealing have to pay it, the other with getting it back. Defendants split the ticket, 1-1.

moneyhum170419In Manrique v. United States, a defendant had an initial restitution judgment entered against him that had no amount specified, the district court holding that restitution was mandatory but deferring determination of the amount until later. Marcelo Manrique filed a notice of appeal from the initial judgment. Months later, the district court entered an amended judgment, ordering the defendant to pay $4,500 restitution to one of the victims. He did not file a second notice of appeal from the amended judgment. When Marcelo nonetheless challenged the restitution amount before the 11th Circuit, the government argued that he had forfeited his right to do so by failing to file a second notice of appeal. The Circuit agreed, holding the defendant could not challenge the restitution amount.

Today, the U.S. Supreme Court agreed, holding a defendant wishing to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that deferred order. If he or she fails to do so and the government objects, the amended restitution order may not be challenged on appeal. The Supremes said 18 USC 3742 (the appeals statute) and Rule 3(a)(1) of the Federal Rules of Appellate Procedure contemplate a defendant will file a notice of appeal after the district court has decided the issue sought to be appealed. The Court did not decide whether filing the second notice of appeal was jurisdictional, because regardless, it was “at least a mandatory claim-processing rule, which is unalterable if raised properly by the party asserting a violation…” Because the government raised the violation in a timely manner, “the court’s duty to dismiss the appeal was mandatory.”

In Nelson v. Colorado, the plaintiffs had been found guilty of sex offenses against children. Shannon Nelson’s conviction was thrown out on appeal, and at a retrial, she was acquitted. Alonzo Madden was convicted at trial of two counts. One was reversed on appeal, and the second thrown out on habeas corpus. The state refused to retry him.

Meanwhile, both had been forced by the prison system to pay restitution and court fees. Once their convictions were invalidated, they sought to get their money back, but the Colorado Supreme Court said that the state’s Exoneration Act was the only way to get a refund, and that Act required that they prove they were innocent (a much different proposition than being not proven guilty).

money170419Today, the U.S. Supreme Court reversed. The high court said Colorado cannot retain their money simply because convictions were in place when the funds were taken from them. Once the convictions were erased, the presumption of innocence was restored. Colorado may not presume a person who is adjudged guilty of no crime, nonetheless remains guilty enough for monetary penalties. The Exoneration Act “creates an unacceptable risk of the erroneous deprivation of defendants’ property.”

Manrique v. United States, Case No. 15–7250 (Supreme Court, April 19, 2017)

Nelson v. Colorado, Case No. 15-1256 (Supreme Court, April 19, 2017)

– Thomas L. Root

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Abandon Hope? Not this Congresswoman… – Update for April 18, 2017

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TILTING AT WINDMILLS

We had an email from an inmate this week asking whether we were aware of a bill pending in Congress that would reduce by the half sentences of nonviolent inmates over 45 years old without any shots.

retread170418The short answer is yes, there is such a bill. The long answer is that this bill – H.R. 64, Federal Prison Bureau Nonviolent Offender Relief Act of 2017 – is the mother of all retreads, having been pending in the last Congress as H.R. 71, Federal Prison Bureau Nonviolent Offender Relief Act of 2015, and the Congress before that (H.R. 62, Federal Prison Bureau Nonviolent Offender Relief Act of 2013), and the Congress before that (H.R. 223, Federal Prison Bureau Nonviolent Offender Relief Act of 2011), and… well, you get the picture.

We can track the pedigree of the Federal Prison Bureau Nonviolent Offender Relief Act all the way back to the 108th Congress (2003-2004), which is when lone wolf Sheila Jackson-Lee (D-Texas) first introduced the measure. She’s been tilting at the same windmill ever since, with her one-sponsor-only bill as certain a fixture in each new Congress as is the State of the Union address.

In 2015, one commentator wrote about Rep. Jackson-Lee’s bill (and others like it) that “these bills have very little likelihood of passage since only one representative, their author, has officially signed on as supporting them. Most of them were also introduced last Congress but were shelved.”

About 10,000 bills get introduced in every 2-year Congress, and only about 3% of them are passed. With the last Congress not able to even bring the Sentence Reform and Corrections Act of 2015 to the floor – after virtually all of its retroactive provisions (that would have helped federal inmates) were gutted – the “nonviolent offender” sentencing bill had no chance of even being taken up by a committee.

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

The new Administration, to put it charitably, is considerably less concerned than were Administrations of the past that federal inmates may be serving unfairly long sentences. Breitbart News, a right-wing website formerly run by Trump confidante Steve Bannon, was beating the drum last Saturday for a close audit of the 1,715 inmates whose sentences were commuted by President Obama. Most of those inmates are not released yet, but that did not deter Brietbart News, which quoted former federal prosecutor Bill Otis as saying, “What Attorney General Jeff Sessions’ Justice Department needs to do now is track the hundreds of fellows who got these pardons and commutations. With overall recidivism rates for drug offenses already being 77%, I think we have a pretty good idea, but the public should get specifics: How many of these guys re-offend; what’s the nature of the new crime; were there related violent crimes in the mix as well; and how many victims (including but not limited to addicts and overdose victims) were there?”

We monitor the bills being introduced in Congress every week. So far, nothing approaching the 2015 SCRA has been introduced.

Just last week, The Hill reported that Attorney General Jeffrey Sessions has directed federal prosecutors to crack down on violent crime. Sessions has tapped Steven Cook, a federal prosecutor and outspoken opponent of criminal justice reform, to lead Sessions’ new Task Force on Crime Reduction and Public Safety.

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, was quoted as saying,

Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed… I don’t know if he is really going to be able to persuade the department to follow his lead on this.

Whiting questions whether Sessions would be able find 94 prosecutors to appoint as U.S. Attorneys who will back his new tough on immigration crime/violent crime approach.

windmill170418With this attitude prevailing in the Justice Department, any surge on sentencing reform (not to mention interest in executive clemency) is extraordinarily unlikely to occur. Nevertheless, a salute to Rep. Jackson-Lee, who makes Don Quixote look like a quitter.

Breitbart News, How Federal Agencies Keep Americans In The Dark About Crime Statistics (Apr. 16, 2017)

The Hill, Sweeping change at DOJ under Sessions (Apr. 16, 2017)

– Thomas L. Root

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The Price of Magical Thinking – Update for April 17, 2017

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YOU SHOULD HAVE TAKEN THE DEAL WHEN IT WAS OFFERED…

magic170417Defendants facing trial often engage in magical thinking about their cases: they believe jurors will find reasonable doubt in the most convoluted explanations, that judges will suppress evidence for the most tenuous of justifications, that they will be bailed out by the admissions of co-defendants who are being rewarded for testifying for the government.

None of this happens often. In fact, it happens so seldom – TV shows notwithstanding – that it’s newsworthy when it arises. With a conviction rate approaching 99%, the government enjoys many hits and very few misses.

But the same kind of magical thinking that convinces problem gamblers that they’re going to beat the odds afflicts defendants. What their lawyers tell them enters their ears but does not reach their brain except through a filter that strips out the cold, hard truth. And later, when the defendants have become inmates, they recall what they want to recall of it.

takedeal170417Take Glen Allen, for example. The lawyer defending him from drug trafficking charges filed a motion to suppress evidence obtained in a search, but told Glen the motion was not likely to succeed, and he should take a plea deal of 91-121 months. Glen refused the deal, and told his lawyer not to negotiate any more deals. He said the proposed sentence “was too much time for me to do according to my involvement.”

Glen figured he knew better than his attorney, so he tried to file his own motion to suppress. When that didn’t work, he asked to hire a new lawyer, which was granted.

When he hired new counsel Clay Janske – whom Glen selected because he “would not be scared” to try the case before a jury – Glen explained to him that he was not interested in a plea deal and told him not even to discuss a new plea offer. Clay litigated the motion to suppress, which was denied. A few days prior to trial, a co-defendant agreed to testify against Glen. The government told Clay that if Glen went to trial, it would seek an enhanced sentence under 21 USC 851 based on Glen’s prior drug felonies. The enhancement would give Glen a mandatory life sentence.

Glen came to his senses, and took the latest plea deal, a mandatory minimum of 10 years. The court figured his guidelines at 121-151 months, and gave him the bottom.

mistake170417Glen filed a petition under 28 USC 2255, claiming his attorney was ineffective in explaining the first plea agreement to him. Gary said Clay told him he would only get “a couple of more years” if he went to trial instead of pleading guilty. Clay said he had told him that, but it was based on inaccurate information Glen gave his lawyer about his criminal history. Glen said that if Clay had properly advised him about the potential of a mandatory life sentence, he would have pleaded guilty before the suppression hearing. Instead, he pleaded guilty right before trial and faced a 10-year mandatory minimum instead of a 5-year one.

What Glen didn’t get – and many defendants don’t get – is that it is not enough just to show a lawyer gave lousy advice about a plea deal. After all, lawyers do that all the time, either because they’re not focused, not very bright, or not working the right information. In order to win a claim of ineffective assistance for bad advice on a plea, a defendant has to be able to show that but for the bum advice, he or she would have probably taken the deal. Last Friday, the 8th Circuit showed just how inflexible a standard that can be.

oops170417The appeals court held Glen had nothing coming, because being ignorant of the risk he might get a life sentence was not all that drove Glen’s decision. True, the Court said, Glen pointed to the fact that once he learned he might get a life sentence, he quickly pleaded guilty. Glen argued that fact showed a “substantial, not just conceivable, likelihood” that he would have accepted the initial plea offer had Clay only advised him he could get life. The Circuit held, however, that it was clear that Glen’s decision “was motivated by his belief that the plea offer was not favorable enough and his hope that he would succeed on the suppression motion.”

guilty170417The district court found that two factors — the decision of Glen’s co-defendant to testify and the possibility of a life sentence — influenced Glen’s decision to plead guilty. In other words, Glen failed to prove that “but for his counsel’s advice, he would have accepted the plea.”

“Under similar circumstances,” the Circuit said, “we concluded a habeas claimant failed to show prejudice in part because he was unwilling to consider pleading guilty, had always expressed a desire to proceed to trial, and none of counsel’s discussions about the possibility of a guilty plea seemed to sway him.” Thus, the Court held, Glen “failed to prove, by a substantial likelihood, that he would have accepted the offer to plead pursuant to the earlier proposed terms.”

Allen v. United States, Case No 15-3607 (8th Cir. 2017)

– Thomas L. Root

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Rogue Agents, Impaired Judges: A Friday Collection – Update for April 14, 2017

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CRIMINAL JUSTICE BEHAVING BADLY

Two reports the past several days caught our attention, and neither speaks well for the federal criminal justice system.

atf170414ATF Agents Running Amok: First, the New York Times reported Wednesday that ATF agents in Bristol, Virginia, set up a secret bank account, which they funded with millions gained in illegally peddling cigarettes. The agents directed their informants to buy untaxed cigarettes, mark them up and sell them for a profit.

The Times said “the operation, not authorized under Justice Department rules, gave agents an off-the-books way to finance undercover investigations and pay informants without the usual cumbersome paperwork and close oversight, according to court records and people close to the operation.”

The account came to light in a civil suit claiming the agents broke federal racketeering law, brought in the Eastern District of North Carolina by a collective of tobacco farmers, who claim they were defrauded of $24 million. Two ATF informants received at least $1 million each from that sum, according to records produced in the suit. Most of the filings in the case are sealed.

The Times reported that “the scheme relied on phony shipments of snack food disguised as tobacco. The agents were experts: Their job was to catch cigarette smugglers, so they knew exactly how it was done.”

Money from the operations was used for a number of activities, including the renting of a $21,000 hotel suite at a NASCAR race, a trip to Las Vegas and a monetary donation to one agent’s daughter’s high school volleyball team.

ATFA170414What is not being said, of course, is that the agents’ misconduct – and the involvement of informants who took off-the-record payments – could have substantial repercussions in any criminal prosecutions where testimony of those agents or CIs played a role. The Department of Justice Inspector General began investigating the allegations after the Times contacted DOJ about the story.

Guardianship Sought for Federal Judge: A federal judge whose bizarre behavior on the bench preceded her mysterious removal from a number of cases was previously ordered to get treatment for alcoholism so severe a colleague believes she cannot take care of herself, according to court records released Thursday.

U.S. District Judge Patricia Minaldi’s alcoholism don’t answer whether it was a factor in the secretive interruptions in her Louisiana courtroom. But the documents show she moved into an assisted living facility specializing in “memory care.”

Minaldi170414In February 2016, during voir dire in a criminal trial, Judge Minaldi failed to determine if jurors were U.S. citizens and delivered no preliminary instructions. After the public defender made a motion for curative measures, the Judge ordered the prosecutor to deliver preliminary instructions to the jury, stopping to complain to the prosecutor, “I have no idea what’s going on here. Get your act together.” After the prosecutor and public defender jointly moved for a mistrial, the chief district judge removed Judge Minaldi from the case and assigned it to Judge Donald Ellsworth Walter, who then declared a mistrial.

The chief judge of the 5th U.S. Circuit Court of Appeals ordered Judge Minaldi to complete at least 90 days of substance abuse treatment, due to the severity of her alcoholism and “legal consequences she had attained.”

Judge Minaldi, 58, has been on medical leave since the end of 2016. Newly released records showing that she is in a long-term care facility are part of a lawsuit filed by Judge Minaldi’s Magistrate Judge, Kathleen Kay. The lawsuit challenges Judge Minaldi’s physical and mental capacity to manage her personal and financial affairs.

That lawsuit was filed under seal, but portions made public report at as of March 2017, Judge Minaldi’s condition was so severe that she was “unable to take care of her daily activities” and “unable to safely take care of her personal needs, financial matters, or her property matters,” the filing says.

Unlike the ATF situation, Judge Minaldi’s condition is medical, not a breach of trust. But like the ATF situation, the effects of recent revelations could reverberate across any number of criminal cases that appeared in front of the Judge over the past several years.

– Thomas L. Root

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Judges’ Decisions are Final… – Update for April 13, 2017

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DON’T LOOK BACK

fasttalk170413Every so often, broadcast stations are required to air an announcement of their contest rules. This is because the FCC believes that listening to an avalanche of mumbo-jumbo delivered by the guy who used to do the Fedex fast-talking commercials makes us more informed listeners.

We were reminded of one of the actually discernable phrases in the contest rules by today’s case: “Judges’ decisions are final.” Finality is a concept that seems hard for people to appreciate, but one which is necessary if the judicial system is every going to work.

fat170413Normally, inmates are on the wrong side of this argument. A prisoner who believes she was wrongly convicted or sentenced wants to keep pleading the case until someone in authority finally agrees with her. There are exceptions to finality – new evidence that could not have been discovered before, a new court decision that meets requirements for being applied retroactively, even a retroactive change in the guidelines. But mostly, “final” means final.

It today’s case, finality actually worked in favor of the defendant. Hakan Yalincak was an NYU student a decade ago when he pled guilty to running a sham hedge fund. Along with a sentence, the court in April 2007 imposed restitution of $4.2 million.

Hakan immediately applied under 18 USC 3664(j)(2) to have money recovered in the fund’s bankruptcy be credited to his restitution. The government paid little attention to the request, noting only that it had no objection to grant of Hakan’s motion. The district court thus approved the request, ultimately applying about $1.55 million collected by the bankruptcy trustee to the amount Hakan was to pay.

bkptcyscam170413What no one appreciated was that the federal bankruptcy system works in a way that would a mere amateur fraudster like Hakan blush. Sure the trustee collected $1.55 million, but by the time all of the bankruptcy vultures – lawyers, trustees, experts – got done picking at it, the victims of the scam got about $300,000. In May 2015, the district court realized that the amount of money actually reaching the victims was about 20% of the credit it had given Hakan, it vacated the 2007 order under F.R.Civ.P. 60(a), which gives a court the power to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment.”

Hakan appealed, arguing the 2007 order was final and could not be disturbed.

This week, the 2nd Circuit Court of Appeals agreed with Hakan. The Court said the issue turned on whether an order modifying restitution was a final, appealable order. If so, the district court could not later revisit it. If not, the order remained open to modification by the district court.

The Circuit decided the 2007 order was final:

When the district court granted Yalincak’s motion for credit, it made a conclusive determination as to Yalincak’s entitlement to credit… The order did not dispose of the issue of restitution entirely, given that the credits were not enough to discharge Yalincak’s restitution obligations in full and thereby end the restitution proceedings. Nonetheless, the district court’s resolution of the § 3664(j)(2) motion was a final decision as to Yalincak’s claim regarding the proper accounting for particular funds. If such a decision were not considered final and appeal had to wait until Yalincak had discharged his restitution obligations entirely, it is unclear as a practical matter whether the district court’s grant of the Sec 3664(j(2) motion could ever be challenged.

over170413Yalincak still owed close to $2 million, according to the district court’s calculations. The Circuit admitted that “the district court’s desire to correct an error largely attributable to the government’s somewhat casual consent is understandable. Nevertheless, considerations of finality dictate that by the time the error was noticed, it was beyond the power of the court to correct.”

United States v. Yalincak, Case No. 11-5446 (2nd Cir., April 10, 2010)

– Thomas L. Root

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Cellphone Voyeurism Worth 25 Years in Prison – Update for April 12, 2017

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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.

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A QUESTION OF DEGREE

In the largely seamy world of child porn, much harsher sentences are justifiably reserved for people who produce the images, who procure the kids, or who advertise the stuff for sale. Mandatory minimum sentences for such conduct – listed in 18 USC 2251 – begins at 15 years.

The consumers of the product don’t face a picnic, but sentences under 18 USC 2252 for the people who receive, possess or pass around such images start at a third of the harsher sentences.

Some crimes are pretty hard to demagogue, and production of kiddie porn is one of them. Still, the old maxim that hard cases make bad law remains true.

Much of the rationale for severe sentences for producers arises from justifiable concern over what forcing children to engage in sex acts does to their psyches, how it robs them of the innocence of childhood. One Circuit Court explained that “[t]he crime is the offense against the child – the harm ‘to the physiological, emotional, and mental health’ of the child; the ‘psychological harm; the invasion of the child’s ‘vulnerability’.” 

tom170412Within the production statute’s sweep, however, have come voyeurs, especially with today’s ultra-small wireless cameras. Unlike the producers, voyeurs simply set up their cameras in hope of catching candids of subjects in various states of undress or during intimate moments. While the practice is odious and an invasion of privacy, voyeurism is qualitatively different from other production. Many times the subject – child or not – is not aware of the recording and never comes to find out that the image exists. Whatever intimate sexual conduct that is recorded was volitional: unlike a child forced to act in a porn production, the minor has not done anything he or she didn’t set out to do.

Nevertheless, 18 USC 2251 is unbending, and a voyeur might as well be a producer. That’s what a defendant – we’ll call him Voyeur Vic – found out yesterday from the 10th Circuit.

Vic used hidden cellphones to secretly record his girlfriend’s 11-year old daughter while she showered and used the bathroom, while the girlfriend was at work. Apparently not happy with the quality of the cellphone screen, Vic transferred the video files to his computer and created still images, some of which focused on her girl’s private parts.

Vic never posted the images on the Internet, but rather, kept the still images in his own computer for his personal gratification.

The 11-year old victim was a pretty smart and observant kid, and she saw the cellphones Vic used to record her. She grabbed them, confronted him about what he was doing, and fled on her bicycle to a friend’s house when she feared he would take them from her forcibly. The neighbors called the cops, and that was that.

voyeurism170412Vic was indicted on two counts of attempted sexual exploitation of a child in violation of 18 U.S.C. 2251(a) & (e). Vic promptly moved to dismiss the indictment. He argued the undisputed evidence showed he “secretly videotape[d] the unaware minor while she performed activities over which he had no control or influence.” He contended his conduct did not satisfy the “uses” element of Sec. 2251(a), which Vic claimed requires “a causal relationship between the defendant and the minor’s sexually explicit conduct.”

Yesterday, the 10th Circuit disagreed. Section (a) of 2251 provides that anyone “who engages, employs, uses, persuades, induces, entices, or coerces any minor to in… any sexually explicit conduct for the purpose of producing any visual depiction of such conduct… shall be punished…”

The Circuit held that the term ‘uses’ in the statute “reaches a defendant’s active involvement in producing the depiction even if the interpersonal dynamics between the defendant and the depicted minor are unknown.” Such an interpretation, the appeals court said, “gives effect to every word” in the statute, which is a basic tenet of statutory construction. As well, the Court said, “it is consistent with Congress’ intent to provide “a broad ban on the production of child pornography… aimed to prohibit the varied means by which an individual might actively create it.”

The Court said a number of other circuits that have grappled with the issue have agreed that a perpetrator can ‘use’ a minor to engage in sexually explicit conduct without the minor’s conscious or active participation.

pornC160829No one contends that such images – especially when edited to focus on a child’s privates – should not be punished. At the same time, applying the same 15-year mandatory minimum sentence to a voyeur who deploys a hidden camera without the subject’s knowledge that would apply to a producer of porn which uses children being coached to engage in illicit conduct for the camera demeans the more serious of the offense.

At the same time, the Circuit’s statutory interpretation is suspect. Far from giving meaning to every word, the appellate court seems to hold that the meaning of “uses” is broad enough to subsume all of the other terms – engages, employs, persuades, induces, entices, or coerces – thus making them surplusage. Interpreting a statute to avoid surplusage is as much a canon of statutory construction as is giving effect to every word.

If “use” means what the 10th says it means, then it includes all conduct that comprises engaging, employing, persuading, inducing, enticing or coercing. It also paints with a very broad brush, punishing conduct that – while reprehensible – does not scar the child the way enticement or coercion does.

Vic got 292 months for his Peeping Tom-ism, a sentence that a director of a porn flick of coerced kids might deserve. Whether locking someone up for a quarter century over voyeurism was the statute’s intent may yet be addressed by the Supreme Court.

United States v. Theis, Case No. 16-3058 (10th Cir., April 11, 2017)

– Thomas L. Root

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When Lawyers Check In… but Don’t Check Out – Update for April 10, 2017

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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.

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YOU HAVE THE RIGHT TO AN ATTORNEY WHO YOU CAN’T GET RID OF

Sacred to 6th Amendment law is a defendant’s right to an attorney in criminal prosecutions. In fact, a defendant has a right to an attorney of his or her choice, and within reason, can compel a court to appoint a different lawyer if the accused is unhappy with the one who was first appointed.

roach170310A defendant’s right extends to an appeal and sometimes to post-conviction hearings, rights that have been extended by statute rather than the 6th Amendment. In fact, many inmates who sought 2-level drug sentencing reductions over the past few years found that district courts had issued blanket orders appointing the federal public defender in the district to represent those seeking a sentence reduction under 18 USC 3582(c)(2).

Brad Tollefson was one of those prisoners who suddenly found he had appointed legal help. All on his own, Brad had figured he was due for a sentence reduction under Guidelines Amendment 782, and so he filed a motion with his court that he wrote himself, asking for a reduction from 227 to 165 months, arguing that he had really done a great job rehabilitating himself in prison.

But because the district court had issued a blanket order appointing the federal defender to represent everyone seeking a 2-level reduction, Brad had a mouthpiece. His the public defender then filed a motion, too, this one seeking a sentencing cut for Brad down to 183 months.

Brad’s judge was unimpressed with either motion. He thought Brad had already gotten a good enough deal, a prior cut for assisting the government and a downward variance from his Guidelines range. The district court denied both motions, and Brad got nothing.

reallawyer170216Brad filed an appeal, arguing that his 6th Amendment rights were violated, because he didn’t want the public defender’s help. Brad blamed the PD’s conflicting motion for the judge refusing any cut at all. Last week, the 8th Circuit denied his appeal.

Brad argued the district court violated his due process right to be heard because it appointed the federal public defender to represent him. But the Circuit said that to comply with due process, all a district court must do is provide a defendant “adequate notice and reasonable opportunity to be heard.” Because the Supreme Court previously held defendants have no due process right to self representation on direct appeal of their convictions, the 8th said “we find no reason why we should not extend the holding to postconviction sentence reduction proceedings.

Brad complained that his appointed attorney provided ineffective assistance. Because he had no right to counsel during his postconviction sentence reduction proceedings, the Circuit said, Brad “cannot assert a valid claim for ineffective assistance.”

United States v. Tollefson, Case No. 16-1903 (8th Cir., April 6, 2017)

– Thomas L. Root

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“Standing” Up for the FOIA – Update for April 7, 2017

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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.

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YOU’VE GOT TO BE A PLAYER

The Freedom of Information Act is a pretty slick statute. Using FOIA, Joe Average Citizen can obtain all sorts of information from government agencies, quite often including information the government would rather Joe not have.

WHBeer170407Journalists used FOIA to get the FBI file on Dr. Martin Luther King. Hillary’s emails were released because of FOIA requests. The IRS targeting scandal erupted because of an FOIA request. And on a more individualized scale, a casual Freedom of Information Act request we made back in 1994 for an inmate with a life sentence resulted in his release 12 years later.

As an old law partner we once practiced with liked to say, you never know what’s under a rock until you turn it over. Picture the FOIA as the spud bar you use to turn over those rocks.

All is not roses, by any means. First, FOIA applies only to federal agencies, and then only to executive branch agencies. FOI the FBI? Sure thing. CIA? Why not? But you cannot use the FOIA to U.S. Probation Office documents (it’s a judicial branch agency) or to get into the Government Accountability Office files (the GAO is a legislative branch agency).

Redac170407The FOIA has some very restrictive deadlines for agencies to respond, which should ensure that requesters get their documents quickly. Anyone who’s ever filed an FOIA request knows that the agencies honor those deadlines in the breach. And why not? A requester’s only recourse is to sue, after which the agencies will drag their bureaucratic feet even more, and then finally send a few documents and tell the court that they have no idea what the requester’s beef is – he or she got the documents.

And the document response will be incomplete, and documents that are turned over will have words, sentences, paragraphs – sometimes the whole page – blacked out (“redacted” is the term the agencies use) because of one or another exemption from disclosure. That requires more litigation and more piecemeal response. We worked on one plain vanilla FOIA request filed with a U.S. Attorney’s office and the FBI in 2009 that was finally fulfilled after seven years of litigation. Sadly, the Obama Administration – which promised to be the most “transparent” in history – was one of the least compliant with the FOIA.

Still, like the state lotteries tell us, you have to play to win. That’s why we were so bemused by a D.C. Court of Appeals decision this past week in an FOIA action brought by well-known post-conviction lawyer Jeremy Gordon and his non-profit arm, Prisology.

prisology170407Prisology sued the Federal Bureau of Prisons under the FOIA, charging that the BOP violated the statute because it did not publish inmate grievances and its responses, Federal Tort Claims Act lawsuit settlement information, and reports on compassionate releases it has recommended to courts. Prisology argued that a section of the FOIA requiring publication of agency final opinions, policy statements not published in the Federal Register, and administrative staff manuals, mandated that the BOP post up the omitted information on the Internet.

But you’ve gotta be a player first, and Prisology overlooked that. It seems the nonprofit never requested bothered to request any information under the FOIA – so it could be turned down – before filing its two-page lawsuit.

Earlier this week, the D.C. Circuit Court of Appeals reminded Prisology that it’s pretty basic first-year law school dogma that anyone bringing a lawsuit has to be able to allege concrete injury. Article III of the Constitution requires a “case or controversy,” and since the dawn of the Republic, that means that the party bringing the suit has to be able to allege it was injured.

player170407The Circuit noted that “Prisology’s complaint contains no allegation of injury, general or otherwise. Even if we inferred an injury to Prisology from the Bureau’s alleged failure to publish its records electronically, this would not differentiate Prisology from the public at large… Prisology made no request of the Bureau of Prisons before bringing suit and therefore received no denial from that agency.”

Prisology argued that its lawsuit “amounted to a request for particular information,” meaning that it has standing. “The argument goes nowhere,” the Circuit replied. “To the extent that a complaint may be seen as a request, it is a request for relief from a court. If the court denies the request, the plaintiff may appeal. But a court’s refusal to grant relief cannot confer Article III standing that otherwise does not exist.”

denied170407We’re rather surprised that the plaintiff made such a rookie mistake. To nonlawyers, “standing” might seem to be a frivolous formality, and the Court acknowledged that, even while expressing its own puzzlement at Prisology’s approach:

The result here may seem overly technical. But Prisology’s predicament is one of its own making. With little effort it may have been able to satisfy the requirements of Article III. The Supreme Court over the years has taken steps to clarify the law of standing. We would not muddy the waters in order to accommodate Prisology’s recalcitrance even if we had the power to do so, which we do not.

Prisology v. Bureau of Prisons, Case No. 15-5003 (April 4, 2017)

– Thomas L. Root

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