The Legend of Petey Candlewood – Update for April 6, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

RIPPING OFF INMATES

[Corrected on January 29, 2019, to cite that about 1,800 inmates annually receive Rule 35(b) reductions, rather than the incorrect “9,500” figure in the original post – sorry for the error]

Anyone reading what we put out often enough might get the sense that we’re no fans of long prison sentences, or – in many cases – of any prison sentences at all. But there are exceptions, and yesterday, we came across one.

snitch161004It’s a fairly well known fact that a substantial minority of federal prisoners trade information for lower sentences. We’re down with that: a defendant’s got to do what a defendant’s got to do. Most people who do this jump aboard the train early, but a few go through sentencing without cooperating, only to regret their decision when they walk through the prison doors. For them, there’s Rule 35(b).

Federal Rule of Criminal Procedure 35(b) lets the government file a motion asking that a prisoner’s sentence be cut for post-sentencing cooperation. The Rule 35(b) motion is discretionary on the government’s part, and the sentencing court does not have to grant it. But it works and works well: an average of 1,800 inmates a year received  sentence reductions under Rule 35(b) between 2009 and 2014, with the average prisoner getting a 37% sentence cut.

The biggest hurdle for a prisoner seeking a Rule 35(b) sentence reduction is to have some juicy information to trade. After all, the inmate’s locked up, and there are not a lot of opportunities to come up with the kind of first-hand dirt that case agents and U.S. Attorneys like to feast on. In the last decade, inmate scuttlebutt has invented a way around that: third-party Rule 35(b)s.

winwinwinThe concept is simple: the inmate pays someone to arrange a third party on the street to come up with some good confidential information that helps the Feds bag some bad guys. The people with the information ask the U.S. Attorney to credit their information to the inmate, who gets a Rule 35(b) motion for sentence reduction. A real win-win! A bad guy’s off the street, the informant makes some money, and the inmate gets a sentence cut. What could possibly go wrong?

Lots. The sad fact is that only a very few courts have granted third-party Rule 35(b) motions, and only when stringent standards are applied. Some courts ban third-party Rule 35(b)s altogether, but the trend is to not turn down a chance for the Feds to enforce the law. The courts that approve them generally require that (1) the inmate play some role in instigating, requesting, providing, or directing the assistance; (2) the government would not have received the assistance but for the inmate’s participation; (3) the assistance is rendered for free; and (4) no other circumstances weigh against rewarding the assistance.

Fraud170406In other words, anyone planning on getting a third-party Rule 35(b) would want to be sure that he or she was personally involved in getting the person to step forward, and that the inmate can easily show that the Government wouldn’t have gotten the help without him or her. Most important, the prisoner had better be absolutely sure that the person providing the assistance is not getting paid anything for it.

So who does a third-party Rule 35(b) work for? A wife bailing out her husband, a father bailing out his son, brother helping brother… that kind of thing. It definitely does not work for a stranger being paid by an inmate to snitch on another stranger. One can only imagine the field day a defense lawyer would have with a government witness who had been paid under the table by an inmate to inform on someone else.

EasterBunny170406So a third-party Rule 35(b) cannot happen. But that technicality does not keep inmates from hoping, and where inmates hope, there’s usually someone standing there ready to take their money.

Someone like Alvin Warrick. Or maybe we should call him “Pete Candlewood,” one of the aliases he employed as he ripped off federal inmates and their families. “Pete” and his co-conspirators were indicted in federal court for their third-party Rule 35(b) scheme last fall, and a few weeks ago, they pled guilty. Having enjoyed seven rich years living off money they defrauded from inmates’ families, they now are looking forward to seven lean years (at least).

Relatives of at least 22 inmates paid “Pete” and his sidekicks something like $4.4 million, based on their vague promises to set up third-party Rule 35(b) deals. Through a Beaumont, Texas, company called Private Services, “Pete” and his girlfriend Colitha Bush (who went by “Diane Lane”) told the relatives that they “used a network of informants to make undercover drug deals and to provide information and third party cooperation in other criminal cases under the supervision of prosecutors, federal agents, and the courts.” They said that, “if successful, such deals and information would be credited to the inmate and used to secure their early release through a Rule 35 motion.”

fraud160530Private Services promised families that substantial assistance was being provided to the government on behalf of their inmate loved one. “Pete” even provided fake invoices and phony documents showing that Private Services had inked deals with U.S. Attorneys to provide assistance. In the Factual Proffer “Pete” agreed to in his plea, he admitted that he had “assured and consoled family members of federal inmates that he would work on their case and help to coordinate third party cooperation, but in truth and in fact, and as he well knew, no such work was ever done.”

In its usual celebratory press release, the Acting U.S. Attorney for South Florida fulminated, ““Sentencing reduction fraud schemes that prey on the desperation, vulnerability and trust of federal inmates and their families exploit both the victims and the justice system. The U.S. Attorney’s Office in South Florida and our federal partners across the nation will continue to target such schemes and prosecute the offenders.” While we tend to discount government pontification in criminal cases like the media discount President Trump’s tweets, we’re with him on this one.

Apparently, the FBI is still trying to find additional victims. “If you are a victim, it is critical that you reach out to us,” FBI Special Agent in Charge Perrye K. Turner is quoted as saying in the March 30th USAO press release. “This case highlights that justice is blind and underscores the FBI’s impartiality when investigating cases.”

Unsurprisingly, none of “Pete’s” inmate clients received a shorter prison term during the course of the 7-year scheme. Not a one. But the scam was mightly good to “Pete” and “Diane,” who received regular payments from the inmates’ families, which they spent on luxury cars, vacations and gambling.

scam170406“Pete” and “Diane” – along with Private Services’ treasurer (who had the sense to make a cooperation deal with the government himself rather than through Private Services) – have signed plea deals. And it’s a fair prediction the inmates’ families will never recover a dime.

Miami Herald, Conning the convicts: trio admits to ripping off South Florida inmates (Apr. 3, 2017)

United States v. Warrick, Case No. 1:17-cr-20194 (S.D. Fla.)

– Thomas L. Root

LISAStatHeader2small

Live by the Sword, Die by the Sword – Update for April 4, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small

SUPREMES SAY COURT CAN CONSIDER MANDATORY GUN SENTENCE WHEN SENTENCING ON UNDERLYING CRIME

Outside of TV cop shows, no one likes drug dealers or violent criminals waving firearms around, which is probably why no crime this side of kiddie porn is easier to demagogue than laws that slam gun-toting criminals.

gun160718Take 18 USC 924(c), which sets penalties for criminals who use, carry or possess a gun “during and in relation to” a crime of violence or drug-trafficking offense. A defendant convicted of a 924(c) offense must get a mandatory sentence of at least 5 years (with increased penalties if the perp “brandished” it or fired it, and whopping increases if, for example, it was fully automatic). What’s even more impressive, the statute raises the mandatory minimum to 25 years for the second offense. Oh yeah, and all 924(c) penalties must be consecutive to any other sentence.

Watch how the math works: On Monday, Bart Badguy robs a convenience store with a .44 Klutzman stuck in his waistband, and makes off with a bag of Doritos. Realizing later that he has nothing to dip it in, he robs another convenience store the next day, the same revolver displayed under his belt, and grabs some French onion dip. The federal sentencing guidelines set him at 63-78 months for the two robberies, and the court sentences Bart at the bottom (understanding what hunger can do to a man).

doritos170404But Paula Prosecutor is a canny lawyer, and she thus had the foresight to get Bart indicted for two 924(c) counts along with the two robberies. The first 924(c) count adds 60 months to the 63 months the district court imposed for the robberies. The second 924(c) count – arising from Bart’s going back for the dip – adds 300 months to the robberies and the first 924(c) conviction. Total sentence: 403 months (35¼ years) for chips and dip.

No one would argue against punishing crimes of violence involving guns more harshly than other offenses. Shooting legend Elmer Keith is credited with observing that one should never bring a knife to a gunfight, and the sentiment – that people carrying guns are likely to use them – undergirds 924(c).

knifegunB170404But the statute is inflexible, and the government has had its fun with it as a result. While Congress probably meant that a second 924(c) conviction – carrying a 25-year mandatory minimum – had to follow a prior 924(c) conviction, prosecutors years ago sold the Supreme Court that the statute did not say there had to be an intervening conviction. In Deal v. United States, a 1994 decision, the Supreme Court held that a drug-addled bank robber who held up six banks in a 3-month period – carrying a gun for all of them – had to get a 105-year sentence.

Yesterday, the government – which had lived by the sword – died by the sword.

The Supreme Court unanimously reversed the 8th Circuit, holding that a sentencing court may consider the length of a mandatory consecutive sentence when setting the length of an underlying sentence.

In Dean v. United States, the defendant was charged with committing two robberies with a gun. The robberies carried a guidelines sentence of 84 to 105 months. One of the two 924(c) counts carried a mandatory 5 years, and the second carried a mandatory 25 years. Both sentences had to be consecutive to the underlying sentence and each other.

So Levon Dean got to sentencing knowing that he had a minimum 360 months coming. His lawyer argued that it was more than enough, and the judge hardly needed to pile on another 84 months for the underlying offense. While the district court, the judge said he was not allowed to adjust the sentence of the underlying robbery to zero to account for the two consecutive gun sentences. Levon got 400 months.

knifegun170404The 8th Circuit agreed with the government that the underlying offense had to be sentenced as though the 924(c) counts were not there, and then the consecutive sentences had to be stacked on like pancakes. Anything else, the Justice Department argued, would thwart the will of Congress.

How convenient for the government that the will of Congress becomes a crucial consideration in Dean, while it was utterly irrelevant 24 years ago in Deal! Yesterday, however, the Supreme Court found it not so convenient, holding that while adjusting the underlying offense guidelines to zero might negate the will of Congress, that did not matter. The plain text of the statute was clear, and the plain text governs:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate 924(c) offenses whenever they think a mandatory minimum under 924(c) is already punishment enough. But no such intent finds expression in the language of 924(c). That language simply requires any mandatory minimum under 924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under 924(c) when calculating an appropriate sentence for the predicate offense.

The government argued that Congress’s intent that the underlying offense be sentenced without regard to the 924(c) count could be inferred from the statute’s silence. But in another consecutive-sentencing statute for identity theft, Congress included specific language limiting the district court’s ability to adjust the underlying sentence.

Sentencestack170404The Supremes ruled that because “Congress has shown that it knows how to direct sentencing practices in express terms,” but did not in 924(c), a sentencing court may impose a sentence on the underlying offense of one day, in order to make the overall sentence consistent with what the court considers appropriate under 18 USC 3553 (the sentencing statute). The Court said, “we ordinarily resist reading words or elements into a statute that do not appear on its face.”

Dean will go back to court for resentencing, where he will receive 30 years and a day.

Dean v. United States, Case No. 15-9260 (Apr. 3, 2017)

– Thomas L. Root

LISAStatHeader2small

Leftovers – Update for April 3, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we have some leftovers for you, chiefly because we got so busy last week that we did not get caught up with posting before the weekend was upon us.

LISAStatHeader2small

NUMBERS OF THE DAY

After peaking in 2011, the number of federal criminal prosecutions has declined each year since, is now at its lowest level in nearly 20 years.

prosecutionstat170403A Pew Research Center analysis released last week reported that the 77,000 people charged in fiscal years 2016 was a 25% decline over five years before, when 103,000 defendants were charged.

Attorney General Jeff Sessions has indicated that the Justice Department will ramp up criminal prosecutions in the years ahead, leading some to suspect that the rate will climb again.

Pew Research Center, Federal criminal prosecutions fall to lowest level in nearly two decades (Mar. 28, 2017)

LISAStatHeader2small

CASH TAKE OF THE DAY

Last summer, USA Today reported that the DEA relies on a network of travel-industry informants, from ticket sellers to back office IT people, to single out passengers for asset seizures. The paper reported that 85% of cash seizures occurred as a result of such interdiction operations at transportation facilities or highway stops.

asset170403Turns out there’s a good reason for that. In a report issued last week, the Dept. of Justice Inspector General found the DEA has seized more than $4 billion in cash since 2007, with 81% of those seizures – totaling $3.2 billion – were conducted without civil or criminal charges being brought against the owners of the cash, and without any judicial review of the seizure. And that total does not include the value of other seized assets like cars, homes, boats or electronics.

Asset forfeiture - yeah, it kind of works like this...
Asset forfeiture – yeah, it kind of works like this…

The OIG report found the DEA could verify that only 44% of the seizures studied had been related to ongoing or new investigations or led to prosecutions. “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution,” the report said, “law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.”

In a written response to the Inspector General included in the report, the Justice Department’s Criminal Division disputed both the report’s findings and methodology. It maintains that civil asset forfeiture is “a critical tool to fight the current heroin and opioid epidemic that is raging in the United States.”

USA Today, DEA regularly mines Americans’ travel records to seize millions in cash (Aug. 10, 2016)

Office of Inspector General, DOJ, Review of the Department’s Oversight of Cash Seizure and Forfeiture Activities (Mar. 29, 2017)

Washington Post, Since 2007, the DEA has taken $3.2 billion in cash from people not charged with a crime (Mar. 29, 2017)

Reason, DEA Seized $4 Billion From People Since 2007. Most Were Never Charged with a Crime (Mar. 29, 2017)

LISAStatHeader2small

THE FIRST STIRRINGS OF SENTENCE REFORM?

Jared Kushner, son-in-law and senior adviser to President Donald Trump, met last Thursday with Sens. Chuck Grassley (R-Iowa) and Richard Durbin (D-Illinois) on Capitol Hill last Thursday to discuss revival of the sentencing reform legislation that stalled at the end of the last session of Congress.

The story broke on the paragon of journalism excellence, Buzzfeed, leaving us to withhold noting it until some more acceptable journalistic sources picked up the story. It does, however, appear to be accurate.

SR160509Grassley, chairman of the judiciary committee, and Durbin, the Democratic whip, have said they want to bring back sentencing reform legislation in this Congress. Sen. Mike Lee (R-Utah), a strong advocate for criminal justice reform, attended the meeting as well.

Grassley said he will “know in three weeks” whether the White House is interested in the legislation. He told reporters, “We’re trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year.”

A broad coalition — including the ACLU and the conservative Koch Industries — says the federal criminal justice system is broken. Grassley, Durbin and Sen. John Cornyn (R-Texas), sponsored the prior bill in the Senate. House Speaker Paul Ryan, R-Wisconsin, was a strong supporter of the effort.

US News, White House Adviser Kushner, Senator Talk Criminal Justice (Mar. 30, 2017)

Buzzfeed News, White House sends Jared Kushner to meet with top senators on improving the criminal justice system (Mar. 30, 2017)

– Thomas L. Root

LISAStatHeader2small

This Is Not The Gun You’re Looking For – Update for March 30, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LISAStatHeader2small

GUN CONTROL

The Scots had an expression for it: “possession is eleven points in the law, and they say there are but twelve.” But possession is not always a good thing – such as, for instance, if you’re one of a handful of Americans with a felony on your record (a mere 20 million people as of 2010).

gunfreezone170330In that case, federal law prohibits you from possessing a firearm. The statute in question – 18 USC 922(g) – is generally known as “felon-in-possession” although it’s more than that. The F-I-P statute is long on definitions as to what kind of crime is disqualifying, and what is a firearm – but the gist of it is that if you were ever convicted of a felony (or even some types of misdemeanors), you had better be standing on the twelfth point of the law. That is to say, you had better not be in possession of a firearm.

Which brings us to the story of Gilberto Ray Ramos. No doubt Gil is a man with a real problem. Earlier this week, the 8th Circuit upheld his conviction on multiple drug offenses. But in so doing, it reversed his conviction as a felon in possession.

Gil’s problems started with a fellow drug trafficker who, after being arrested for his own misdeeds, make the all-too-common and quite reasonable decision to help the police in hopes of reducing his sentencing. Among other tales the informant told the constabulary, he recounted that Gil had sent him a text message offering to sell him a .40 caliber handgun.

vibrator170330The authorities ultimately collected enough evidence to search Gil’s apartment, which he shared with a woman named Jasmyn. When they tossed the place, the police found a .45 caliber handgun in one of the two bedrooms, hidden under a mattress next to a pink vibrator. Men’s and women’s clothes were hanging in the closet. In the kitchen, the police found a water bill for the place, issued in Gil’s name.

When he was arrested, Gil was on parole from Arkansas. Before his trial in the federal case, Gil signed a waiver of hearing for Arkansas in which he admitted “that I have violated the following condition(s) of release as alleged[.]” Underneath, boxes labeled “#4 Laws” and “#5 Weapons” are marked.

The 8th Circuit held that the evidence wasn’t good enough. An F-I-P conviction may be based on constructive possession as well as actual possession. Constructive possession is where the felon knows the gun is present and can exercise control over the premises where the gun is located. Some cases have held that such dominion alone is good enough, because dominion permits the jury to infer the felon knew the gun was there.

goodpros170330But as the Circuit noted, dominion is not good enough to prove knowledge where the premises are occupied by more than one person. There, the government has to provide additional evidence of a link between the gun and the felon. “Otherwise,” the Court argued, “a father could be imprisoned for marijuana that his son has hidden in the house, or a wife could be jailed for her husband’s secret cache of illegal guns.”

Here, Gil jointly occupied the apartment with Jasmyn. As its extra evidence, the government pointed to the fact that there were men’s clothes in the closet of the bedroom where the gun was found. But, as the Circuit noted, “they also found women’s clothes in that closet and men’s clothes in the other bedroom’s closet. Further, the gun was found under the mattress next to a pink vibrator.”

The 8th concluded that “on this evidence, it is more than possible” that Gil was convicted for a gun Jasmyn had that he knew nothing about.”

Notguns170330The Court conceded that the government presented evidence that Gil had tried to sell a different gun to the informant and admitted in the Arkansas parole form that he violated a condition of parole involving “weapons.” But neither of those facts tied Gil to the particular gun – the .45 caliber pistol – that he was charged with possessing. “Although this evidence may demonstrate that Ramos had access to a gun,” the Court held, “it does not mean that he had access to this gun or that he even knew about it.”

United States v. Ramos, Case No. 16-1306 (8th Cir., Mar. 27, 2017)

– Thomas L. Root

LISAStatHeader2small

The Second Thief Gets It All – Update for March 28, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LISAStatHeader2small

VICTIM BASHING

A verity beyond peradventure is the notion that a thief should return that which he or she stole to the victims. It’s not punishment: if it were, there would hardly be a legal deterrence to theft. But punishment alone, which exacts a penalty that vindicates the rights of society, does not vindicate the rights of the victims. People who have stuff taken from them ought to get it back.

theft170328Federal law pays lip service to this notion in the Mandatory Victims Restitution Act, which requires a district court to order restitution of the property stolen or defrauded or otherwise taken from a victim. Ponzi schemers are ordered to pay back their victims, bank robbers are ordered to repay the banks, tax cheats have to pony up to the government. And under a separate statute, 18 USC 2259, children who have been the victims of child porn have been found to be entitled to compensation from defendants who happened to have their pictures in their computers, despite the fact that the defendants acquired the pictures from the Internet with no idea who the victim was.

But here’s the rub. The law says that property acquired through crime does not ever belong to the person to acquired it criminally. At common law this was fine, because title stayed with the lawful owner. But trust Congress to (greedily) mess things up: under 18 USC 981 (and a host of other statutes), stolen property is forfeited to the government.

So Conrad Conman beats 50 investors out of $1 million in his fraud scheme. Unlike every other fraudster out there, Conrad happens to live frugally on earnings from his day job as a bilge pump operator, so the $1 million he stole remains intact, stuffed under his mattress.

When the Feds bust him, the civil forfeiture statute permits the government to seize the $1 million. That money becomes federal property. The victims, all of whom would like their money back are left with nothing but the warm contentment of knowing that the million will be spent prudently and constructively by Uncle Sam.

FLU170328The district court will sentence Conrad to 10 years, and order him to pay the victims back from his bilge pump operator’s salary. After he does his time, the U.S. Attorney’s Office Financial Litigation Unit – an understaffed and read-headed stepchild desk at the USAO – will take over collecting restitution. It’s little wonder that as of the end 2014, the FLUs nationwide had simply thrown up their collective hands, declaring a whopping 93% of the $78 billion owed to victims as uncollectible. Every dime of that is money the victims will never see again.

So Conrad bilked the investors, and the government rides into the sunset with their money. Moral: if you’re going to be a thief, be a government.

All of which brings us to today’s case. Christine Bodouva was a financial officer for an architectural firm. She made off with about $127,000 that employees had contributed to the office 401(k) plan. After she was caught, she repaid every dime to the bilked employees before her sentencing.

But at sentencing, the district court ordered her to forfeit the $127,000 she had stolen to the government. She said, “What $127,000? I paid it back.” The district judge said she had no authority to offset the forfeiture against the restitution already paid, and ordered Chris to forfeit the $127,000 she no longer had to the government anyway.

Last week, the 2nd Circuit agreed, holding that “restitution and forfeiture are authorized by different statutes and serve different purposes — one of remediating a loss, the other of disgorging a gain.” The Circuit noted that restitution and forfeiture are creations of two distinct statutes, and “nothing in the statutory scheme permitted the district court to reduce the mandated criminal forfeiture order because the defendant also had to satisfy her obligation to pay restitution or had already substantially done so.”

To be sure, Chris’s victims were luckier than most, because they ended up in line ahead of Uncle Sam. They were made whole. At the same time, Chris was no worse off than if she had forfeited the $127,000 she paid back to the victims, because under the MVRA, she would have had to pay the victims restitution anyway.

gvttheft170328We respectfully disagree with the Circuit’s observation that “criminal forfeiture is a form of punishment. As such, it is distinct from restitution or other remedial actions, which are intended to return the victim and the perpetrator to the status quo that existed before the violation took place.” Christine’s sentence – a year and a day – was a punishment. The fine of $5,000 levied by her district judge is a form of punishment. The forfeiture, however, was done civilly in this case, making the observation that it, too, is punishment harder to accept. Even the language of the Judgment is questionable: the Court ordered Christine to “forfeit the Defendant’s interest” in the money to the government. But a defendant has no interest in stolen property: rather, it remains the property of the people from which it was stolen.

Bluntly put, a forfeiture is less of a “punishment” than it is a statutorily authorized government theft of that which has already been stolen. Were it otherwise, the government would see to it that victims were compensated first, and then the forfeiture applied later.

United States v. Bodouva, Case No. 16-3937 (2nd Cir. Mar. 22, 2017)

– Thomas L. Root

LISAStatHeader2small

7th Circuit Trusts BOP Healthcare… and 190,000 prisoners laugh – Update for March 27, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LISAStatHeader2small

L-O-L

Jeff Rothbard’s case made us laugh, and not in a good way.

Jeff has an unfortunate knack for fraud. He’s not likely to change his ways, given that he’s “an older man with serious health problems.”

costlydrug170327His district court sentenced him to 24 months, even though the Presentence Report suggested a home confinement and halfway house, due to Jeff’s particularly virulent form of leukemia. Jeff has stayed alive this long because he takes nilotinib, a one-of-a-kind drug that holds the cancer in check. He needs the drug every day: if the nilotinib is discontinued even for briefly, the leukemia will come roaring back.

There’s a catch. The drug costs about $125,000 a year.

On appeal, Jeff complained that incarceration could well kill him, because the BOP was unlikely to give him such an expensive drug. The BOP maintains a “formulary” (a listing) of drugs that its physicians are permitted to prescribe. Nilotinib is not on the list.

But the BOP told the district court that if one of its doctors believes that a patient needs a non-formulary drug, the doctor may prescribe it by following certain procedures. The BOP said a new inmate could continue on non-formulary drugs for four days after arrival, during which time he would be assessed. The BOP assured the court it could approve non-formulary drugs in a matter of hours, if need be. In fact, the BOP said it had received 10 requests by its doctors for nilotinib in the last six years, and all had been approved.

Last week, the 7th Circuit upheld the sentence, concluding it was reasonable. While the Circuit admitted that the BOP had “an incentive to be sparing with its orders for particularly expensive non-formulary drugs, such as nilotinib, there is no evidence… that it has done so… The record shows that BOP has ordered nilotinib itself on ten other occasions, evidently in recognition of the fact that it might be essential (as it apparently is for Rothbard).”

Of course, what the Circuit overlooked was that nilotinib was approved the ten times a BOP doctor actually requested it. That stat overlooks how many time a prisoner needed the drug but the doctor at the institution refused to make the request to the Central Office.

BOPdocs170327In this case, the 7th admitted the decision was a close one because the “BOP is not willing or able to pre-commit to nilotinib for Rothbard, before he has gone through the intake examination at the prison medical center. Although it might be sensible in cases such as this one for BOP to have some way of examining people before they report, that is not its practice and we are not persuaded that the lack of a pre-report examination is independently actionable. In addition, we cannot find fault with BOP’s reservation of the right to conduct its own medical examination.”

What made us laugh was the Court’s warning to the BOP. It said that if Jeff “shows up at a BOP facility and discovers that the responsible people are dragging their feet in a way that deprives him for any significant time of his nilotinib, or if the BOP evaluator (contrary to all of the evidence we have seen) takes the position that a medically suitable alternative from the formulary exists, Rothbard is free to use the BOP’s grievance procedures to complain about any such problem.”

Now there’s a threat to make the BOP director quake in his boots. If Jeff is denied the drug he cannot live without, he can file his BP-8. BP-9, BP-10 and BP-11. Then after the 230+ days it takes to complete the largely futile BOP grievance procedures, if Jeff has still not gotten the drug, he can file a habeas corpus action (provided he’s still alive).

remedy170327In a sharp dissent, Judge Richard Posner showed no confidence in the BOP: “Essentially the prosecution, the district court, and now my colleagues, ask that the Bureau of Prisons be trusted to give the defendant, in a federal prison, the medical treatment that he needs for his ailments. Yet it is apparent from the extensive literature on the medical staff and procedures of the Bureau of Prisons (a literature ignored by my colleagues) that the Bureau cannot be trusted to provide adequate care to the defendant.”

This decision ought to read by anyone who has a medical issue with the BOP.

United States v. Rothbard, Case No. 16-3996 (7th Cir., March 17, 2017)

LISAStatHeader2small

THE LESS SAID, THE BETTER

Ryrica Custis, a Virginia prisoner, had lost his toes in a pre-prison accident. The prison assigned him to an upper bunk anyway, and of course he fell off the ladder trying to climb in. He filed an inmate complaint in the grievance system, but the prison grievance manual listed the wrong address to which to send it. By the time Ry remailed it to the right place, the prison said he was too late.

Ry sued in federal court for injuries he had suffered. Under the Prison Litigation Reform Act, inmates may file federal suits about prison conditions only if they first exhaust administrative remedies in the prison grievance system. In Jones v. Bock, a 2007 case, the Supreme Court held that failure to exhaust remedies is no more than an affirmative defense. In other words, if the prison fails to raise it in its answer, the failure to exhaust is waived and the suit may proceed.

Exhaustion170327After Jones, the 4th Circuit held in Moore v. Bennette that if the inmate did not plead in the complaint that he had exhausted remedies, the court could dismiss it “so long as the inmate is first given an opportunity to address the issue.” Some district courts, like the one Ry had sued in, started acting on their own to dismiss inmate suits where the courts deemed that the inmate had not exhausted remedies.

Last week, the 4th Circuit put a stop to that practice. It explained that in Moore, the district court did not raise exhaustion sua sponte (on its own motion). Instead, the prison administration raised it as an affirmative defense. The Circuit held that Jones means that (1) an inmate does not have to say anything about exhaustion in his complaint, and (2) unless the inmate actually admits in his complaint that he did not exhaust remedies, district courts may not dismiss the case on its own. To the extent that 4th Circuit decisions have said otherwise, they were overruled.

Custis v. Davis, Case No. 15-7533 (4th Cir., Mar. 23, 2017)

– Thomas L. Root

LISAStatHeader2small

Legal Shotgun Misses in Missouri ‘Crime of Violence’ Case – Update for March 23, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LISAStatHeader2small

MISSOURI UNLAWFUL USE OF GUN STATUTE STILL A VIOLENT CRIME

The first appellate casualty relying in part on the Supreme Court’s March 6th Beckles decision was reported this week.

gunb160201Steve Hudson pleaded guilty to felon-in-possession of a gun under in 18 U.S.C. 922(g). The district court enhanced Steve’s sentence under USSG 2K2.1(a)(4)(A) based on Steve having a prior conviction for a “crime of violence,” that being a conviction for unlawful use of a firearm under Missouri Rev. Stat. § 571.030.1(4). The district court relied on an 8th Circuit 2009 holding in United States v. Pulliam, that a violation of that Missouri statute is a “violent felony” for purposes of the Armed Career Criminal Act.

In Pulliam, the 8th found the same Missouri statute to be a crime of violence under the ACCA, because the crime fell under the Force Clause, that is, it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Pulliam held that “[i]t goes without saying that displaying an operational weapon before another in an angry or threatening manner” fits the Force Clause to a “T.”

In arguing that Pulliam should be overruled, Steve took a shotgun approach (appropriate for a gun case, perhaps), arguing Pulliam has been superseded by recent Supreme Court decisions in Johnson v. United States, Curtis Johnson v. United States, Descamps v. United States, and Mathis v. United States.

violence160110The 8th Circuit swept aside his arguments. In Johnson, the Court held that a portion of the definition of “violent felony” in the ACCA known as the Residual Clause. Relying on Beckles, the Circuit held Johnson did not apply: “Although the definition of “crime of violence” under the guidelines until recently included an identically-worded residual clause, the guidelines are not subject to constitutional vagueness challenges.”

More to the point, the Circuit noted, Pulliam was a Force Clause case, so that even without Beckles, Johnson would not have applied.

The Circuit agreed with Steve that the Curtis Johnson case addressed the Force Clause, holding that the Clause “requires the use, attempted use, or threatened use of ‘violent force—that is, force capable of causing physical pain or injury to another person’.” But even so, the Missouri statute fit under the Force Clause: Steve was convicted of “exhibiting a weapon that is readily capable of lethal use in an angry or threatening manner.” “Lethal” the Court said, means “capable of causing death.” Therefore, the Court said, “threatening use of such a weapon necessarily involves a threatened use of violent force, not merely an unwanted physical touching. Pulliam, therefore, is consistent with Curtis Johnson.”

anger170322Steve’s final attack was that because the Missouri statute would support a conviction if the gun had been displayed in either a threatening or an angry manner, the statute set forth alternative elements for committing an offense, and categorically the crime was too broad to fit in the Force Clause. His argument, apparently, was that Mathis prohibited the court from figuring out whether the crime had been committed in an “angry” manner or in a “threatening” manner.

The 8th Circuit rejected the argument. Pulliam, it said, “concluded that both means of committing the offense (an angry display or a threatening display) involve the requisite threatened use of force.” Thus, no matter how Steve was convicted – “angry” or “threatening” – the Missouri crime counted as a crime of violence to enhance his federal sentence.

United States v. Hudson, Case No, 15-3744 (Mar. 21, 2017)

– Thomas L. Root

LISAStatHeader2small

Vitamins Not Healthy For Illinois Man – Update for March 22, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LISAStatHeader2small

SUPREMES BRING 7TH CIRCUIT INTO LINE WITH EVERYONE ELSE; LEGAL COMMUNITY YAWNS

Earlier this week, the Supreme Court ruled that a man who spent 48 days in jail on charges fabricated by the police could sue under the 4th Amendment for an unreasonable seizure, that being the seven weeks he spent in stir.

Dangerous controlled substance?
       Dangerous controlled substance?

Elijah Manuel was riding in a car pulled over for a turn-signal violation. He complained that the Joliet, Illinois, police beat him and called his racial epithets. The police found a vitamin bottle containing pills (amazing thing, that). When field tested, the pills were found to be negative for illegal drugs, but that didn’t stop the officers from claiming the pills were Ecstasy and arresting Elijah anyway.

The pills tested negative again at the station, but the police report falsely said otherwise. A magistrate found probable cause, and kept Elijah locked up. A short while later, a grand jury – relying on the false police reports and testimony – indicted him.

Eventually, the state crime lab report came back reporting the pills were vitamins. Even then, it took a few weeks for the district attorney to dismiss charges and set Elijah free.

The issue before the Supreme Court was whether a claim for malicious prosecution could be brought under the 4th Amendment even after “legal process” – that being the magistrate’s finding of probable cause – issued. The 7th Circuit said it could not be: once legal process issued, such a complaint had to be brought under the 5th Amendment.

false170322In the event readers wonder why we don’t always report on Supreme Court cases like this one, the reason is this: Ten out of 12 federal circuits already held that Elijah’s 4th Amendment claim worked even after legal process issued, and in fact, even after a grand jury indictment, because legal process, like the initial seizure at the time of arrest, is unreasonable if it is based on fabricated evidence. The 8th Circuit had never ruled on the issue, and the 7th Circuit – ruling in Elijah’s case – got it wrong. As far as significance, this case is a yawner.

The decision includes dissents by Alito and Thomas, as well as a number of subsidiary issues orbiting the majority opinion like a legal planetary system. The case only got to where it is today because Elijah waited to the very last minute to file the case, and in fact missed the deadline to sue for false arrest, but not to sue for continued detention. The Justices debate the proper starting point for calculating the statute of limitations, a debate that has a kind of number-of-angels-dancing-on-the-head-of-a-pin quality to it.

At most, Manuel v. Joliet provides a clear basis for an additional constitutional claim – the 4th Amendment – when someone is locked up on bogus charges. It does not, however, really plow much new ground.

Manuel v. Joliet, Case No. 14-9496 (Supreme Court, Mar. 21, 2017)

– Thomas L. Root

LISAStatHeader2small

Some Legal Kibbles – Update for March 20, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

kibbles170320Today, we offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…

LISAStatHeader2small
US ATTORNEYS TO FOCUS ON VIOLENT CRIME, WHICH INCLUDES DRUG TRAFFICKING

There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”

Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.

violent160620Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.

Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.

The Crime Report, At ‘critical moment’ under Trump, report gives hard facts on incarceration (Mar. 14, 2017)

The Trace, Meet the hardliner Jeff Sessions picked to carry out his violent crime crackdown (Mar. 15, 2017)
LISAStatHeader2small

WE’VE GOT YOUR NUMBER

The U.S. Sentencing Commission last week released its 21st annual Sourcebook of Federal Sentencing Statistics, covering fiscal year.

stats170320The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).

Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:

•   the number of cases ending with guilty pleas remained steady at 97%

•   offenses included 32% drug, 30% immigration, white-collar (including fraud) 13%, guns 11%, child porn 3%.

•   14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.

•  two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.

• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).

•   in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.

U.S. Sentencing Commission, Sourcebook of Federal Sentencing Statistics 2016  (Mar. 12, 2017)
LISAStatHeader2small

PLEA BREACHES AND PLAIN ERROR

Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.

But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.

betray170320Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.

Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”

When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.

United States v. Kirkland, Case No. 16-40255 (Mar. 17, 2017)

– Thomas L. Root

LISAStatHeader2small

 

Cosmic Justice in the 5th Circuit – Update for March 17, 2017

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LISAStatHeader2small
INEFFECTIVE ATTORNEY HAS INEFFECTIVE ATTORNEY

irish170317Defendants who hired Abe (call me “Anthony”) Fisch for their criminal defense hardly enjoyed the luck of the Irish. Anthony and his sidekick – former FBI informant Lloyd Williams – would approached defendants with pending criminal charges, explaining to them that if they paid Anthony vastly inflated legal fees up front, he would use some of the money to pay off high-ranking federal officials to get the cases dismissed or settled on really good terms.

Some may find the following shocking: Anthony and Lloyd had no government contacts on their bribery payroll. Instead, they just took the money and run.

It worked for awhile, with anxious defendants and their families parting with over $1.5 million to the deceptive duo. The record included tales of shoeboxes with $450,000 being left on the seat of Anthony’s car. But it all fell apart finally, and Anthony, Lloyd and (for good measure) Anthony’s wife all got charged.

Williams had a better lawyer than he deserved, because he pled guilty quickly. Anthony and his wife went to trial. Wifey got acquitted, but Anthony went down hard, getting 15 years. He appealed on a host of issues, but earlier this week, the 5th Circuit rejected them all.

order170317All but one. Anthony – a defense attorney who talked countless clients out of reasonable plea deals because he was allegedly bribing their way out of trouble, and who discouraged clients from preparing for trial for the spurious reason that their cases were going to be thrown out – complained to the district court that his defense attorney was ineffective. If so, this would truly be cosmic justice. But even lawyers who made a career out of screwing criminal defendants are entitled to effective counsel.

philosophy170317Anthony filed a motion before sentencing claiming his trial attorney was ineffective by (1) failing to interview key witnesses, including FBI agents; (2) failing to investigate potential defenses; (3) failing to introduce impeachment evidence; (4) failing to make offers of proof to admit exhibits; (5) failing to request proper jury instructions; and (6) refusing to ask for a trial continuance after counsel fell ill during trial and underwent surgery. Anthony supported his claims with affidavits and text message conversations between himself and counsel.

lawyer15170317The district court threw out the motion without requesting further briefing or holding a hearing. On appeal, the 5th Circuit reversed the dismissal of the claims. The Court said, “We conclude that the factual issues underlying Fisch’s claims of ineffective assistance cannot be determined on the current record. The Supreme Court has noted that such factual issues are best resolved by the district court on 28 U.S.C. § 2255 review. See Massaro v. United States, 538 U.S. 500, 505 (2003). Consequently, we decline to address Fisch’s ineffective assistance claims on direct appeal. Nothing about our affirmance of Fisch’s convictions affects Fisch’s right to bring ineffective assistance of counsel claims—including those that were stated in Fisch’s motion below—in a timely § 2255 proceeding.”

Therefore, Anthony will get another bite of the apple in a 2255 motion. We have one prediction: whatever his trial counsel’s failings (if there were any at all), they had nothing on the havoc Anthony deliberately wreaked on his clients.

United States v. Fisch, Case No. 15-20663 (5th Cir., Mar. 14, 2017)

– Thomas L. Root

LISAStatHeader2small