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

WHITE HOUSE COUNSEL REVEALS ARBITRARY WORLD OF OBAMA COMMUTATIONS

You can pay your money and take your chance. From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to over 1,700 federal prisoners. From another, Obama squandered chances to make needed, permanent chances in the federal criminal justice system, choosing instead to sprinkle exhibitions of mercy one a few lucky inmates, done in such a way as to burnish Obama’s image rather than provide any responsible leadership.

Chief among our complaints was that even if you’re a clemency cheerleader, you have to be profoundly disappointed that Obama accomplished so little, and so much less than he and his minions confidently predicted in 2014. Former Attorney General and Obama buddy Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners.

It wasn’t for lack of raw material. Obama received more petitions for clemency than any recent president. And maybe that was the problem. In a recent interview, former White House Counsel Neil Eggleston revealed that Obama himself may have been the bottleneck:

I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”

Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”

He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out.

He felt strongly that this was a gift, and the gift had to be earned.

Obama’s hagiographers will undoubtedly hail his obsession with the details of each of the 1,700+ commutations as evidence of the depth of commitment the President had to the commutation program, the extent of his compassion, the whatever. The plain fact is that America’s chief executive showed an unnatural preoccupation with the minutiae of commutation, hand-picking the winners and losers when his time should have been spent on larger matters. The boss should set out some broad principles – like the White House did with the Clemency Project – and then simply delegated authority to trusted staffers to carry it out.

For that matter, Eggleston’s offhand comment that Obama “felt strongly that this was a gift, and the gift had to be earned” reveals much. Holder told the American Bar Association in 2014 that the clemency initiative was intended to “correct the disparities” that were orphaned when the Fair Sentencing Act of 2010 was passed without a retroactivity provision. But Eggleston’s statement suggests that the President saw it as more Messianic, that he was empowered to magically change lives, and that he would bestow the gifts only on those he deemed worthy. Deciding who was worthy and who was not thus because as arbitrary as most other acts of God.

Eggleston seems defensive to claims of arbitrariness:

I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew.

All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, ‘How can this be?’”

That, of course, is exactly what the folks in prison – including people with horrific drug sentences and excellent institutional records – are wondering. We had one unsuccessful inmate write to us that his disciplinary record was spotless, while another inmate there received work that Obama had commuted his sentence while siting in the Special Housing Unit because of a serious rules infraction.
The inmate who wrote to us asked “how is that right?” The answer, of course, came from a former Democratic president, Jimmy Carter, who famously said, “Life is unfair.”

The inmate’s mistake, of course, was in thinking that the clemency program was ever about justice and fairness for them. It wasn’t. It was about Obama and his legacy.

In that, the clemency program was quite successful.

While anecdotes do not statistics make, we cannot help but note that one of the carefully vetted commutations – Robert Martinez-Gil, whose life sentence was commuted because Obama found he had “turned [his] life around” – just got arrested in San Antonio with a kilo of cocaine powder. He was free for about 18 months. At minimum, this does not speak well for the superiority of Obama’s analytical prowess. 

The Marshall Report, The Man Who Ran Obama’s Clemency Machine (Feb. 14, 2017)

– Thomas L. Root

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

WITNESS CAN’T BE ASKED IF OTHER WITNESSES LIED

The Government says Nelson Pereira had a sweet gig. As a baggage handler for an airlines, Nelson was able to get certain suitcases without owners flown to Newark from Puerto Rico. The Feds said the duffels were full of cocaine, and Nelson and his buddies would intercept them in the baggage area, insuring they never slid onto the baggage carousel, where the wrong kind of DEA dog might sniff them.

The indictment said the scheme went on for a decade. When heads started to roll, two defendants caught up in the scheme fingered Nelson.

Trial came down to the government informants’ word against Nelson’s. The prosecutor was hard on Nelson, pointing out repeatedly during cross-examination that Torres and Olmo – the two government witnesses – told a story very different from Frank’s version. Some might suggest that the questioning came close to badgering, but the thrust of it was the prosecutor trying to get Nelson to call the other witnesses liars:

Q. Because you didn’t know Gerardo Torres, the fact that he met you, Frank Pratts [sic] . . . that never happened either; right?
A. No. It did not happen.
Q. So that’s not correct then. That was another thing that Mr. Torres made up; right?
Defense Attorney: Your Honor, questions as to what Mr. Gerardo Torres made up or didn’t make up, it’s like bringing something out.
Court: Overruled.
Q. That’s something else that Gerardo Torres made up and put against you.
A. Yes. It’s a good story, but it didn’t happen.

And at another point, the district court encouraged the questioning:

Q. [B]ut you’ve never seen Carlos Camacho before until you got to court; right?
A. Correct. I never met Carlos Camacho.
Q. So that’s something he made up; right?
A. You’re answering your own question.
Q. No. I’m asking you what the question is.
Court: Let’s not get into an argument here. The question is [if that’s] something that[] Mr. Torres made up.
Defense Attorney: But he is not the person to say that Mr. Torres made it up or not. He is not Mr. Torres.
Court: Overruled. . . . If it’s not true, then it’s something Mr. Torres made up.
A. Correct. It’s a lie.

Witnesses testify falsely all the time. But that does not mean they’re liars. Lack of perception, lack of recall… it happens. As Dr. Judith Loftus, a nationally recognized expert on eyewitness testimony, put it:

Why, after all, would they lie? Ah, there’s the word – lie. That’s the word that gets us off track. You see, eyewitnesses who point their finger at innocent defendants are not liars, for they genuinely believe in the truth of their testimony. The face that they see before them is the face of the attacker. The face of innocence has become the face of guilt. That’s the frightening part – the truly horrifying idea that our memories can be changed, inextricably altered, and that what we think we know, what we believe with all our hearts, is not necessarily the truth.

But everyone understands “lie.” Getting a defendant to lash out at witnesses whom the jury presumes have no axe to grind makes the defendant look guilty. Name-calling make him less sympathetic. Nelson’s prosecutor kept returning to the theme, because the court overrode the defense objections to it, and Nelson was willing, after a fashion, to play ball.

Fortunately, the First Circuit was not. Last week, the Court reversed Nelson’s conviction.

The court held that “counsel should not ask one witness to comment on the veracity of the testimony of another witness… Underlying this rule is the concept that credibility judgments are for the jury, not witnesses, to make… These types of questions are also improper because Rule 608(a) of the Federal Rules of Evidence “does not permit a witness to testify that another witness was truthful or not on a specific occasion.”

Practically speaking, “was-he-lying” questions “ignore other possible explanations for inconsistent testimony . . . which put the testifying defendant in a ‘no-win’ situation of . . . either accusing another witness of lying or undermining his or her own version of events.” The questions are “argumentative, and often their primary purpose is to make the defendant appear accusatory. The danger is that the prosecutor first forces the defendant to label government witnesses as liars who are making up stories, and then, after laying this groundwork, seeks to convince the jury that it is the accusatory defendant—and not the prosecution witnesses—who is unworthy of belief.”

The error in Nelson’s case was not harmless. The Circuit noted the dearth of physical evidence, and noted that because the government witnesses’ testimony was not corroborated – and because they had an arguable motive to lie – the eight occasions on which the government pushed Nelson to call them liars deprived him of a fair trial.

United States v. Pereira, Case No. 15-1669 (1st Circuit, Feb. 3, 2017)

– Thomas L. Root

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

WE’RE AT A “LOSS” TO EXPLAIN IT

Tom Evans was a Colorado real estate developer who raised a pot full of investor money to renovate an apartment complex. The deal was completely legitimate, but rather risky.

When the deal started to go bad, Tom dumped $4.5 million of his own money into the project. Unfortunately, he also started commingling his money with the investors’ funds, and lying to the investors and bankers about how the deal was going.

When his fraud was discovered in 2007, a receiver took over the project. The receiver managed to convince investors to invest good money after bad to save the project.  Alas, the rescue did not work, and the whole deal collapsed.

Tom was convicted of fraud, and sentenced to 168 months, chiefly because the district court held him responsible for a $12.3 million loss. The 10th Circuit reversed the sentence and sent the case back, telling the district court to determine “the reasonably foreseeable amount of loss to the value of the securities caused by Mr. Evans’ fraud.” The district court was “disregard any loss that occurred before the fraud began and account for the forces that acted on the securities after the fraud ended.”

In order to exclude harm preceding the fraud, the district court had to determine “the value of the securities at the time the fraud began.” But on remand, the government threw up its hands and said it could not do that. So the district court decided the investors had lost over $4 million in equity, and resentenced Tom to 121 months.

Last Friday, it was the 10th Circuit’s turn to throw up its hands. The Circuit said it had clearly told the district court what had to be done – called “the law of the case” – and the district court was not entitled to go off on a frolic by ginning up a new theory on “loss of equity.”

The problem was simply this. Before Tom committed any fraud at all, the apartment project was circling the drain. After the fraud ended, the receiver enticed investors to toss even more money on the burn pile. The issue, then, was how much of the total loss was because of the fraud instead of because of external factors. The Court complained that the government’s inability to figure out the value of the investors’ stake in the deal on the day before the fraud began didn’t excuse complying with the Court of Appeals had ordered.

The district judge had said that she would have given Tom 121 months even if her Guideline calculation was too high. She pounded Tom at sentencing, saying “You lied to your victims, you stole their funds, and you failed to manage the investment properties in the manner you promised.” She complained that she could not find Tom responsible for “the full $12 million he stole from investors”

The 10th Circuit was not impressed with the district court’s alternate sentence. The sentencing judge’s “finding was clearly erroneous,” the Circuit said, “for there is no evidence that Mr. Evans stole money from investors. To the contrary, Mr. Evans contributed approximately $4.5 million of his own money to keep the business afloat. Mr. Evans’s misrepresentations could conceivably represent a form of “stealing” if the misrepresentations had caused investors to lose money. But… the government has been unable to prove loss to investors caused by the fraud.”

The appellate panel sent the case back for resentencing, and ordered it be heard by another judge. While the 10th noted – as appeals courts always do in cases like this – that it was sure the judge was not personally biased, it nevertheless noted several reasons for assigning a different judge:

First, the district judge repeatedly stated that Mr. Evans deserved a sentence enhancement, saying that it was unfortunate that the loss computation was not higher…. The judge added that she believed Americans “do not take white collar crime seriously enough… Even after we rejected the original loss calculation, the district judge reiterated her belief that Mr. Evans had “stole[n]” approximately $12 million and expressed regret concerning the inability to order restitution in that amount… Thus, we could reasonably expect our disposition to cause difficulty on remand.

Because the government had its chance prove loss but failed to do so, the Court ordered that a new sentence would not include any enhancement for loss or number of victims.

Tom probably knew good news was coming. After this case was argued last November, the Court of Appeals ordered his release on bail on December 12th. He’s served three years, considerably more than what his corrected Guidelines suggest. Interestingly, Judge Neil Gorsuch was on the panel that considered the briefs and heard the argument. He recused himself before the judgment, because of his nomination to the Supreme Court only four days before the opinion issued.

United States v. Evans, Case No. 15-1461 (10th Circuit, Feb. 3, 2017)

– Thomas L. Root