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

THE DEATH OF OUTRAGE

For two weeks last year, the FBI ran one of the largest purveyors of child pornography on the Internet. And the courts say that’s OK.

After arresting the North Carolina administrator of The Playpen, a child-pornography Internet bulletin board on the “dark web” (accessed through a Tor browser), agents seized the site’s server and moved it to Virginia warehouse. From there, they ran “Operation Pacifier,” a computer-hacking operation of unparalleled scope that has thus far led to criminal charges against almost 200 people. During the FBI operation, plenty of child porn was available to the site’s members. It’s just that at the same time the smut was being transmitted, agents included a secret “Network Investigative Technique,” or NIT, to invade their users’ computers, gather personal information and send it back to the FBI.

At the time the FBI took control of the Playpen website, the site was at least six months and had over 158,000 members, 95,000 posts, 9,333 total topics, and over 1,500 unique users visiting the website daily. During the two-week period when the FBI operated the website, the numbers did not change.

In fact, some court exhibits suggest The Playpen site performed substantially better while under the FBI’s control, with a number of users even commenting on the improvements. The defense for the man accused of being the original administrator of Playpen says these improvements led to the site becoming even more popular. “The FBI distributed child pornography to viewers and downloaders worldwide for nearly two weeks, until at least March 4, 2015, even working to improve the performance of the website beyond its original capability,” Peter Adolf, an assistant federal defender in the Western District of North Carolina, wrote in a motion to have his client’s indictment thrown out for outrageous government conduct. “During those two weeks, the website’s membership grew by over 30%, the number of unique weekly visitors to the site more than quadrupled, and approximately 200 videos, 9,000 images and 13,000 links to child pornography were posted to the site.”

The investigation has sparked a social and legal controversy over the FBI’s tactics and the impact on Internet privacy, as well as over the agency committing the more serious crime of distributing child porn in order to catch people committing the less serious crime of possessing child porn. Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

The U.S. District Court for the Eastern District of New York is the latest court to enter the fray, last week turning back a defendant’s motion to dismiss the kiddie porn possession charge against him because of outrageous government conduct. Judging by the court’s logic, outrage is dead.

The court’s reasoning could put a knot in a pretzel stick. So what if the FBI could have accomplished its investigative goals without allowing for the actual distribution of child pornography and the attendant harm to the child victims? Law enforcement decisions on how to investigate, the court held, are entitled to deference. In other words, if cops want to break the law in order to catch lawbreakers, we must let them do so. If they want to commit a greater crime in order to catch people committing lesser crimes, that’s their right.

The District Court found “clearly unfortunate and undesirable that the government’s operation of the Playpen website allowed child pornography to continue to be accessed and shared, and for child victims thereby to continue to be victimized,” but it was not outrageous. After all, the Court reasoned, the FBI did not post anything to the Playpen website, but simply let it continue to operate. Plus, the investigation let the FBI sweep up 26 child abuse victims, 35 “hands on” child sexual offenders, and 17 kiddie porn child producers.

Of the foregoing, rescuing child abuse victims comes the closest to being an end that justifies the means. But the district court’s concluding rationale is troubling. The FBI’s conduct was not outrageous, the court ruled, because it was not permitting a crime that would not otherwise occur. No one can prove that the website’s users would not just be getting their porn somewhere else if the Playpen website had been shuttered. After all, the court noted, a lot of other people distribute kiddie porn.

The same reasoning would permit the government to take over a heroin distribution operation, and to continue to sell eight-balls in order to nail end users on possession charges. The buyers are dopeheads– if they don’t buy it from the government sting, they’ll just get it on the next street corner. Or maybe the FBI will next run a string of prostitutes in order to identify johns. The government could take over a poaching operation, and continue shooting elephants in order to identify ivory buyers. A creative U.S. Attorney and some enthusiastic FBI agents could have no end of fun breaking the law with impunity, all for the pleasure of yelling “gotcha.”

The Court seemed to chastise the defense for the surprising notion that committing greater federal offenses to nab people committing lesser ones is wrong. “Built into Defendant’s argument is the counter-intuitive, and certainly unproven, assumption that Playpen users, once thwarted from accessing child pornography through that website, would simply give up and stop engaging in this conduct. Though Playpen might have been, as Defendant claims, one of the larger websites of this type, it certainly was not the only one, and there is no evidence upon which the Court can conclude that individuals interested in child pornography would have been so easily deterred from obtaining it by the shutting down of the Playpen website.”

There you have it. As long as there is a criminal element out there, the government may duplicate it, because courts will assume absent proof to the contrary that the drug user will buy her meth from someone else, the john will drive by a different street corner for his sexual assignation, the child porn consumer will troll the dark web until he finds another site. As long as a defendant cannot prove a negative, the government can commit such crimes as it likes while inducing others to break the law as well.

The Court notes that a defendant must show that the government’s conduct caused him — and not just anyone — to commit crimes that otherwise would not have committed. Here, the defense did not show that the FBI’s two-week operation of the Playpen website caused him to commit child pornography crimes and that he otherwise would not have done so. The defendant had been a Playpen member for 3-½ months, and spent under 3 hours on the site during that period (an average of 1 minute 40 seconds a day).

The flaw in this standard, of course, is that it means that outrageous conduct never occurs unless a defendant is induced to commit a crime he would not otherwise have committed, a conflation of outrageous conduct and entrapment. Here, the government victimized children by distributing kiddie porn – and when the tables are turned, the government is quick to condemn even the briefest and de minimis possession of such images for the harm that their production and distribution cause kids – in order to catch possessors. What the government did is a 15-year mandatory minimum sentence offense; possession is a five-year offense.

The court observed that “the standard for demonstrating ‘outrageous’ governmental conduct is demanding for a reason.” It must be “so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction,” and must “shock the conscience.”

We’re unsure why this conduct does not amply qualify.

United States v. Kim, Case No. 16-CR-191 (EDNY, Jan. 27, 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.

BLACK SWANS AND HOPEMONGERS

For many years before the 2010 psychological thriller movie, finance types knew that “Black Swan” was a metaphor describing an event that comes as a surprise, has a major effect, and is often inappropriately rationalized after the fact with the benefit of hindsight. The term was coined because a black swan was a creature that supposedly did not exist. Even after ornithologists found that such creatures do in fact exist, the term survived.

A far outlier of a district court decision is suddenly hot again, and for all the wrong reasons is being inappropriately rationalized with hindsight – or worse. We’ve had several inquiries about what inmates are calling “the Holloway Doctrine” in the last week. Compared to the two questions about Holloway we fielded in the last two and half years – the topic is suddenly “trending,” as they say in social media.

In July 2014, one of our favorite federal district court judges, the since-retired EDNY Judge John Gleeson, engineered the release of a mutt named Francois Holloway, who had been locked up back in the early 1990s for three carjackings. The problem with Frank’s crimes – besides the obvious that carjacking is illegal, dangerous and impolite to the driver – was that he liked brandishing a gun when he grabbed the cars. Thus, when Frank was indicted, the grand jury included three stacked 18 USC 924(c) counts.

Conviction on a 924(c) count carries a mandatory minimum of least 5 years, and those years must be consecutive to any other counts. What’s worse, a subsequent 924(c) conviction – even in the same case – carries a mandatory 25 years consecutive to any other count.

The government offered Frank a plea deal of about 11 years (by dropping two 924(c) counts), but in Frank’s worst decision since his idea to start carjacking, he turned it down and took them to trial. When the dust settled, Frank got a sentence of 57 years and change.

Frank filed a post-conviction motion under 18 USC 2255, but it was shot down in 2002. Twelve years later, he filed an F.R.Civ.P. 60(b) motion to reopen the 2255, rehashing the prior 2255 issues and arguing that a couple of new, non-retroactive Supreme Court cases should change the outcome.

In any other courtroom in America, a Rule 60(b) filed a decade after the underlying 2255 had been denied would have gone straight to the judicial shredder. But Judge Gleeson had always been troubled by the 57-year sentence the law required him to impose on Frank. In 2008, he had asked the EDNY U.S. Attorney to cut Frank a break. The U.S. Attorney refused. When the new Rule 60(b) motion arrived on his desk, the Judge called the U.S. Attorney again.

This time, the U.S. Attorney was an Obama appointee, Loretta Lynch (who became Obama’s Attorney General in late 2014). When Gleeson asked for her agreement to his granting Frank’s Rule 60(b), she agreed.

Frank’s family packed Judge Gleeson’s courtroom, the Judge cut his sentence to 20 years (which he had already served), and Frank walked out the courthouse door to freedom. A Disney moment, to be sure.

But the case is truly a Black Swan: something completely unexpected, clearly a big and wonderful event for Frank, and a decision without any precedential value or relevance to any of the other 189,219 inmates in federal custody.

Gleeson certainly worked justice, but he did not follow the law. First, the district court had no authority to grant a Rule 60(b) motion to set aside the judgment in the 2255 proceeding. Such motions are almost always considered second-and-successive, meaning the district court doesn’t even have jurisdiction to hear the motion, let alone grant it. In fact, the word “jurisdiction” doesn’t even appear in Judge Gleeson’s 11-page decision.

Second, even if Judge Gleeson had jurisdiction to hear the 10-year-too-late Rule 60(b) motion, the pleading was absolutely meritless. Gleeson said as much in his order.

Third, even if there was merit to the Rule 60(b) motion, nothing in its arguments supported vacating two 924(c) counts but leaving everything else the way it was.

But Gleeson was a wise judge, and he also knew that a district court can order anything it wants to order if the parties are all on board. Unless a party to case files a timely notice of appeal to challenge a decision, the order becomes final. Gleeson could have ordered the Government to buy Holloway pizza a day for the rest of his life, and – once the order was no longer appealable – Trump would still be delivering Domino’s to Holloway right now.

After Holloway, Anthony Luis Rivera got his “old law” sentence of 60 years cut in half by an Oklahoma court. The record is pretty thin on this decision, except we believe his lawyer’s colorful but featherweight motion was the origin of the term “Holloway Doctrine” to explain Gleeson’s “one-off” sentence cut for Frank Holloway.

What we do know about Rivera is that he had two “big law” firms, one a national firm that represents some of the largest corporations in the world, shilling for him pro bono. That was extraordinary, suggesting a fascinating back story which we don’t know. Tony’s “stream of consciousness” motion to vacate his life-without-parole sentence for cocaine distribution – imposed on him in the pre-Guidelines days of 1985 – was as long on background on the inmate as it was short on legal argument. Notably, the motion asked the district court to follow the Holloway Doctrine, which it argued “recognizes that district courts have the discretion, inherent in our American system of justice, to subsequently reduce a defendant’s sentence in the interests of fairness — even after all appeals and collateral attacks have been exhausted and there is neither a claim of innocence nor any defect in the conviction or sentence — when it has clearly been demonstrated that the original sentence sought by the United States and imposed by the court (even when mandated by law) is revealed to be disproportionately severe.”

This is palpable nonsense. Gleeson did not so hold, but rather used the vehicle of a pending Rule 60(b) to pull off a legal sleight-of-hand with the help of a pliable United States Attorney. In Tony Rivera’s case, besides the obvious fact that he was serving an “old law” sentence having nothing to do with the mandatory Sentencing Guidelines, the judge’s order vacating one of the two consecutive 30-year sentences mentions nothing about Holloway.

The final problem with Rivera is one anything who thinks the Holloway Doctrine is a watershed legal case should remember. Supreme Court decisions bind all lower courts. Decisions of the circuit courts of appeal bind all of the district courts in their respective circuits, just not other circuit courts and not district courts located elsewhere. But District court decisions – such as Holloway and Rivera – bind absolutely no one except the parties in the particular action.

Judge Gleeson did not create a Holloway Doctrine for the simple reason that he could not.

None of this has stopped some people in the “hope-monger” industry from soliciting inmates. They sell false hopes like snake oil, strapping inmates (and too often, their families) to pay for motions that are more fit to line parakeet cages than they are to land on judges’ desks.

One email an inmate brought to our attention – from a “paralegal” firm, whatever that may be – trumpets that

if you were planning on filing a Clemency Petition you might still do so, but a more effective way of filing for early release may be the Holloway Doctrine. Request your free look to find out.

More effective way than what? Sending the Judge candy for Valentine’s Day? Baking a file into a cake?

The plain truth is that all an inmate needs to do get a break like Frank Holloway, is to (1) start out with stacked mandatory minimum sentences that a judge was forced to impose; (2) have a sentencing judge like John Gleeson, who complained at the sentencing that what he or she was imposing was too harsh; (3) find a U.S. Attorney like Loretta Lynch (rather than one likely to be appointed by President Trump) who will roll over and play dead at the judge’s request; (4) have a prison record of about 20 years of programming and good discipline; and (5) already have a pleading on file with the court that would give the court a colorable basis for granting relief. It would also help to be a minority: Judge Gleeson noted in the Holloway decision that “Black defendants like Holloway have been disproportionately subjected to the’ stacking’ of Sec. 924(c) counts that occurred here,” a fact that surely influenced his decision to convince the U.S. Attorney to agree to a rump reduction of sentence.

We confess to being intolerant of people who peddle false hope to inmates as a means of picking their pockets. The folks shilling “the Holloway Doctrine” now are only a notch up from the “territorial jurisdiction” and “sovereign citizen” types. Holloway worked in Judge Gleeson’s courtroom. The Rivera decision worked once in Oklahoma, but is both a hot mess and utterly irrelevant to Guidelines sentences.

Inmates are more likely to see the Trump helicopter arrive at the prison to fly them home than to ever see these Black Swans swim by again.

United States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y. 2014)

United States v. Rivera, Case No. 83-0096-CR (E.D.Okla. Sept. 15, 2015)

– 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.

OBAMA COMMUTATION PROGRAM HAD FEET OF CLAY

Those of us who go to bed early awoke today to learn that President Trump – whose frenetic activity of dubious wisdom over the last 10 days included installing Deputy Attorney General Sally Yates as acting head of the Dept. of Justice – had her walked out of the building last night (figuratively speaking) after she refused to enforce his executive order on immigration.

Setting aside questions about that order, which are well beyond the scope of this blog, the firing had to please thousands of federal inmates disappointed at the outcome of a Obama clemency program that seemed much more about burnishing his legacy than it did about systematically addressing over-sentencing. Yates was the public face of the DOJ side of clemency, and last week, the falsehood of her chief claim about that effort became obvious.

One heartbroken daughter of a federal prisoner published her letter to Obama about his failure to act on clemency for her father: I want you to know how disappointed I am… I truly thought you were a good person. I guess I was just as brainwashed as everyone else. At least now I can see the blood on your hands… You’re just as guilty as those who created it in the first place.”

The letter, from the daughter of former Illinois governor Rod Blagojevich, complained that Obama did not act of her father non-drug commutation petition. But it could just as easily have been written by any of the 7,600+ inmates whose clemency petitions were left pending when Obama left office, or the 14,000+ whose petitions were denied for opaque and arbitrary reasons.

A 58% majority of Americans say they approved of Obama’s drug commutations. Only 30% were against it. But for a program that was much more popular than Obama’s release of someone with an espionage conviction 28 years early, the former President badly unperformed.

Set aside for a moment FAMM’s gushing praise over “the quality and record number” of clemency grants issued by Obama. One lawyer close to the process wrote last week that “in granting so many fewer petitions than originally projected, the administration may have done more to exacerbate the arbitrariness of the sentencing regime writ large than to remedy it. As became clear over the last several months — during which the majority of the clemency decisions were announced — it was often impossible to find any meaningful difference between the petitions that were granted and those that were denied.”

“Petitions only a mother (or a defense attorney) would be confident about might sail through the process within weeks of submission,” he wrote. “A handful of inmates whom we declined as hopeless — a difficult decision, but one we thought the criteria required — later successfully petitioned the administration on their own. Meanwhile, petitions that clearly appeared to meet the criteria, for clients with incredibly compelling stories, languished for months, only to be finally denied last week.”

What’s more, everyone recalls Yates’ promise to act on all of the qualified petitions that were pending, and her self-satisfied assurance that it had been done. We’ve heard from dozens of inmates who claimed they were filed by the August 31, 2016, deadline, but heard nothing. Now, a lawyer with the New York University law school Clemency Resource Center has verified that claim, writing that “almost 10% of the petitions CRC submitted before the still remain pending. And while the administration ultimately reviewed several hundred petitions submitted in September, heartbreakingly, many deserving clients whose petitions we rushed to submit that month also never received a decision.”

Reason.com reports that “while some of those commutations were delayed so the inmates could complete drug treatment and other reentry programs prior to being released back into society, clemency lawyers say there was a notable shift in the final months of the program—possibly due to influence from U.S. Attorneys involved in the process—that resulted in commutations where some inmates’ sentences were dropped from life in prison to 30 years… As Obama wrote in a tweet about his last round of commutations: ‘Proud to make this one of my final actions as President. America is a nation of second chances, and 1,715 people deserved that shot’.”

Can someone whose sentence was cut from life to 30 years really be said to have been given a second chance?

Such commutations may have been the result of compromise involving U.S. Attorneys, although no one knows for sure. The inner workings of the White House reviews of petitions were shrouded in secrecy. “We really don’t have much insight into how things get considered on the inside,” attorney and pardon specialist Mark Osler says. “It’s a project with a box over it.”

Finally, it appears that everyone is striking the tent. Cynthia Roseberry, executive director of the Clemency Project, confirmed to us last week that the project was disbanding, but encouraged inmates to remain positive. And sometime last week, without any fanfare at all, Robert A. Zauzmer, the former Philadelphia AUSA who took over the Office of Pardon Attorney last winter, disappeared from the OPA website. The current head of the office is Lawrence Kupers, identified as “Deputy Pardon Attorney.” Kupers has been with the Office since 2014.

Now, Sally herself rides into the sunset, which undoubtedly includes a seven-figure partnership at a white-shoe law firm. Sally, may the doors of Main Justice not whack you in the keister on the way out.

Chicago Sun-Times, Blagojevich daughter: ‘Spineless’ Obama has ‘broken my heart’ (Jan. 26, 2017)

Huffington Post, Americans Support Obama’s Clemency Toward Drug Offenders, But Not Toward Chelsea Manning (Jan. 23, 2017)

The Hill, What Obama’s commutations mean (Jan. 24, 2017)

The Marshall Project, Inside the Clemency Lottery (Jan. 26, 2017)

Reason.com, This Inmate Received Clemency from Obama. He Still Might Die in Prison (Jan. 26, 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.

YOU’VE GOT NOTHING COMING

Lousy healthcare ranks just behind lousy food as an inmate complaint, but when the effects of substandard medical attention are considered, it is perhaps the most significant beef inmates have. We have worked with inmates who were blinded, paralyzed and stricken with terminal cancer because of incompetent or indifferent medical attention in prison.

The Federal Tort Claims Act permits inmates to sue for medical malpractice, with the law applied being the law in which the prison is located. Of course, a federal inmate has no access to state law, no right to an appointed attorney, and no right to the assistance of medical experts. The prison healthcare people, on the other hand, are represented by the civil desk of the United States Attorney’s Office, a “law firm” staffed by some pretty skilled attorneys backed by a client with an unlimited budget and a disinclination to settle. It’s little wonder that even the most patent case of medical malpractice in the federal prison system rarely goes the inmates’ way.

That’s why we were so surprised and pleased this week to see the 7th Circuit come down resoundingly on the side of an Indiana state prison inmate who had been beaten down by the system. First, prison healthcare let an ingrown toenail result in a lifetime of migraine headaches and soft foods (itself an amazing and appalling medical result). Then, the pro se inmate suffered nine years of being buffeted by the legal system.

Tom James was in an Indiana prison when he began suffering from an ingrown toenail. He sought medical help for it, but the doctor dithered as prison medical staff are wont to do. Tom got some drugs, and then some more drugs, and finally – after a month – the doc removed the nail.

The biggest problem with prison medical services, in our experience, is not that the care is substandard. It often is, but that’s not the principal problem. The real difficulty is that the medical staff stalls, equivocates, denies and procrastinates until problems that could have been solved quickly and cheaply turn into existential crises.

That’s what happened here. By the time the nail was pulled, Tom was limping badly because of the pain and taking opioids for pain. The combination of a narcotic stupor and a bad limp resulted in Tom falling on the steps of the housing unit and breaking his jaw. Three times he sought emergency treatment of the jaw, to no avail. About a month later his jaw cracked while he was eating. X-rays revealed a fractured left jaw, but because so much time had passed, surgery could not correct the problem. Tom was put on a diet of soft food for the rest of his life.

Tom sued the prison and a number of doctors for malpractice and 8th Amendment violations, claiming that they had been deliberately indifferent to his infected toenail and broken jaw. Years later, he suffers pain and temporomandibular joint dysfunction from the jaw injury.

The district judge eventually dismissed all the defendants except two doctors who had treated Tom (and we use the term “treated” loosely). Tom asked the court for a lawyer, because he was now doing time in Arizona and suffering from daily migraine headaches. He also asked for a medical expert to assist him in his case, and added that he had limited access to legal materials, limited education, and no litigation experience, and that he had tried to obtain a lawyer but had not succeeded.

The district judge was not impressed. He said Tom had “a meaningful opportunity to present his claims, he has demonstrated familiarity with his claims and the ability to present them, because the issues presented by his claims are not complex, and because this does not appear to be a case in which the presence of counsel would make a difference in the outcome.” Tom was not able to obtain his medical records, and prison staff kept taking away boxes of his legal materials during the case. His discovery requests to the defendant doctors gained him nothing.

At summary judgment, the judge found that when Tom went to him, Dr. Eli had provided “timely and appropriate care.” Without his medical records, Tom had no opportunity to show the contrary. The district court threw out the claim.

On Wednesday, the 7th Circuit reversed the dismissal. The Court stated the obvious: without a lawyer and a medical expert, Tom was “totally outclassed by the defense.” The Circuit observed that:

We are mindful that there is no right to an appointed lawyer in civil litigation. We are mindful too that despite lawyers’ ethical obligation to assist those who are too poor to afford counsel, there may be a dearth of lawyers in a district who are willing and able to serve in this sort of case, and 28 USC Sec. 1915 does not authorize a district court to command unwilling lawyers to represent prisoners… When there is a scarcity of willing lawyers, a trial judge can and should exercise discretion to assign those lawyers to cases in which they are most needed. But we have also recognized that lawsuits involving complex medical evidence are particularly challenging for pro se litigants… If a pro se plaintiff in such a case is unable despite his best efforts to obtain a lawyer and a medical expert, and if the case would have a chance of success were the plaintiff represented by counsel the trial judge should endeavor to obtain them for him.

The appellate panel agreed that Tom had filed “well-written submissions,” had “awareness of the facts” and “understanding of the applicable legal standard.” But, the Court said, “none of these supposed ‘assets’ could transform Tom into a medical expert or find him medical evidence to establish that reputable medical professionals would have strongly disagreed with the treatment that he received for his injuries.” A lawyer would have been particularly helpful with discovery in Tom’s case. “Moreover,” the Court said, “the facts on which James bases his suit are straightforward; assisting him with discovery would not have been an onerous task for a lawyer.”

Tom might be wrong that, nine years after the fact, his pain is he result of ol’ Doc Hatchet in the prison. He “says he still experiences jaw pain and dysfunction (difficulty eating, sleeping, etc.),” the Court of Appeals said. “That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the injury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment. On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.”

The panel was fairly clearly exasperated that the district court had not bothered to level the playing field. “We close by noting that this suit began in 2009 and will soon be in its eighth year even though it should have been apparent from the start that the plaintiff would need counsel and a medical expert witness in order to get to first base.”

James v. Eli, Case No. 15-3034 (7th Cir., Jan. 27, 2017)

– Thomas L. Root