Brady Violation Costs Cops $18 Million – Update for January 24, 2017

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PAY THE MAN, SHIRLEY

From New York comes an interesting civil action with a happy ending for a couple of guys who did 18 years on a bum murder rap.

franz170124When a 16-year girl was found raped and murdered back in 1984, Nassau County Police were stumped. After a few months, some mutt shot his mouth off, and the police sweated him until he admitted he’d heard some disjointed but lurid details about the crime from John Restivo. John in turn was sweated by the cops, and he pointed the finger at Dennis Halstead without implicating himself. Nassau County detective Joe Volpe – who may as well have been the real-life model for NYPD Blue detective Andy Sipowicz – then subjected John Kogut, a co-worker of John and Dennis, to an overnight interrogation complete with screaming, threats and beatings.

Unsurprisingly, Kogut confessed (who wouldn’t have?). He implicated John and Dennis in the horrific crime in a statement containing lurid details provided largely by the helpful officers. The police then grabbed John Restivo’s van alleged to have been involved in the crime. They found no blood. However, Det. Volpe recovered some hairs later linked to Theresa.

The Kogut confession could not be used in John’s and Dennis’s trial, because Kogut refused to testify. The jury convicted them anyway, and they went away for 35-to-life.

Fast forward 20 years or so. With much better DNA tests available, the semen sample recovered from the deceased was tested again. Not only were John, Dennis and the weak-kneed Kogut ruled out, but as well a total of 82 friends, acquaintances (and the deceased’s boyfriend) were all excluded as well. In fact, no one in the national DNA database matched the sample from the victim.

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          It’s unlikely Detective Volpe’s customer satisfaction surveys were very favorable.

All three defendants – John, Dennis and Mr. Kogut – won new trials. The State tried Kogut first, but even his coerced confession wasn’t enough to convict him, with the spectre of an unknown assailant looming in the case. After Kogut was acquitted, the State threw in the towel, and dismissed the case against John and Dennis.

Inmates who fight their cases in post-conviction motions often dream of winning acquittal, and then turning the victory into a big payday because of wrongful conviction. It’s harder than it sounds – statutes that permit recovery usually require that the former prisoner prove his innocence as a condition of payment. Still, Dennis and John were able to collect $2 million from the State of New York, not a lot for 36 combined years of prison.

Then, the two went after Det. Volpe and some other Nassau County police, suing under 42 U.S.C. 1983 and claiming their constitutional rights were violated. They won against the late Detective Volpe, netting an $18 million judgment.

Last week, the 2nd Circuit upheld the judgment.

Det. Volpe was held liable on the strength of two showings. First, a man named French had reported his car was stolen from the roller rink at which the victim worked on the very day of her disappearance. When the car was recovered a week later, investigators found a pair of jeans that matched the distinctive pattern worn by the victim and a piece of nylon rope the man said had been in his back seat when the car was stolen. The police held the jeans and rope, but both disappeared.

Sometimes the defendant really didn't do it...
Sometimes the defendant really didn’t do it…

The victim had been strangled with a rope, and the car – when it was found about a mile from the roller rink – had phony license tags. Yet Det. Volpe, who conceded at the time that the missing car and items in it were exculpatory evidence that should have been given to the defense under Brady v. Maryland, never told the district attorney about it. The Court of Appeals agreed that the detective’s failure to disclose the evidence – which he admitted was exculpatory – was a willful violation of John’s and Dennis’s constitutional rights. At trial, the plaintiffs’ expert on police procedures

testified that, based on the evidence he had, the French lead was clearly exculpatory, and should have been documented and sent to a prosecutor, based on minimally accepted police practices in the 1980s. In particular, he concluded that based on the time and location of the theft, the fact that the car’s license plates were removed, the fact that a rope was in the back seat at the time of the theft and a rope was used as a ligature to strangle Ms. Fusco, and the fact that a pair of women’s or girls’ striped jeans were found in the back seat of the vehicle, with at least one leg turned inside out, this lead was clearly exculpatory.

Fischer testified that under minimally accepted practices, exculpatory evidence does not need to definitively prove innocence in order for it to have to be documented and disclosed, and that the combination of all of these factors meant that the evidence should have been disclosed under minimally accepted police practices.”

The most troublesome piece of evidence for John and Dennis was the victim’s hair found in the van. The evidence on that clinched matters, the appellate panel implied.

Post-mortem root banding.
                       Post-mortem root banding.

It seems that when a body dies, after a period of 16 hours of so, a condition known as post-mortem root banding occurs, a distinctive series of striations around the root of hair. The coroner had taken hair from the victim’s body and stored it in a locker, a locker to which Det. Volpe had unfettered access. It now turns out that the hair Det. Volpe said had come from the van showed PMRB consistent with the hair taken from the corpse. The evidence, however, showed that it would have been impossible for hair with such PMRB to have been left in the van, because the state’s theory of the case was that she was still alive when in the van.

The Court of Appeals agreed that the evidence was easily sufficient for the civil jury to conclude that there was never any of the victim’s hair in the van, and that Det. Volpe had taken some of the autopsy hair and slipped it into a new envelope, claiming it had come from the van.

The 2nd disposed of a host of other arguments, including that $18 million for two innocent men spending 36 years in prison was too much. The judgment in favor of John and Dennis was upheld.

Pay the men, Shirley.

Restivo v. Volpe, Case No. 14-4662-cv (2nd Cir. Jan. 19, 2017)

– Thomas L. Root

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Parsimony is the Takeaway from Obama’s Clemency Initiative – Update for January 23, 2017

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COMMUTATIONS – THE FINAL NUMBERS

The clemency frenzy is over, Obama’s gone, and the final numbers are in. Mostly, they’re as depressing as they are confusing.

First, the depressing: Over his 8 years in office, Obama granted 1,715 commutations while denying 19,357 petitions, for a grant rate of 8.1%. This means he denied 92 of every 100 petitions he saw

226ASP6179944780Second, the confusing: Clemency Project 2014, the volunteer lawyers who screened the clemency petitions for Dept. of Justice, said last Friday that over its two year run, it “completed screening of the more than 36,000 federal prisoners who requested volunteer assistance.” The Clemency Project was entitled to withhold volunteer assistance from people it deemed not qualified – which is said was an “overwhelming majority” of the requests it received – but it was not entitled to deny the applications. Only the White House could do that.

So where did the rest of those applications go? In the final hours of Obama’s presidency, the DOJ Office of Pardon Attorney said it reviewed every drug-related petition filed prior to August 31, 2016. However, there appear to be a lot of clemency petitions that were left stranded last Friday when Obama flew out of town. DOJ said 3,469 drug-related petitions filed after last August remain on file, as well as 4,412 petitions from federal inmates imprisoned for offenses other than drugs.

We have heard from a number of inmates who say their drug-related clemency petitions were filed before the August deadline – even some recommended by the Clemency Project – who have been neither granted nor denied. We have no official verification that this is so, but likewise we have no basis for disbelieving the reports we have received.

Yesterday, one inmate at a federal low-security prison in Texas said, “there are over 40 plus inmates here (along with me) that never heard a thing about our clemency. Most of us submitted it well before September (11 of them back in March) of last year. All of them but me is a drug offender.”

DOJ says, “Consistent with historic practice, these remaining petitions will be processed by the Office of the Pardon Attorney and addressed by future Administrations.”

It is also puzzling that only 66% of the 2,600 petitions recommended by the Clemency Project were granted.

“I think Obama tried to use the existing structure to do something that really hadn’t been done before, and it think the structure just struggled,” said New York University law professor Rachel Barkow, who is on the U.S. Sentencing Commission. “There’s not enough people to deal with it, there was too much bureaucracy and it shouldn’t be in the DOJ. It’s asking too much to ask prosecutors to rethink what they already did.”

The Clemency Project 2014, a cooperative effort of the American Bar Association and National Association of Criminal Defense Lawyers, recruited and trained about 4,000 volunteer lawyers from diverse practice backgrounds.

awesome170123The Obama Administration was full of itself praising its record of 92 denials for every 8 grants. Deputy Attorney General Sally Q. Yates said, “With 1,715 commutations in total, this undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception. By restoring proportionality to unnecessarily long drug sentences, this Administration has made a lasting impact on our criminal justice system.”

Julie Stewart, who chairs Families Against Mandatory Minimums, was more realistic. She praised the clemency grants for the ones who got one, but said, “my heart aches for those who will not make the cut. After over two years of believing they may have a chance for freedom, they now see that door of hope closing. I can’t imagine what the pall in the prisons will feel like on January 20 when President Obama leaves office.”

DOJ Office of Pardon Attorney, Overview Of DOJ’s Clemency Initiative (Jan. 19, 2017)

ProPublica, Obama Picks Up the Pace on Commutations, But Pardon Changes Still in Limbo (Jan. 5, 2017)

Clemency Project 2014, President Obama Caps Final Full Day in Office with 330 More Commutations (Jan. 20, 2017)

DOJ, Deputy Attorney General Sally Q. Yates Statement on the Clemency Initiative (Jan. 19, 2017)

Washington Post, Obama grants final 330 commutations to nonviolent drug offenders (Jan. 20, 2017)

– Thomas L. Root

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Supervised Release: The Neverending Nightmare – Update for January 20, 2017

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WHAT’S IN A WORD?

Bob Cross is doing life by the installment plan. He caught a marijuana case (or marihuana, as the government would put it) 2006, and sentenced to 60 months in prison, followed by four years of supervised release.

groundhog170120In August 2010, Bob got out and started his supervised release term, which – for those of you who have had the enjoyment of crossing swords with the federal criminal justice system – is nothing but glorified parole, and a seemingly endless bad dream to boot. Essentially, during supervised release, an offender has to file a monthly report on a form that is as vague and all-encompassing as the federal criminal code itself, and must adhere to equally spongy conditions. Violating the conditions is as easy as walking out your front door in the morning, leaving an offender’s continued freedom pretty much at the mercy of his or her probation officer (and, of course, the court for which the probation officer works).

You’ve heard the old business aphorism, “The customer is always right?” See how that applies when you’re arguing to a district court that the opinion of a probation officer on whom the court relies for so much – and who is a judicial agency employee to boot – should be overruled. You may as well ask Donald Trump to overrule Melania or Ivanka.

right170120Sometimes, however, the violation is fairly obvious. It was for Bob. During his supervised release term, Bob caught state drug possession and theft cases, both of which of course violated his supervised release conditions.

The district court learned about the drug possession beef first, and revoked his supervised release in April 2013, ordering him to do 8 more months in prison and an additional two years of supervised release. In December 2013, Bob finished the 8 months in the cooler, and resumed his supervised release.

Fifteen months later, the district court finally tumbled to Bob’s 2012 theft conviction, and revoked his supervised release again. Apparently due to the age of the conviction and the fact it could have punished him before, the court sentenced him to a single day in jail and another five years of supervised release.

Bob appealed, arguing that the court had revoked his previous supervised release term when it gave him 8 months in prison, and that because it had revoked it, the court had no jurisdiction to revoke the new term for something – the theft – that had happened in the old term. On Wednesday, the 6th Circuit gave Bob a grammar lesson.

word160208The Circuit explained that, “revocation and termination of supervised release are distinct concepts. Termination discharges the defendant and thereby ends the district court’s supervision of him. Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation. Revocation, in contrast, means that the defendant must “serve in prison all or part of the term of supervised release. Thus, revocation does not terminate the defendant’s supervised release; quite the contrary, it requires him to serve “all or part” of it in prison… Revocation therefore revokes only the release part of supervised release; the district court’s supervisory authority continues until the defendant’s supervised release terminates or expires.”

The Court held that because the district court’s authority continues throughout an offender’s supervised release term, so too does the court’s ability to police violations of the release’s conditions. Here, Bob’s supervised release term – and the district court’s right to supervise it – had “neither terminated nor expired by June 2015.” Therefore, the district court could revoke Bob’s supervised release a second time based upon its discovery that he had committed a second violation, no matter where in the supervised release term it happened.

sword170120So Bob gets to live under the Sword of Damocles until summer 2020 (unless of course the district court finds another reason to prolong it even more). By then, Bob will be 15 years into a 5-year pot sentence.

United States v. Cross, Case No. 15-5641 (6th Cir. Jan. 18, 2017).

– Thomas L. Root

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A Nation of Second Chances – Update for January 19, 2017

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5th CIRCUIT OKS 2241 ATTACK UNDER BURRAGE

second170119Everyone’s been gushing about second chances, as President Obama goes out in a blaze of commutation glory, granting sentence clemency to over 600 people in his final days in office. And we have no problem with that, except that so many others who were punished with draconian sentences they could never get today were left behind. 

This week also brought a “second chance” for a rational sentence of a different kind. 

Tiofila Santillana was trafficking in methadone. One of her buyers, as buyers of illegally-sold controlled substances are wont to do, overdosed on a cocktail of alcohol and multiple drugs – including methadone – and “shuffel’d off this mortall coile” (which is Shakespearean for “died).” Under 21 USC 841(b)(1)(C), if death results from drugs distributed by a defendant, a court must sentence a defendant to a mandatory minimum 20 years.

The experts testifying in Tiofila’s case agreed that her methadone contributed to the doper’s death, even though it was not the cause of death. The trial court felt obliged to hammer her with a 20-year sentence.

cocktail170119Five years after Tiofila’s conviction, the Supreme Court held in Burrage v. United States that where “use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 USC 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Tiofila promptly filed for relief.

But here’s the rub. Tiofila was out of time to file a motion under 28 USC 2255, because that statute requires that the motion be filed within a year of the case becoming final. There is an exception where the “right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

Tiofila filed a petition for writ of habeas corpus under 28 USC 2241, claiming she was entitled to relief under Burrage v. United States. The district court dismissed the petition for lack of jurisdiction, finding that Tiofila had not satisfied the “savings clause” of 28 USC 2255(e) because Burrage was not retroactively applicable on collateral review.

Earlier this week, the 5th Circuit reversed, agreeing with Tiofila that she is entitled to relief. The case provides a clear roadmap as to what must be shown by a petitioner seeking to use a 2241 motion because he or she says a 2255 will not do.

inadequacy17-119Ordinarily, to attack a conviction collaterally, a federal prisoner can seek relief only by a 2255 motion. But under 2255(e)’s “savings clause,” she may file a habeas petition if Sec. 2255 is “inadequate or ineffective to test the legality” of the detention. Courts have held 2255 to be “inadequate or ineffective” if the 2241 petition raises a claim “that is based on a retroactively applicable Supreme Court decision”; (2) the claim was previously “foreclosed by circuit law at the time when [it] should have been raised in petitioner’s trial, appeal or first 2255 motion”; and (3) that retroactively applicable decision establishes that “the petitioner may have been convicted of a nonexistent offense.”

The Court held that Burrage was retroactive whether the Supreme Court had said so or not, because such new Supreme Court decisions “interpreting federal statutes that substantively define criminal offenses automatically apply retroactively,” applying retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal…”

retro160110The district court had dismissed Tiofila’s petition, relying on Tyler v. Cain, which held that for a prisoner to file a second or successive habeas petition based on a new rule of constitutional law, the Supreme Court must have held the rule to be retroactive to cases on collateral review. But Tyler does not apply to the “savings clause” of 2255(e), the Circuit said, which requires only that a qualifying 2241 petition be based on a “retroactively applicable Supreme Court decision,” without specifying that the Supreme Court must have made the determination of retroactivity.

On its face, the Court said, “Burrage is a substantive decision that interprets the scope of a federal criminal statute… At issue in Burrage was the meaning of “death or serious bodily injury results.” The Burrage holding “narrows the scope of a criminal statute, because but-for causation is a stricter requirement than are some alternative interpretations of “results.”

Santillana v. Warden, Case No, 15-10606 (5th Cir. Jan. 16, 2017)

– Thomas L. Root

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One Copter Is Still On the Embassy Roof – Update for January 18, 2017

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LISAStatHeader2smallUPDATE: MORE TO COME FROM THE PARDONER-IN-CHIEF

When we blasted President Obama this morning (see below),  the White House had not yet announced that President Obama would grant more commutations tomorrow, the day before his presidency ends.

DUNCE170118Officials said those additional commutations would focus on drug offenders and would not likely include any other famous names.

So we were wrong. We don’t recall that ever happening before.

Hindustan Times, More clemency to come after Obama shortens Chelsea Manning’s sentence (Jan. 18, 2017)

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WHITE HOUSE RELEASES FINAL PARDON/CLEMENCY LIST

President Obama selected the final 273 prisoners and former prisoners to receive commutations or pardons from his Administration. One of the commuted sentences, a decision that has stolen the headines on this story, was that of Army Private Bradley (now Chelsea) Manning, whose 35-year parolable sentence for espionage was cut to end on May 17, 2017.

A total of 209 grants of commutation and 64 pardons were announced late yesterday afternoon, pushing Obama’s commutation total to 1,385 individuals, far fewer than the Administration optimistically predicted a year ago.

lastcopter170118“Today, 209 commutation recipients – including 109 individuals serving life terms – learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven,” the White House gushed in a news release. “These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward. Today, 273 individuals – like President Obama’s 1,324 clemency recipients before them – learned that our President has found them deserving of a second chance.”

No mention was made of the 6,000 applicants still on file – many of whom, unlike Manning, are veterans who did not betray their country – who were arguably as deserving of a sentence cut. They  were left on the White House lawn as the Obama clemency copter lifted off  for the last time.

Fox News, Obama commutes Chelsea Manning’s sentence for leaking Army documents (Jan. 17, 2017)

The White House, President Obama has now granted more commutations than any president in this nation’s history (Jan. 17, 2017)

– Thomas L. Root

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DOJ Completes Processing 16,000+ Clemency Requests – Update for January 17, 2017

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WASHINGTON POST REPORTS JUSTICE HAS SENT FINAL COMMUTATION LIST TO PRESIDENT; “HUNDREDS MORE” TO GET CLEMENCY

pardon160321President Obama promised to commute up to 2,000 drug sentences. He has about 75 hours left to come up with the final 850 he needs.

The Washington Post reported yesterday afternoon that Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to Obama. The President is reportedly set to grant “hundreds” more commutations to drug offenders during his final days in office, but apparently not the grand categorical gesture than some have urged him to approve.

The national discourse on commutations – which had mostly focused on drug defendants – changed dramatically last Wednesday when NBC News reported Army Private Bradley Manning – who released a trove of U.S. secrets to Wikileaks, leading to an espionage conviction in 2013 – is on Obama’s “short list” for a sentence commutation. Manning, who reportedly suffers from gender dysphoria, got a 35-year sentence, but is eligible for parole in three more years.

hugs170117The media have been speculating about a Manning commutation for months. Last Friday, White House press secretary Josh Earnest, answered a media question about Manning and Edward Snowden (who stole thousands of secrets from the government and fled to hide in Russia). “So, I think the situation of these two individuals is quite different,” Earnest suggested. “I can’t speculate at this point about to what degree that will have an impact on the President’s consideration of clemency requests. I know that there’s a temptation because the crimes were relatively similar to lump the cases together, but there are some important differences, including the scale of the crimes that were committed and the consequences of their crimes.”

Earnest suggested Obama may be willing to offer Manning relief because – unlike Snowdon – Manning took responsibility for his actions in court. It also implies that Obama is willing to commute Manning’s sentence, an act that will be enormously unpopular with a lot of people. Obama’s willingness to do so increases the likelihood he will “go long” on the final commutations to BOP prisoners.

While the media was atwitter about Manning, DOJ was burining the midnight oil to slog through thousands of remaining clemency applications from less-known federal drug offenders. “We were in overdrive,” Deputy Attorney General Sally Q. Yates said. “We were determined to live up to our commitment. It was 24-7 over the Christmas break.”

With 11 days to go, burning the midnight oil...
      Burning the midnight oil at Justice…

At the end of last August, Yates promised DOJ would review every petition from a drug offender that was still in the department’s possession at that time — about 6,195 at that time. The DOJ did that, and even included several hundred petitions received through September 15, after her cutoff date, as well as petition from people with life sentences filed as late as November 30. The final count of petitions reviewed was 16,776.

The urgency arises from the generally-accepted perception that President-elect Donald Trump will dismantle Obama’s clemency initiative, which has resulted in commutation of sentence for 1,176 drug thus far. More than 400 were serving life sentences.

Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. The Post quoted several people close to the process as saying it will be several hundred. Perhaps in preparation for the announcement this week, last Friday the White House issued with its usual stealth a list of 804 clemency denials, which could be a final cleanup before the major commutation announcement this week.

Ohio State University law professor Douglas Berman wrote last night that DOJ and Obama deserve credit for “ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama’s tenure largely as an opportunity missed.”

Shadowproof, White House justifies Chelsea Manning’s possible commutation (Jan. 13, 2017)

Washington Post, Obama to commute hundreds of federal drug sentences in final grants of clemency (Jan. 16, 2017)

Sentencing Law and Policy, After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency (Jan. 16, 2017)

– Thomas L. Root

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11th Circuit Holds Florida 2nd Degree Burglary No Crime of Violence – Update for January 13, 2017

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ANOTHER ONE BITES THE DUST

Idust170113t’s been rough sailing for “crimes of violence” in the last few years, as courts have repeatedly limited the types of prior offenses that may be considered by federal courts as crimes of violence. This week, another one – a Florida burglary offense – fell.

This may seem rather dry to a lot of people. Who cares whether a past conviction was violent or not? A lot of people, it turns out, because whether a defendant’s prior crimes are crimes of violence or not makes a dramatic difference in sentencing. Under the Armed Career Criminal Act, for example, a convicted felon caught during deer season with a shotgun faces a maximum sentence of 10 years for violating 18 USC 922(g). But if his criminal history includes three crimes of violence, the minimum sentence starts at 15 years and maxes out at life. A number of other statutes and Guidelines also mete out additional punishment depending on whether a defendant’s criminal history is violent or not.

But doesn’t that sound like a good idea? Who needs violent criminals stalking our streets? After all, you convicted felons out there, sow the wind, reap the whirlwind. If you can’t do the time, don’t do the crime…

kermit170113Sure, piling on additional punishment for already-punished misdeeds is viscerally appealing, until you get into the fine print of what the law considers a violent crime to be. Right now, it’s defined as any burglary, extortion, arson or crime involving an explosive. Additionally, it’s any other crime that involves force or the threat of force.

Most of that sounds good, but what about the guy who 20 years ago, used to sneak into the neighbors’ chicken coops and steal some eggs? Or boosted some Twinkies from Walmart? Those are burglaries in most states. Those “crimes of violence” hardly make him a likely chainsaw killer on a rampage.

Part of the problem is that the parameters of the law of burglary vary widely from state to state. What’s called a burglary in one state may be called a simple breaking and entering elsewhere. In other words, the “crime of violence” definition was punishing people depending on whether state legislatures decided to use the “b”-word – burglary – in a statute.

shoplift170113In Taylor v. United States, the U.S. Supreme Court limited the term “burglary” to “generic” burglary – unlawful entry into a building or other fixed structure. Breaking into a car, boat, or airplane wouldn’t count. Taylor further made the fateful determination that the analysis of whether a prior conviction for “burglary” satisfied the generic definition of burglary was to be performed on a “categorical” basis. That is, the sentencing court was not to look at the actual facts of the case to decide whether the defendant’s conduct constituted generic burglary; rather, the court was to analyze the statute under which he was convicted to determine whether it “categorically” qualified as generic burglary.

The Supreme Court followed that decision in 2013 with Descamps v. United States, which expanded the use of the “categorical” approach. Johnson v. United States followed two years later, in which the Supreme Court eviscerated the statutory definition of “crime of violence” by invalidating the catch-all residual clause, which included in the definition any offense that carried the risk of harm to a victim, regardless of a defendant’s intent.

burglary160502Then, last summer, the Supreme Court decided Mathis v. United States, which resoundingly endorsed and further broadened the use of Descamps’ “categorical approach.”

One of the guys who cares about it is Juan Gabriel Garcia-Martinez. In 2009 Juan, a Mexican citizen in the United States illegally, was convicted in Florida of 2nd-degree burglary of a dwelling under Florida Statute § 810.02(3).

Florida defines burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein…” with the intent to commit an offense or a forcible felony. A 2nd degree burglary is one in which while committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive. A “dwelling” is “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2)

deport170113After his Florida 2nd degree burglary conviction, Juan got booted from the United States and told never to come back. But he did. However, four years later, Juan was back, and immigration agents caught up with him in a Florida jail after he had been arrested for battery. He later pled guilty to illegal reentry after deportation.

The presentence investigation report assigned a base offense level of 8 under USSG § 2L1.2(a) and a 16-level increase under USSG § 2L1.2(b)(1)(A)(ii) for having committed a crime of violence – the 2nd degree burglary – prior to being deported. As a result, Juan faced a sentence of 41 to 51 months imprisonment.

On Wednesday, the 11th Circuit vacated the sentence. It held that the Florida 2nd-degree burglary statute was broader than the generic definition of burglary. The Florida definition of a “dwelling” included not just the building itself, but the curtilage as well. Curtilage is defined in Florida as an enclosure around a residence, such as a law surrounded by a hedgerow or a fenced-in backyard. The Circuit said, “Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Curtilage… is not categorically used or intended for use as a human habitation, home or residence because it can include the yard and, as the State acknowledges, potentially even outbuildings as long as they are located within the enclosure.”

Everywhere inside the stockade is curtilage...
                                                  Everywhere inside the stockade is curtilage…

Because Florida law defined curtilage as part of the dwelling for purposes of burglary, the 11th held the statute was indivisible, and thus – no matter what the facts of Juan’s burglary might have been – it was not a crime of violence.

The effect of the holding will be to cut Juan’s Guidelines range to a maximum of 14 months.

United States v. Garcia-Martinez, Case No. 14-15725 (11th Cir.  Jan. 11, 2017)

– Thomas L. Root

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Saying It Doesn’t Make It So – Update for January 12, 2017

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DADDY SAYS…

Because170112Serial college football coach Terry Bowden – who spent sojourns between his many coaching gigs as a TV sports analyst – delighted in quoting his father, legendary Florida State coach Bobby Bowden. “Daddy says…” Terry would start out, and then deliver a gem of football wisdom like Moses delivering the stone tablets.

We almost regret that Bobby’s been busy the past year coaching the University of Akron Zips to a lackluster 5-7 season, because we would like hearing him tell us “Daddy says… boys without fathers wear earrings to be like their mommas…” Yeah, really. Bobby said that.

Our point is that just because “Daddy says” it, it doesn’t mean it’s so. That’s the same point the 5th Circuit made in a decision handed down earlier this week.

fraud170112Euneisha Hearns was a mortgage loan officer involved in a rather plain vanilla conspiracy. She held customers lie to get mortgages, which was something of a sport in the halcyon days before the market collapsed in 2008. In Euneisha’s case, buyer interested in purchasing property on Brownstone Court in Dallas lacked the cash for a down payment. Hearns whipped up a loan application for him that puffed the value of the place and his ability to pay, netting enough for the buyer to close the deal and use some of the loan proceeds for the down payment (sort of like a snake eating itself).

Unsurprisingly, the buyer defaulted, the false statements came to light, and Euneisha was indicted. An old lawyer we used to work with liked to say, “no thief only steals once,” and this maxim apparently held here. There wasn’t just one bad loan at Euneisha’s. There were at least ten the government knew of.

Euneisha figured she was on the hook for about $180,000 (the amount of the Brownstone loan, an amount that will probably buy a storage shed in San Francisco). But the Sentencing Guidelines let a court set the loss based on the offense itself and related conduct. The presentence report prepared after trial said the conspiracy was responsible for total loss of $866,000, which included the Brownstone loan and “loss amounts related to nine other properties.”

“What other properties?” asked Euneisha. The PSR retorted that  “the Government has identified 10 properties [including the Brownstone Property] that involved fraud in the mortgage loan process. Government records reflect that with respect to these properties… Hearns [and her co-conspirators] were all involved in the scheme to defraud.”

Ah, the “Daddy says…” gambit. The PSR otherwise provided no information or evidence to support the loss amounts or Euneisha’s involvement in the other nine deals. The government presented evidence with respect to three of these properties at trial, but the remaining six properties were not mentioned either at trial or at sentencing. Nothing in the record showed when the six remaining transactions occurred, whether criminal activity was associated with the transactions, or whether Euneisha had even heard of them. Who bother? The government says, the PSR repeats. Game, set, match.

history170112Euneisha did not offer evidence to show that she was not involved with the other properties. It would have been hard to do so, to prove a negative. It’s especially tough in loss calculation, because loss amounts “need not be determined with precision” and “all that is necessary is that the finding be plausible in light of the record as a whole.” What’s more, PSRs – which, like history, are written by the winners – are generally considered “reliable evidence for sentencing purposes.” The district court concluded that “the information contained in the presentence report has sufficient indicia of reliability to support its probable accuracy.” It held Euneisha responsible for all $866,000.

Bcorso170112ut as another sportscasters, the equally legendary Lee Corso, likes to say, “Not so fast, my friend!” This week, the 5th Circuit vacated the sentence. Sure, the Court said, “a district court may adopt the findings of the PSR without additional inquiry if those facts have an evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information is materially unreliable.” What’s more, a defendant has the burden of showing that the information in the PSR is materially unreliable.

However, the problem here is that the PSR contained no information to support the loss amounts and no evidence Euneisha had anything to do with the other transactions. The government only mentioned three of the nine properties at trial. As for the others, “the facts contained in the PSR regarding these six properties lack an evidentiary basis with sufficient indicia of reliability,” the Circuit said. “Although a PSR may be considered as evidence by the court when making sentencing determinations, bare assertions made therein are not evidence standing alone.”

negative170112The appellate panel made clear that Euneisha was not at fault for failing to disprove the PSR’s loss claim. “If the factual recitation in the PSR lacks sufficient indicia of reliability,” the Court held, “then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence.”

The case will go back for resentencing.

United States v. Hearns, Case No. 16-40222 (5th Cir., Jan. 9, 2017)

– Thomas L. Root

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Bootstrapping Your Way to Enhanced Sentences – Update for January 11, 2017

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

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CHECK OUT THESE GUNS

About one out of ten federal offenders is charged with a firearms offense, and just about all of them are charged as felons-in-possession.

guns170111The shorthand is misleading, because literally, 18 USC 922 nowhere uses the word “felony.” But it does talk about a lot of other things. You can commit the offense colloquially called felon-in-possession if you own a firearm or ammunition that has traveled in interstate commerce after (1) being convicted of a crime punishable by more than a year in prison; (2) being under indictment for such a crime; (3) being convicted of any misdemeanor involving domestic violence; (4) being a fugitive from justice; (5) being a drug abuser; (6) being under a civil protection order; (7) being an illegal alien; (8) being dishonorably discharged from the armed forces; or (9) having renounced your citizenship.

The statute’s a hot mess, and its byzantine requirements would almost be laughable if the penalty – up to 10 years in prison – were not so serious. We just talked to a Navy veteran the other day who wanted to expunge a domestic violence misdemeanor he had gotten while on leave 22 years ago. He was shocked when we told him that he was committing a 10-year federal felony by owning the shotgun he hunted deer with every year.

Today’s case isn’t about the flaws in the statute, however, but rather the flaws in the system. Dasean Taylor was very much a felon-in-possession. In fact, he must have caught the authorities’ attention as a bona fide bad guy, because law enforcement sent an informant to buy guns from Dasean on three separate occasions.

gun160711
                            Not a business license…

Catching Desean the first time he sold a gun would have been plenty to hang him as a felon-in-possession. But the Sentencing Guidelines include an arsenal of enhancements that can jack up the sentencing range of a felon-in-possession, and the government pretty clearly wanted Dasean’s hide.

Dasean’s case centered around a 4-level enhancement for trafficking in firearms. The enhancement would apply to Desean if he sold two or more guns, and knew or had reason to know possession of the guns by the buyer was illegal or the buyer was going to use the guns illegally.

To be sure they could hammer Dasean, the authorities had their undercover buyer tell Dasean he was going to file the serial numbers off one of the guns. One of other guns sold was a sawed-off shotgun, illegal to own unless it was registered under 26 USC 5841. The district court held that the sale of those two guns satisfied the trafficking enhancement.

An unfortunate effect of the adoption of the federal sentencing guidelines was to institutionalize the practice of sentence manipulation. The drug guidelines increased according to the weight of the drugs sold, so law enforcement would not just make one buy, but rather a number of buys, until a weight threshold was reached. If the offense carried an enhancement for possession of a firearm, the undercover would beg the defendant to find a gun, any gun, that the undercover could buy. The worst examples are the “stash house” robberies, where the ATF agents running the sting would tell tales of a fictitious safe house stacked with kilos and kilos of cocaine. Why tell the perps they could knock over a place and get 4 kilos of coke when it was just as easy to promise 25 kilos?

§ 924 tacks a few years onto a sentence for carrying a gun during a violent or drug crime.
                                           Some guns you just know aren’t for plinking at cans…

In today’s case, Desean complained on appeal that there wasn’t enough evidence to apply the 4-level enhancement to his sentence (giving him 71 months instead of 46 months). Monday, the 1st Circuit affirmed the enhancement and sentence.

The district court found that “the cooperating witness [said] that he [was] going to take the serial number off” and that therefore “Mr. Taylor as a supplier would know [that the transfer] involved some unlawful possession or the use or disposal of the firearm unlawfully.” Dasean said the audio didn’t prove he heard the buyer say that, but the Circuit concluded otherwise., holding that because Taylor must have heard the statement,

then the District Court committed no clear or obvious error — or, for that matter, any error at all — in concluding that Taylor knew or should have known that the removal of a serial number is indicative of “anticipation that the gun will be used in criminal activity,” and thus that Taylor knew or should have known that CW-1 intended to use or dispose of the firearm unlawfully.

Now that’s a totem pole of inferences! The Court inferred from the audio that Dasean heard the buyer saw he’d remove the number, it inferred that Dasean knew that removing serial numbers indicates the buyer plans to be up to no good with the gun, and therefore it inferred that Dasean knew or should have known that the buyer intended to use or dispose of the firearm unlawfully.

Maybe so, but we think that begs the question. The cooperating witness did not intend to use the firearm unlawfully, or, for that matter, to remove the serial number. Instead, he was buying the firearm (and making the claim) at the behest of law enforcement, without any intention of carrying out his promise. It’s pretty obvious the buyer claimed he wanted to remove the serial number solely to trap Dasean with a higher guideline range. But can a defendant be said to know a b uyer will do something the buyer has no intention of doing when he claims to plan to do so?

It’s just unseemly to lie to someone, and then punish them because you assert they must have believed their lie.

boot170111Of course, there was a sawed-off shotgun, too. Under the National Firearms Act, one may not possess a sawed-off shotgun without registering it with the ATF. But the district court conceded that proper registration of the shotgun was possible, just unlikely. The Court of Appeals agreed, noting among other things that Dasean knew the buyer was up to no good because he “was on notice that CW-1 had expressed during the September transaction an intention to remove the serial number from a firearm.”

We don’t excuse selling guns to people who intend to misuse them, but the entire exercise in pumping up Dasean’s sentence struck us a serious case of bootstrapping.

United States v. Taylor, Case No. 15-1775 (1st Circuit, Jan. 9, 2017)

– Thomas L. Root

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7th Circuit Sanctifies Judicial “Hunches” as Sentencing Tool – Update for January 10, 2017

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

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HUH?

pecks170110Ryan Gibbs was just one of those perennial bad boys, with a record as long as your arm and a demonstrated lack of interest in conforming his conduct to the strictures of the law. In front of a district court for possession with Ryan faced a Guidelines-suggested 151-188 month sentencing range. The government asked for 216 months. The most Ryan could have gotten was a 240-month term.

The district judge, rambling “none too clearly” (as the Court of Appeals lamented), decided that Ryan was incorrigible:

When I look at the 3553(a) factors apart from the “nature and circumstances of the offense,” your “history and characteristics” of you as a defendant does [sic] not indicate that there should be any leniency at all; that they [anteced‐ent unclear] “reflect the seriousness of the offense,” “promote respect for the law,” which your history and characteristics indicate that you have no respect for the law; “provide just punishment.” Nothing — No previous sentence that this Court has imposed or other Courts have deterred you from your criminal conduct.

With this gibberish constituting the sum and substance of the district court’s application of the sentencing factors of 18 USC 3553(a), the judge slapped Ryan with 216 months.

Last week, the 7th Circuit affirmed the sentence. No surprise there – the government wins over 92% of the time in criminal appeals to begin with.

But the Court of Appeals upheld the decision primarily because it sensed it could trust the judge’s (and, to a lesser extent, the prosecutor’s) gut.

hunch170111The Circuit admitted that no one in the case “attempted a sophisticated analysis of the likely consequences… of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range… both the prosecution and the judge based the 216-month sentence (proposed by the government, imposed by the judge) on a hunch. As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable.”

The Court said that, after all, the government can suggest any sentence within the statutory range and the judge can impose any sentence within the statutory range. Plus, the panel argued, the “briefs and argument of defense counsel in this case bordered on the perfunctory.”

So the judge and the AUSA are “highly experienced” and their hunches are “reliable.” Defense counsel, on the other hand, is a legal klutz filing cookie-cutter motions and soulless briefs. It sounds as though imposition of a sentence after proper consideration of the Guidelines and sentencing factors in Sec. 3553(a) is a privilege reserved only for defendants who have good lawyers or face lousy prosecutors and a neophyte judge.

Judge Richard Posner, the author of the decision and an appellate jurist for whom we have great respect, said that “some consideration, however, should be given to the possibility of basing a prison sentence – at least a very long one (and an 18-year sentence is very long) – on something other than a hunch.” We agree wholeheartedly. But he then proceeded on a flight of impractical fancy by suggested that maybe the sentencing judge should have called the Sentencing Commission, which then would given the AUSA, court and defense counsel guidance on why it set the Guidelines where it did, and might even propose the right out-of-guidelines sentence in this particular case. The parties might find the Sentencing Commission “a valuable resource,” Judge Posner opined.

momscold170110What a capital idea! For that matter, the district courts might just want to call Congress for guidance on why the statutory penalties are as they are, or ring up the President for his view as to whether it should peremptorily commute the sentence, or even ask the defendant’s mother what punishment she found to be the most effective when Ryan was a mere lad. To be sure, the Sentencing Commission could not be so busy that it wouldn’t be willing to give a few minutes of time to arbitrate an individual sentence in Ryan’s case (or in any of the other 80,000 criminal sentences that occur in federal courts annually).

phonefriend170110In the days before the Guidelines, judges sentenced anywhere within the statutory range virtually without oversight or discretion. The Guidelines were to change all of that. In Gibbs, the 7th Circuit has handed down a decision that enshrines a judge’s “hunch” as a standard that trumps all others. What’s nearly as bad, the Court has suggested that maybe district courts should start using the U.S. Sentencing Commission as a “phone-a-friend” in troublesome sentencing cases, a development undoubtedly as unwelcome to the Commission is it would be for people like us who believe that judging is for judges.

United States v. Gibbs, Case No. 16-1747 (7th Cir., Jan. 6, 2017)

– Thomas L. Root

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