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YOU CAN’T TELL ME WHAT TO DO

It sounds like a teenager’s hormone-driven rant. Sadly enough, the story has a lot to do with a teenager. And, it turns out, the court can’t tell you what to do. But that doesn’t mean that someone else can’t.

A rather sketchy guy named Dave started a Facebook relationship with a 13-year old girl, Veronica Victim. Through some pretty textbook manipulation, he convinced Veronica he had been a talent scout for America’s Got Talent. He promised to could coach Veronica on “voice” lessons, sessions that included a sexual component.       Finally,
44-year Dave bedded the 13-year old girl. 

Veronica’s parents found out she had been lying about her whereabouts when she was really at Dave’s, and they grounded her. That was when Dave and Veronica hatched a plan for the two of them to flee the state together. They would live as though they were father and daughter – albeit with plenty of sex behind closed doors – until Veronica was 18. Then they would get married.

The pair made it to Arkansas before authorities – who figured out Dave’s involvement quickly when they examined Veronica’s social media – fingered him as the culprit. Dave went to trial, and was easily convicted of knowingly transporting 13-year old Veronica in interstate commerce with intent to engage in criminal sexual conduct (sex with a minor).

While he was awaiting sentencing, Dave wrote to Veronica, telling her “I took it to trial just so I could see you one last time… I don’t know if you understand I’m going to prison for over 20 years. You understand that right?… I’m going to try to get the prison in Kansas. Maybe when you’re old enough you would come visit me.” Of course, by now, Veronica understood Dave to be the middle-aged creep he was. Thus, the letter upset her, and her mother told the judge as much at sentencing.

The district court sentenced Dave to 420 months imprisonment followed by supervised release for the rest of his life (which won’t be that long after his release at age 74). As part of its sentence, the district court included: “I am going to order you not to ever have contact with the victims in this case again. Period.”

The court then explained, “I don’t know if I can use the word “order,” but I am going to send as strong of an admonition as I possibly can, both to the defendant but also to the Federal Bureau of Prisons… that they are to do what they can to ensure that there are no such communications, ever.”

Dave appealed. Two days ago, the 8th Circuit Court of Appeals handed Dave a Pyrrhic victory.

The Court of Appeals struck the “no contact” order, ruling that “the district court does not have statutory authority to issue such an order,” but rather, may only order probation, a fine, or a term of imprisonment under 18 USC 3551.

However, the district court didn’t just order no contact. Because the trial judge had doubts about whether he could do so, the court also couched the order as a recommendation, suggesting to the Federal Bureau of Prisons that it do whatever it could to ensure that Dave not communicate with Veronica. While Dave’s lawyer complained about the recommendation as well, the appellate panel ignored his plaint, saying “we do not have jurisdiction to review the provision recommending the BOP monitor Dave’s communications.”

But what good is a mere recommendation? Pretty good, it turns out. No contact? The BOP has an app for that.

The BOP maintains a rather draconian program known as the Communications Management Unit. In its dry bureaucratic speak, the BOP says the purpose of the program is to “provide an inmate housing unit environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community. The ability to monitor such communication is necessary to ensure the safety, security, and orderly operation of correctional facilities, and protection of the public. The volume, frequency, and methods, of CMU inmate contact with persons in the community may be limited as necessary to achieve the goal of total monitoring…”

CMU inmates may write one letter a week – no more than six pages – to an approved recipient. They may send two e-mails a week, all to the same person, and they get not more than three 15-minute phone calls a month, only to family members. Everything gets listened to or read. Given that one of the criteria for assignment to a CMU is that “the inmate has attempted, or indicates a substantial likelihood that the inmate will contact victims of the inmate’s current offense of conviction,” Dave can be confident that the Circuit’s reversal of the no-contact order is a hollow win for him. What the district court can’t order, the Bureau of Prisons sure can.

The BOP currently only has a few CMUs. A quick check of the BOP inmate locator shows, unsurprisingly, that Dave is at one of the prisons that has such a unit. Until his release in 2045, Dave probably should not be expecting a visit from Veronica.

United States v. Duffin, Case No. 16-1616 (8th Cir., Dec. 28, 2016)

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MERCY ME

Commentators are growing increasingly weary of the Obama Administration’s self-adulation over the President’s clemency efforts, even as advocates become more frantic over the fact that come January 20th, the guy who last summer called clemency recipients “bad dudes” and warned one audience that “they’re walking the streets – sleep tight, folks,” will become President of the United States.

One advocate wrote last week that

there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a ‘nation of second chances’. Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, ‘thousands of individuals have applied for commutation, and only a fraction of these applications are approved.’ Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications. On the Department of Justice website, which tracks the rejections, the staggering list of names includes Ferrell Scott, whose application was denied on November 29. Scott is serving life with parole for pot offenses — precisely the kind of draconian sentence clemency exists to address.

We’ve previously complained that if an inmate fits into Obama’s clemency criteria – which themselves seem somewhat arbitrary – all he or she has done is to buy a lottery ticket. Consider the case of Alice Marie Johnson, a mother of five sentenced to life for a crack conspiracy in the 1990s. During her two decades in prison, she’s become an ordained minister and a mentor to young women. She has a job lined up upon release. Her daughter has collected over 100,000 signatures on a petition for clemency. Were she sentenced today for the same offense that got her life, her sentence would be substantially shorter. Yet she has been overlooked.

There’s no shortage of people on the potential pardon list. Besides the usual candidates – Edward Snowden, Hillary Clinton and Chelsea (nee Bradley) Manning – the efforts to obtain a pardon for Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud have increased. Last month, the Wall Street Journal editorialized for a pardon. This week, former deputy attorney general Phil Heymann joined the chorus in the Washington Post:

Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years. Worse, his sentence was based on perjured testimony and prosecutorial misconduct.

If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons. In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served. The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.

The foregoing raises some troubling concerns. First, if 100,000 signatures on a petition, an exemplary prison record, and a sympathetic inmate aren’t enough to get the Obama administration to grant clemency, then the system is truly a crapshoot. Second, if a 57-year old rabbi whose conviction is so shaky that over a hundred cops and prosecutors call for executive clemency gets ignored, then it’s pretty clear that no one but a drug offender will ever qualify for commutation under this Administration.

Still, the Administration promises more to come. One report predicted that we could “expect to see most pardons and the like in the month ahead focused on more non-violent drug offenders. There’s no shortage of such people incarcerated in U.S. prisons, so there are thousands of potential choices for Obama’s team to sift through by mid-January.”

As for Ms. Johnson, she believes that “the President has made an incredible push at helping to right the wrongs of our criminal justice system. I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes. But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others — so I also hope he moves quickly. I hope his administration will process all the applications for clemency currently waiting for the President’s review.”

The Intercept, Obama’s Clemency Problem – And Ours (Dec. 24, 2016)

Care2.com, Pardon Me? Who Obama May Pardon in His Last Month (Dec. 28, 2016)

Washington Post, 107 former Justice officials think this case was handled unjustly. DOJ must act. (Dec. 26, 2016)

Wall Street Journal, Obama Should Pardon This Iowa Kosher-Food Executive (Nov. 27, 2016)

CNN, Clemency seeker to Obama: please don’t forget us (Dec. 28, 2016)

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WHO YOU GONNA BELIEVE?

A few days ago, we reported that the success rate for post-conviction petitions in the Courts of Appeal hovers somewhere around 6%. There’s a reason for that.

Contrary to what a lot of do-it-yourself habeas corpus writ-writers clearly believe, success on a post-conviction attack on an inmate’s conviction or sentence is not pegged to how many cases you can cite in your pleading. And the number of Latin phrases you can spout ¬– while impressive to a student of the classics – is not proportional to the likelihood of winning a shorter sentence.

Post-conviction motions are fact-driven things. If you think you’re going to prevail, you had better have a lot of facts – good facts, facts that haven’t been put in the record before – and you had better be able to stitch those into a narrative that rings the bells of the Strickland v. Washington standard.

There is always a special problem when a district court is judging a claim of attorney ineffectiveness, and must choose between the credibility of an already-convicted defendant whom the court will probably never see again, and the word of a well-known defense attorney who appears in front of the court all the time. Whom is it more convenient to believe, a friend you see every day or some durn stranger?

Today’s case illustrates the point. Jose Rivera-Rivera worked for a Puerto Rican conspiracy as a drug runner, someone who supervised retail sellers’ day-to-day activities, supplied them with drugs for distribution, and collected proceeds. He was charged along with over 100 codefendants, in connection with a sprawling drug-trafficking enterprise operating in and around Ponce.

On the morning of trial, Jose – who was represented by court-appointed counsel named Raymond Esteves ¬– entered a straight-up guilty plea. Although the judge explained the benefits of the safety valve option, Jose was a stand-up guy: he refused to take it. He got a mandatory minimum 10 years.

Shortly after the sentence, Jose decided that “stand up” wasn’t all it was cracked up to be. He had his lawyer tell the court he wanted the safety valve after all, but that train had left the station. After a failed appeal, Jose filed a 28 USC 2255 claim that Ray was an ineffective attorney.

Jose said Ray never told him about a 9-year plea offer made by the government. The 2255 went to a hearing, and the tales were in conflict.

Jose said he had always been willing to plead guilty because he knew the government had a strong case. But, he claimed, his communications with lawyer Ray had been so bad that the attorney had never told him about a 9-year plea offer the government made in law in March 2010. Jose said later he showed up in court for what he thought was a pretrial hearing only to find out it was the trial, something else Raymond never told him. Because he felt completely unprepared, Jose said, he entered a straight-up plea then and there.

Ray had a different story. “Although he could not remember many of the details about the petitioner’s case given the passage of years between the dates of the critical events and the date of the evidentiary hearing,” the Court of Appeals said, “he recalled that he had discussed the 9-year plea offer with the petitioner” at least six times.” Ray was pretty foggy on the details, so the district court let him rely on his CJA voucher (which he had submitted to get paid for representing Jose) to refresh his recollection.

Unsurprisingly, the lawyer said he encouraged Jose to take the deal, but Jose insisted on seeking a more favorable offer or going to trial. Ray could not remember if he had passed the 9-year plea offer on to Jose before the deadline, but he said he urged Jose to consider it even after the deadline because he thought there would still be a chance to get the same terms. The CJA voucher corroborated that some of telephone calls Ray said he made were indeed made, and one entry specifically noted that Ray and Jose had discussed a plea offer.

The voucher also noted that the day after the government made the 9-year plea offer in writing, Ray made several telephone calls to Jose’s house. The next communication noted in the voucher (a telephone call on March 23, 2009) indicated that Ray spoke to Jose about “a plea offer.”

After the 2255 hearing, the district court found lawyer Ray’s version of events to be generally “consistent and credible,” and denied the 2255.

Everyone knows that “a party challenging a trial court’s factual findings faces a steep uphill climb.” The climb becomes an ascent of Mt. Everest when “the challenged findings hinge on the trier’s credibility determinations,” to which a reviewing court must afford great deference.

Last week, the 1st Circuit unsurprisingly upheld the district court’s findings. “We have made it pellucid,” the Court said, “that when the fact finder chooses between two plausible but competing views of the evidence, the fact finder’s choice cannot be clearly erroneous.” Here, the district court was confronted with two diametrically opposed accounts. The judge saw and heard the witnesses, “and rested his decision on a determination that [Ray’s] version of the salient events was more credible than [Jose’s] version. The record, considered as a whole, provides adequate support for the judge’s appraisal.”

The Court of Appeals suggested it was close: “Although the attorney was unable to recall some details concerning his handling of the petitioner’s case, he was able to pinpoint several important contacts… The record further supports [the attorney’s] version of events because it shows contemporaneous court filings and CJA voucher entries referencing plea negotiations… The conclusion suggested by the court filings is reinforced by the CJA voucher, which also references plea negotiations at various points. Those entries, made long before the petitioner brought his section 2255 motion, add weight to [the attorney’s] version of events.”

The appellate panel found it “troubling that [the lawyer] had so blurred a memory of his communications with [Jose]. But several years had passed between the critical events and the evidentiary hearing, and Jose’s testimony, like the attorney’s testimony, was not a model of precision. Moreover, it is difficult to square Jose’s claim that he never knew of any plea offer with either the court filings or the CJA voucher.”

Applying the “deferential standard of review,” the Circuit honored the “judge’s choice between imperfect alternatives.” The Court said, “The judge heard conflicting testimony and made a reasonable (though not inevitable) determination regarding credibility. On this scrambled record, there is no principled way in which we can find that determination to be clearly erroneous.”

The moral is that a 2255 petitioner should know what everything in the record says before he or she files. As John Adams once said, “Facts are stubborn things.” Don’t rely on your memory where there’s a better source.

Rivera-Rivera v. United States, Case No. 15-1921 (1st Cir., Dec. 23, 2016)

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A SIGNIFICANT LITTLE HOLDING

While many people were baking cookies and buying last-minute gifts, the U.S. Court of Appeals for the 9th Circuit last week was handing down a procedural ruling of some significance to attorney-defendant relations.

Manuel Yepiz and his friends were being tried for a number of violent crimes connected to their street gang, the Vineland Boys. As happens with a significant number of defendants, Manuel became concerned about his attorney. He wrote to the judge about it.

As any lawyer who has practiced for more than few months can tell you, heaven save us from the officious little minions in the clerk’s office. They will nitpick and flyspeck pleadings, and delight in rejecting them for some alleged procedural infirmity. Not enough copies, margins wrong, certificate of service not on a separate page… If the Continental Congress had tried to file the Declaration of Independence, some colonial-era clerk would have rejected it for John Hancock’s signature being too large.

We once got so frustrated at a clerk’s office that we actually filed a petition for mandamus, asking the court to order its clerk to accept filings, and to leave a determination of procedural adequacy to the judges. The court – which has to live with its clerk’s office – declined us.

In today’s case, there came a time when Manuel decided he wanted a new lawyer. There was plenty of time before trial, so new counsel should not have disrupted anything. The general 6th Amendment rule is that an accused has the right to discharge counsel for any reason or no reason” so long as the substitution does not cause significant delay or inefficiency or run afoul of other considerations, such as the fair, efficient and orderly administration of justice. In fact, where a defendant fires retained counsel and is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act at any stage of the proceedings.

Manuel’s right to trade in his lawyer was pretty clear. The problem was that to invoke his right, Manuel wrote a letter to the judge. When the letter got to the Clerk’s office, some assistant to an assistant ¬ following the local rules – sent it back to him without the judge ever seeing it.

The letter was returned along with a form from the clerk’s office called a “Notice of Document Discrepancies” (NDD). A checked box at the bottom of the NDD stated that Manuel’s letter was “NOT to be filed, but instead REJECTED.” The NDD did not indicate the basis for the court’s rejection, and the docket description of the document only indicated that the denial was based on the fact that “[p]arties should not write letter[s] to Judge.”

Manuel wrote twice more, but each time suffered the same fate: the judge never saw those letters, either.

Last week, the 9th Circuit said the district court’s failure to consider Manuel’s request was a structural defect in the trial requiring reversal. It did not matter, the Court of Appeals said, that the judge never saw it or that the court’s local rules required that such letters be returned b the clerk. The Circuit was troubled that the rejection provided too little detail as to the reason the letter was being returned:

“Because no explanation was provided, Yepiz was not given notice as to how he could properly present his request for new counsel, and as such, the local rules served to arbitrarily deny Yepiz’s constitutional rights. Under the circumstances of this case, therefore, we reject the government’s argument that the court was excused from its duty to inquire into Yepiz’s request because of Yepiz’s failure to comply with any local rule of procedure.”

The 9th concluded that “because the substitution would not have affected the court’s calendar, Yepiz was entitled to discharge his lawyer for any reason or no reason.” For that reason, the case was reversed.

One of the three judges on the panel wrote a detailed dissent, complaining among other things that the holding was contrary the local rules of all of the district courts in the circuit, and would clog up the works of the trial courts. This procedural ruling could well find its way to the Supreme Court, if the government is of a mind to seek certiorari.

United States v. Yepiz, Case No. 07-50051 (9th Cir., Dec. 20, 2016)

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A HOUSEFUL OF CHRISTMAS GUESTS…

We have all of the adult kids and spouses and sole grandkid here for Christmas and Hanukkah celebrations, so we don’t want to spend too much writing or, for that matter, complaining until next week.

Nevertheless, we want to say something about executive clemency. This past week saw another 153 people get clemency, and an additional 78 pardoned. That’s all well and good, but we have two points to make:

First, the interesting observation: Everyone knows that President Obama made grandiose promises about how he would commute 10,000 sentences this year, a figure later amended to 2,000. So far, with 28 days left before the inauguration, he has granted clemency to 1,324 people. It’s taken almost all of the year to accomplish that.

White House counsel Neil Eggleston has promised us that more commutations are coming, and others connected to the project have promised that the remaining 12,000 or so petitions will be acted upon. We have previously weighed the evidence for and against the idea that the President will grant a mass commutation before January 20th. There’s not much to go on, but…

Yesterday, we got a call from an attorney volunteering on the Clemency Project. She’s shepherding a clemency petition for a guy we’ve worked with before, and she relies on us for quick communication with her inmate. The lawyer told us she had heard from the clemency people that morning, and they urgently needed information about the inmate’s disciplinary record.

He has lived a pretty clean life in prison, so the report we returned was a good one. But we were curious that suddenly, a peculiar piece of information was needed so badly. Unfortunately, so far clemency has worked like a slot machine. If you qualify for consideration, all that buys you is a token. Put the token in the commutation slot machine, and pull the lever. Maybe you’ll win, probably you won’t.

But now, we wonder whether the end game’s afoot in Washington, and there is a sudden rush to move a mass of petitions through the system. We asked the clemency project attorney, and she told us “I personally don’t think the clemency board granted as many as it should or could have. But I’m also feeling the sense of urgency…”

It’s all reading tea leaves, but we think something out of the ordinary may be in the works on presidential commutations.

Our other point: We’re getting tired of watching Obama pat himself on the back over his criminal justice reform “legacy.” An hagiographic article last week argued that “by using the bully pulpit to frame justice reform as a major issue, Obama provided some coverage for mainstream legislators to support sound policy options.”

Ohio State University law professor Doug Berman, who writes the best sentencing blog on the Internet, feels like we do. He blasted the article, complaining that the “bully pulpit” line

makes me extra crazy because it falsely portrays Prez Obama as a bold leader who used the bully pulpit in order to provide “coverage for mainstream legislators to support sound policy options.” This could not be more backwards: Prez Obama was a timid and disappointing follower here, as his July 2015 NAACP speech about the need for reform came only AFTER “mainstream” politicians ranging from Rand Paul to Corey Booker, from Ted Cruz to Patrick Leahy, from Rick Perry to Deval Patrick, from Bobby Jindal to Jim Webb, from Chuck Grassley to Dick Durbin, from Jim Sensenbrenner to Bobby Scott, from Raul Labrador to Elijah Cummings, from Judy Chu to Mia Love, from Newt Gingrich to even Chris Christie had all spoken in some significant ways about the need for significant criminal justice reform and especially sentencing reform (and I am sure I am leaving out many others).

Professor Berman said he has been “seeing… the worst tendencies of the “commentariat class” since the election. Specifically, even though Prez Obama’s record on sentencing reform is relatively unimpressive (especially as compared to his record on lots of other issues), many on the left seem eager to assert that Prez Obama really achieved a lot in this arena and then go on to gnash teeth about reform momentum being halted now that there is a new sheriff in town. This narrative entirely misses, in my opinion, not only (a) the reality that Prez Obama himself retarded reform momentum in many ways (e.g., by getting such a late start on clemency, by resisting mens rea reforms that could have been included in bipartisan sentencing reform bills), but also (b) the (significant?) possibility that many GOP leaders in Congress who have actively promoted and worked hard on federal sentencing reform bills will keep up that work in the years to come.”

Talk Poverty, The Obama Legacy: Chipping Away at Mass Incarceration (Dec. 21, 2016)

Sentencing Law and Policy, “The Obama Legacy: Chipping Away at Mass Incarceration” … but …”  (Dec. 21, 2016)