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PANIC SETS IN

There are only about as many days left in the Obama Administration as Jesus spent in the wilderness, and just as the New Testament reports that Jesus was tempted during his sojourn there, some suspect – and others pray – that the President will be tempted to announce one final, magnificent clemency gesture for the history books.

It’s been over two weeks since the last batch of commutations – 79 inmates (and two turkey pardons) just before Thanksgiving – and hopes that additional lists would be rolling out of the White House doors on an almost-daily basis are dwindling as the final days of Obama slip away.

Meanwhile, the Dept. of Justice quietly released a list last week of another 600 inmate clemency petitions that were denied by Obama. The list of denials since October 2010 is over 14,000 names long. For those keeping score, this means that the chance of a commutation petition being granted is about 6.6%, which are about slot-machine odds.

We calculate that there are still over 10,000 commutation petitions on file, and about 1,000 grants to go if the President intends to meet his goal of 2,000 commutations granted.

Lately, a lot of the talk has turned to pardons, as those with political agendas talk up their favorites: the Amazon.com of espionage/American hero (choose your sobriquet) Edward Snowden; transgender traitor/Wikileaks champion Army private Chelsea (nee Bradley) Manning; wandering Army Sgt. Bowe Bergdahl; or email warrior Hillary Clinton. Others are calling for the pardon of a kosher foods company executive convicted of bank fraud. And last week, the sons of convicted spy Ethel Rosenberg returned to the White House, more than 50 years after pleading unsuccessfully to spare her life, to deliver a last-ditch appeal to Obama to exonerate her amid new evidence. Rumors even floated that the President had granted clemency en masse to the hapless Cleveland Browns.

That’s not to mention the thousands of other clemency petitions on file from federal inmates who were not convicted of drug crimes. No one’s talking about those, and the likelihood that Obama will grant any of those only slightly exceeds the chance that the earth will plummet into the sun before you read this.

But the drumbeats for a sweeping commutation of drug sentences are insistent… and getting louder. Last week, the Washington Post tried to humanize Obama’s commutation decisions, reporting on a clemency application that was denied:

Ferrell Scott was sentenced to life in prison for possession and conspiracy to distribute marijuana, a drug that’s now legal in many states and turning a handsome profit for the (primarily white) pot industry. Scott, like many nonviolent drug offenders serving long sentences, is black. Without any chance at parole, despite an exemplary behavior record, he appealed to President Obama for clemency. He found out that his bid for clemency had been denied when he got an email about “bad news” from a friend. Thinking something bad had happened to his 93-year-old mother, he called home. His daughter answered, crying, and told him the news.

“She cried like a baby and she was telling me that she didn’t know what she was supposed to do now. Couldn’t understand it,” Scott tells The Watch in a phone interview.

The Post’s article on Ferrell’s denial came two days after it wrote about Lori Claire Kavitz, who’s serving 24 years for a meth conspiracy, and is supported in her clemency bid by her sentencing judge, among others.

Yesterday, Ohio State University law professor Doug Berman noted in his sentencing blog that he had been “aggressively calling for Prez Obama to make significant use of his clemency power from literally his first day in office. This January 20, 2009 post was titled ‘Is it too early to start demanding President Obama use his clemency power?’ and in 2010 I authored this article in the New England Journal on Criminal and Civil Confinement under the title ‘Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders.’ I suppose I should be happy that, with Prez Obama on his way out the door, a lot of other folks are now finally joining this call for action with some urgency.”

Prof. Berman was commenting on a Tuesday editorial in The New York Times that called for Obama to throw a ‘Hail Mary’ while he still can. The Times complained that “for most of his presidency, Barack Obama treated mercy as an afterthought. Even as thousands of men and women endured outrageously long sentences for low-level, nonviolent drug offenses as a result of the nation’s misguided drug war, Mr. Obama granted relief to only a tiny handful.” When Obama finally got his 2014 clemency initiative underway, the Times said, “that clemency process has moved far too slowly — beset by both administrative obstacles and bureaucratic resistance — grants have been accelerating throughout 2016.”

While Obama “has now shortened or ended the sentences of more than 1,000 prisoners,” the Times complained, “there are thousands more people deserving of release, but their prospects under the next administration don’t look good.” The Times argued for a single commutation blast that addressed every sentence imposed prior to 2010 that would have been less had the Fair Sentencing Act of 2010 been on the books. That law, which reduced the 100:1 sentencing disparity between powder cocaine and crack, did much to equalize sentences imposed after its passage, but the Act was not retroactive. The Times suggested:

Up to now, the president has reviewed clemency requests on a case-by-case basis. With only weeks left in office, Mr. Obama should consider a bolder approach: blanket commutations for those inmates still serving time under an old law that punished possession or sale of crack cocaine far more harshly than powder cocaine — a meaningless distinction that sent disproportionate numbers of young black and Latino men to prison for decades.

An open letter to the President last week signed by dozens of law professors and sentencing reform advocates – as well as a handful of former judges and prosecutors, made the same FSA suggestion, and went even further:

The U.S. Sentencing Commission staff could identify these individuals and DOJ could use prison placement (to a camp – the lowest level of federal incarceration – or to a low or medium facility) as a surrogate for how an individual has behaved in prison. There is bipartisan agreement that pre-Fair Sentencing Act crack sentences are unjust and have disproportionately affected people of color, but there is no mechanism for addressing that injustice outside of clemency.

People who have received sentences in narcotic cases involving other drugs besides crack who through good behavior worked their way down to placement in a camp or low or medium facility could receive similar consideration. You could also give special priority to veterans and older individuals and could consider granting relief to individuals who have been labeled as career offenders who have only narcotics as a triggering offense, a group that the Sentencing Commission recently urged Congress to treat differently because of their lower rates of recidivism and less culpable conduct. Similarly, those individuals who have received double mandatory minimum sentences where the individual has only drug convictions are calling out for relief.

The open letter contended that “the Constitution envisions precisely this kind of corrective against undue severity in the law,” and told Obama what he undoubtedly already knows, that “with a stroke of your pen, you could change the lives of thousands of individuals and their families and write a legacy that will stand throughout history.”

So far, no one’s making money betting on how this Administration will exercise the pardon and clemency power. With 42 days left, the odds are nearly the same that he will grant clemency to only a trickle more and that he’ll unlock the prison doors. About the only sure bet is the chances for clemency will equal a snowball’s odds in hell after January 20th.

Washington Post, He got life without parole for pot. And he was just denied clemency (December 2, 2016)

The New York Times, President Obama’s Last Chance to Show Mercy (December 6, 2016)

Berman, Sentencing Law and Policy, At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push (Dec. 7, 2016)

Open Letter to President Obama (November 29, 2016)

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HE’S B-A-A-CK

As child porn cases go, this one is midrange seamy. Using some rather sophisticated investigative techniques, one of the federal alphabet agencies tracked a series of anonymous Internet kiddie porn right to the victim’s home. The shocked mom identified your typical sketchy Uncle Ernie-type who had babysat the child, a guy named Nathan Brown. The cops searched his mobile home and found computers with hundreds of thousands of child porn photos and videos, including the series of the girl found on the web.

Nathan pled guilty to three counts of production of child porn, one for each of three kids he had photographed, and argued for the mandatory minimum sentence. The Guidelines, however, called for more. When all of the many enhancements peculiar to child pornography were piled on, Nathan – who had no prior record – had run up an astounding offense level of 54 (reduced to a final score of 51 because he pled guilty). Any score of 43 or over, of course, is life in prison without parole. Because the three offenses of conviction each had a 20-year maximum, the sentencing judge gave Nathan 20 years on each count, consecutive (or “running wild,” as defendants call it) for a sentence of 720 months (60 years).

Yesterday, the 60-year sentence divided a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit for a second time. Last June, the panel sent the case back to the trial court for possible resentencing. The panel said that the trial court may have had an “erroneous understanding” of the facts — including that the judge said Nathan had destroyed the lives of three children, when, in fact, one of the children was asleep when she was videotaped and was thus unaware.

Upon calm reflection, the district judge hammered Nathan with the same 60 years, and the case came back to the 2nd Circuit. Yesterday, two judges on the panel upheld the sentence, with Judge Rosemary Pooler dissenting and Judge Robert Sack concurring.

“Given the seriousness of the crimes,” the Court ruled, 60 years “is within the realm of punishments that this court has upheld as reasonable for production of child pornography.” The decision cited the extraordinary quantity of other child pornography Nathan possessed, the psychological harm he caused to two victims, and what the district court said was Nathan’s lack of true remorse.

Both a concurrence and a dissenting opinion issued in the case merit study. Both raise legitimate questions about the draconian Guidelines sentencing regime governing child pornography offenses (in Nathan’s case, six different sentencing enhancements “catapulted” his Guideline range to 20 levels above kidnapping). As well, the two opinions – while of trifling legal consequence – contain some fascinating observations about imposition of sentences.

Judge Pooler observed that Nathan “Brown could have murdered his victims, and he would not have received a harsher sentence.” She argued that the district court “erred in giving Brown the same sentence for his conduct with respect to the third victim as for his conduct for the other two victims, even though the other two had suffered severe psychological damage, and thus had been harmed far more seriously.” This meant, roughly put, that a third of Nathan’s sentence was based on his having “destroyed” the life of a victim “despite an undisputed lack of evidence that the victim’s life had been affected at all.”

The district judge, engaging in what is all too normal hyperbole, told Nathan that he was “the worst kind of dangerous sex offender.” Judge Pooler said that, while the offenses are serious, the statement was untrue. “Brown did not forcibly rape his victims or subject them to physical harm,” she wrote. “He took pictures of the genitalia of three girls, usually while they were sleeping, by moving their underwear to the side. His offense did not involve penetration, extreme violence, abduction or trafficking.”

Judge Sack said in his concurrence that he was troubled by the sentence imposed by the district court:

The offenses for which the defendant was sentenced after pleading guilty to them involved a deeply disturbing combination of child molestation and the making, watching, and circulation of obscene child pornography. The details of the charged conduct challenge the adequacy of English-language adjectives to characterize them…

To borrow a phrase from death-penalty cases and twist it, child pornography is different. Focusing on subjects that are associated with our most powerful taboos, these cases evoke uniquely strong, if differing, emotional, moral, and cultural reactions from judges, necessarily based on the differing beliefs, values, sensitivities, and life experiences of those judges…

When we go beyond what is necessary to resolve this sort of case… we risk the appearance of explicitly or implicitly voicing our moral indignation rather than exercising our legal judgment, which is of course our only charge.

Judge Sack further observed that “sentencing judges must apply the law to the facts (including the fact of how others have emotionally responded to the crime), not vindicate their own anger and agitation or appear to be doing so… Similarly, part of our job as reviewing judges is to avoid losing our own objectivity or focus because of our own disgust. Because of the reaction such a crime evokes in us and in the trial court, we must be particularly assiduous in assuring objectivity and propriety in assessing the sentence imposed.”

United States v. Brown, Case No. 12‐cr‐145 (2nd Cir., Dec. 6, 2016)

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ECONOMIC CRIME SENTENCES ARE A SNAP

There’s a certain amount of irony in the Sentencing Guidelines’ approach to calculating fraud sentences. The process is akin to buying a car. You find a base price you can live with, but then you find that the options – such as sunroof, alloy wheels, sound system, steering wheel – all add dramatically to the price. Before you get out the door, you’ve also paid for extended warranties, dent and ding protection, and a few hundred bucks for document prep (whatever that is). And just like that, your sharp-eyed deal has morphed into the national debt.

The fraud guidelines in USSG Sec. 2B1.1 are like that. The base offense level for fraud is 6, which itself would yield a sentence of as low as probation. But before the defendant gets out the courthouse door, the amount of actual or intended loss may have more than doubled that number, and a gallimaufry of enhancements buried in the fine print – over 20 of them at last count – have added to it. It isn’t hyperbolic at all to suggest that the defendants would have been better off (sentencing-wise, at least) simply robbing their victims with a mask and a gun.

In a curious decision last week, the 2nd Circuit implied what many commentators have already argued, that the perverse and overblown sentencing effect of the 2B1.1 enhancements on a defendant’s base offense level — a sentencing construct for fraud “unknown to other sentencing systems” — virtually dictates that a district court impose a non-Guidelines sentence.

Ahmed Algahaim owned a suburban New York convenience store. Like many stores in this day and age of ubiquitous food stamps (now called SNAP, the Supplemental Nutrition Assistance Program), he accepted the three most widely-used pieces of plastic: Mastercard, Visa and EBT cards.

But unlike many stores, Ahmed would swap the swipe of a SNAP EBT card for cash (at a substantial discount, of course). His customers liked this, of course. Why buy cereal, oranges and milk when you can get 70 cents on the SNAP dollar to use to buy cigarettes and beer?

But while his patrons thought Ahmed’s scheme put the “convenient” in convenience store, the government took a dim view of the practice. Ahmed was convicted of food stamp fraud.

Most of the appeal was pretty plain vanilla, but a section of the decision considering Ahmed’s sentencing range was fascinating. His Guidelines calculation began with a base of 6. From 2B1.1’s loss table, 16 levels were added because of the amount of loss, for an adjusted offense level of 22 — three times the base level. With no prior criminal record, he got 21 months’ in prison. No one argued that his sentence was calculated correctly under the Guidelines.

To virtually everyone in the federal system, a guy with a 21-month sentence is considered a short-timer the day he arrives at the door. Nevertheless, the Court of Appeals remanded the case for resentencing.

2nd Circuit Judge Jon Newman acknowledged that it was within the Sentencing Commission’s authority to construct a sentencing scheme that “uses loss amount as the predominant determination of the adjusted offense level for monetary offenses.” Nevertheless, he observed that the Commission could (and should) have approached the problem differently:

For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and then permitted adjustments up or down to reflect especially large or small amounts of loss. Instead the Commission valued fraud (and theft and embezzlement) at level six, which translates in criminal history category I to a sentence as low as probation, and then let the amount of loss, finely calibrated into sixteen categories, become the principal determinant of the adjusted offense level and hence the corresponding sentencing range. This approach, unknown to other sentencing systems, was one the Commission was entitled to take, but its unusualness is a circumstance that a sentencing court is entitled to consider.

The Court surprisingly concluded that “where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” The Circuit didn’t say the sentence was erroneous in any way or even that the district court was unaware of its power to impose an alternative sentence. Rather, the 2nd just said in so many words that the cumulative effect of overlapping enhancements leads to nonsensical sentences, and that district courts should be sensitive to that.

Two 2nd Circuit criminal defense lawyers observed that “many judges have stated that the Guidelines are not helpful in white-collar cases and that their emphasis on loss can lead to results that are “patently unreasonable.” Practitioners have also advocated for shorter sentences in cases involving relatively low loss amounts or where the defendant had no prior record. See ABA Criminal Justice Section, A Report on Behalf of the ABA Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes (November 10, 2014). To the extent that district judges needed any further encouragement, Judge Newman’s decision lets district judges know that a Guidelines sentence need not be imposed where the “significant effect of the loss enhancement leads to an unduly long sentence.”

United States v. Algahaim, Case Nos. 15-2024(L), 15-2069(Con) (2nd Cir., Dec. 1, 2016)

Stephanie Teplin and Harry Sandick, Food For Thought: Court of Appeals Questions Relevance Of Guidelines To Case Of Fraud Involving Supplemental Nutrition Assistance Program (Dec. 2, 2016)

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BUT HE WAS HIGHLY SKILLED

Chapter 3 enhancements to the United States Sentencing Guidelines provide any number of opportunities for judicial mischief. The defendant’s base offense level can be increased by having a managerial role in the offense, for obstructing justice, using a minor in an offense, reckless endangerment during flight, vulnerable victim… There’s quite a list of enhancements, and about the only commonality among them is that trying to define what conduct should qualify a defendant for the enhancement is akin to nailing Jello onto the wall.

Guideline 3B1.3, for example, provides that “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.” And what might a “special skill” be? The Application Notes for Sec. 3B1.3 say that “a ‘special skill’ refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.”

Tell that to Jose Villafranca. He got caught in Texas driving a truckload of illegal aliens, an offense for which he got a 57-month sentence. The district court slapped him with a 2-level enhancement – raising his sentencing range by about a year – for his “special skill” of holding a commercial driver’s license.

Last week, the 5th Circuit agreed with the upward adjustment, holding that the “ability to drive a tractor trailer truck as evidenced by the possession of a commercial driver’s license constitutes a special skill for purposes of Sec.3B1.3.” Relying on a prior, unreported case, the court of appeals observed that Jose “had 15 years of commercial truck-driving experience, acted as a licensed truck driver purporting to carry a legitimate load through a checkpoint on one of the nation’s busiest corridors where there are thousands of other tractor-trailers.” The Court argued that “without those special skills, he would have been unable to tow the tractors in which the aliens were hidden… by carrying the aliens in the truck’s trailer, the defendant gave the appearance that he was hauling a legitimate load and made it much more difficult to identify the aliens.”

Of course, the same can be said of a person holding a plain vanilla driver’s license. Knowing how to drive a car with a couple of aliens in the trunk would be similarly skillful. There are about 3.5 million licensed truck drivers in America. Indeed, it is not necessary to hold the license to be knowhow to drive an 18-wheeler. (We confess that years ago, we began driving a tractor-trailer for a produce farm with 10 minutes of on-the-road training).

We’re not denying that there are many very skilled, very experienced truck drivers on the roads. Rather, we’re arguing that the test is whether skill that required much training and education contributed substantially to committing the crime. To make the point, we’d note that had Al Qaeda used air transport pilots on 9/11, those skills would been used to turn the aircraft into the flying bombs they became. But using a few mutts who had never soloed an airplane – let alone held a pilot’s license – was enough to carry out the attack. Likewise in this case, anyone with an hour’s training could have driven a tractor-trailer through a customs station.

This decision makes a mockery of the Application Note, unless “truck driver” is a logical progression of the subset “pilots, lawyers, doctors, accountants, chemists, and demolition experts.” If the trial judge feels the need to vary above the Guidelines range for some reason, he or she should simply do so, rather than reducing Chapter 3 of the Guidelines to an absurdity with bogus enhancements.

United States v. Villafranca, Case No. 16-40022 (5th Cir., Dec. 1, 2016)

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TRACKING SCUMBAGS

Oliver Wendell Holmes once observed that “hard cases, like notorious ones, make bad law.” Today’s decision is an apt illustration of that aphorism.

Let’s not pull any punches. Jabar Gilliam is a scumbag. Having taken on a troubled 16-year old named Jasmin as his “girlfriend,” he took her from Baltimore to New York so she could turn tricks for him. He beat her up. He raped her. He threatened to turn her younger sister into a prostitute if Jasmin refused to let him pimp her.

‘The fact that Jasmin has a foster mother and a social worker assigned to her suggests that her life hadn’t been roses before Jabar got his hands on her. Yet someone cared enough that, when Jabar spirited her off to the Big Apple, her disappearance was immediately reported to the police. The locals got the Maryland State Police involved right away. Jasmin has told her foster mother about her new boyfriend Jabar, and it didn’t take the police long to figure out it was Mr. Gilliam.

An MSP investigator was on the case within three days of Jasmin’s disappearance. After talking to Jasmin’s biological mother – whom Jabar had apparently told he intended to pimp her daughter – the investigator contacted Sprint. He told the cellphone provider he was “investigating a missing child who is . . . being prostituted,” and requested GPS location information for Jabar’s cell phone. He said that he was making the request because of “an exigent situation involving … immediate danger of death or serious bodily injury to a person.” Sprint promptly complied, and began feeding Jabar’s real-time GPS location information to the MSP investigator, who passed the information on to the FBI and NYPD.

The same day, Jasmin called her biological mother from the Bronx apartment of Gilliam’s mother. Sprint’s location information placed Jabar’s cellphone nearby. Canvassing the neighborhood, two New York cops saw Jabar and Jasmin on the street and followed them to an apartment building. When one of them confronted Jabar, he tried to run. The decision dryly reports “a scuffle ensued, after which Gilliam was arrested.” We can only hope they displayed the same restraint for which the NYPD is well known.

Jabar was convicted of sex trafficking of a minor by force, fraud, or coercion in violation of 18 U.S.C. 1591(a), (b)(1), and (b)(2), and of transporting a minor in interstate commerce for prostitution in violation of 18 U.S.C. 2423(a). He got 20 years. At trial, he challenging the use of GPS location information to find and arrest him. The district court ruled that the Stored Communications Act, 18 U.S.C. §2702(c)(4), authorized, and under the 4th Amendment, exigent circumstances permitted the MSP to obtain location information from Sprint without a warrant.

Yesterday, the 2nd Circuit upheld the conviction. Considering the alternative – letting Jabar walk out of prison a free pimp – the outcome was probably preordained. Yet in doing so, the Court has sanctioned the incremental creep of government intrusion into individual privacy.

The Stored Communications Act says that a provider like Sprint “may divulge a record or other information pertaining to a subscriber . . . to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” The disclosure may not include the contents of the communications, but the Court had no trouble concluding that “other information” included GPS data.

The Court’s understandable concern for Jasmin’s well-being led it to easily conclude that the situation involved “an emergency involving danger of . . . serious physical injury.” The Court said “we think it obvious that “involving” includes a realistic threat of such injury, not just a completed injury.” To the MSP officer, the Circuit ruled, “the evidence available… at the time of the search for Gilliam’s location was compelling. Based on discussions with Jasmin’s foster mother, social worker, and biological mother, law enforcement officers had a substantial basis to believe that Gilliam was bringing Jasmin to New York City to require her to work there as a prostitute. That type of sexual exploitation of a minor has often been found to pose a significant risk of serious bodily injury. As the 9th Circuit has observed, prostitution of a child involves the risk of assault or physical abuse by the pimp’s customers or by the pimp himself.”

The 2nd admitted that while “several courts have found that exigent circumstances justified warrantless entry into premises to avoid risk of injury to a minor held there… Locating on the streets a victim of sexual exploitation might seem to present a less immediate need for police action than entering premises where such a victim is being held, but it is nonetheless sufficient to constitute exigent circumstances.” The Circuit ruled that the existence of “exigent circumstances” satisfied both the Stored Communications Act and the 4th Amendment.

There’s nothing quite as odious to polite society as prostitution. Recent blending of the scourge of human trafficking with long-standing societal abhorrence of the sex trade has made it all the worse. Here, the evidence is that Jasmin told Jabar when she met him that she was 17 years old and currently whoring for another pimp. No question she was a victim – indeed an underage victim – but she was certainly not innocent in the nonlegal sense. And of course, it turned out Jabar had hit her and that she was not a willing participant in his pimp practice.

But the expansive application of the exigent circumstances doctrine in this case – easy to do because of the appalling nature of the offense – is troubling. Based on a reasonable belief that someone was engaging in an offense that could lead to other offenses – physical abuse, for example – the police were able to access real-time location information and track a suspect until they caught him.

The appellate panel said that Congress has deemed it reasonable to subordinate any individual privacy interest in cell phone location information to society’s more compelling interest in preventing an imminent threat of death or serious bodily injury, and has therefore given  service providers the authority to decide whether there existed an emergency involving danger of death or serious physical injury to any person.” But this was danger by statistic or anecdote. There are thousands of people in America plying the sex trade, and what made this case a federal crime was that the victim was a little more than a year from the age of majority. The danger to her at age 16+ was not statistically greater than the danger to her at age 18, at which time Jabar’s disgusting conduct would no longer be a crime. As the opioid crisis illustrates, illegal drugs pose a risk of physical injury and death. Would this be enough to justify warrantless real-time location monitoring of suspect drug traffickers?

Oliver was right: hard cases do make bad law.

United States v. Gilliam, Case No. 15-387 (2nd Cir. Dec. 1, 2016)

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JUST FOLLOW THE (NEW) RULES

Some changes in the Federal Rules, going into effect today, have gotten a fair amount of press. Others, as is usually the case with modifications to procedural rules, have been all but ignored.

A change to Rule 41 of the Federal Rules of Criminal Procedure expands the government’s surveillance capabilities after an 11th hour Congressional attempt to halt the rule change failed.

The modification to Rule 41 – which governs warrants for search and seizure procedures – gives judges the power to issue warrants allowing for remote access, search, seizure, or copying of electronic data when the location of the data has “been concealed through technological means” or when the information is located on protected devices and have been “damaged without authorization and are located in five or more districts.”

Privacy organizations such as the Electronic Frontier Foundation (EFF) and Access Now have argued the modified rule presents a threat to just about any computer user, even one using privacy tools like Virtual Private Networks (VPNs) or the Tor browser, which conceal a user’s location and online activities.

In a blog post, EFF’s activism director Rainey Reitman argued

there are countless reasons people may want to use technology to shield their privacy. From journalists communicating with sources to victims of domestic violence seeking information on legal services, people worldwide depend on privacy tools for both safety and security. Millions of people who have nothing in particular to hide may also choose to use privacy tools just because they’re concerned about government surveillance of the Internet, or because they don’t like leaving a data trail around haphazardly. If this rule change is not stopped, anyone who is using any technological means to safeguard their location privacy could find themselves suddenly in the jurisdiction of a prosecutor-friendly or technically-naïve judge, anywhere in the country.”

The rule also has implications for users who are compromised by malicious software and are victimized by someone else’s activity.

But there are less controversial rules changes, too. The Federal Rules of Appellate Procedures seek to put the “brief” back in “brief,” cutting the number of words allowed in an appellant’s brief from 14,000 to 13,000. The length of opposition and reply briefs change as well, and – for the first time – a word limit is placed on petitions for rehearing.

Back in the days of horse and buggy, whenever a lawyer had to respond to a pleading filed by another lawyer, he or she could add three days to the time allowed to respond if the pleading had been delivered by mail. The federal courts have shifted completely to service of pleadings by email – the courts’ electronic case filing (ECF) system. However, the Federal Rules of Civil Procedure still provided for the additional three days when the pleading was delivered by ECF.

The Rules Committee Comments has now concluded that the three-day additional time is no longer necessary. The Committee comments that “Rule 5(b)(2) was amended in 2001 to provide for service by electronic means. Although electronic transmission seemed virtually instantaneous even then, electronic service was included in the modes of service that allow 3 added days to act after being served. There were concerns that the transmission might be delayed for some time, and particular concerns that incompatible systems might make it difficult or impossible to open attachments. Those concerns have been substantially alleviated by advances in technology and in widespread skill in using electronic transmission.”

Thus, the 3-day time dodge, enjoyed by procrastinating lawyers everywhere, has now been written out of the Rules of Civil Procedure.

This elimination of the three-day extension for ECF service makes sense. Deadlines should be simple to calculate. 

Of interest to pro se prison litigants, the Federal Rules of Appellate Procedure have now made use of the prison legal mail system mandatory. Under the prison “mailbox rule,” the Supreme Court held in Houston v. Lack, a prisoner is deemed to have filed a pleading the moment he or she places it in the prison’s mailbox. Most prisons operate a “legal mail” system, where inmates deliver mail to the courts to an officer, who stamps the envelope with the date of delivery and logs it in a permanent record.

Changes in the Federal Rules of Appellate Procedure now mandate that a prisoner seeking to take advantage of the prison “mailbox rule” must use the institution’s legal mail system (if there is one), and must accompany the filing with “a declaration in compliance with 28 U.S.C. Sec. 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or evidence (such as a postmark or date stamp) showing that the [filing] was so deposited and that postage was prepaid.” A prisoner may file the declaration later, with the Court’s permission, but who wants to gamble on getting that OK’d?

The new mandatory use of legal mail and the declaration applies to all filings a prisoner makes in the Court of Appeals starting on December 1.

The Indiana Lawyer, Federal Bar Update: Rule amendments take effect Dec. 1 (Nov. 16, 2016)

Fedscoop, DOJ praises vastly expanded government hacking power (Nov. 22, 2016)

International Business Times, FBI, NSA And Rule 41: Changes To Federal Rules Expand Government’s Hacking Capabilities (Nov. 30, 2016)

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SUPREME COURT COOL TO ORAL ARGUMENT IN BECKLES

A largely skeptical Supreme Court heard oral argument in Beckles v. United States on Monday. Beckles considers whether Johnson v. United States applies to the “career offender” sentencing guidelines in Chapter 4B, leaving observers with the impression that the Court might find a little vagueness in the United States Sentencing Guidelines to be expected, and not unconstitutionally bad.

Justice Kagan recused herself, so the case was heard by only seven judges, Justice Scalia’s seat still being vacant.

Johnson v. United States, decided in June 2015, held that the residual clause in the definition of “crime of violence” in the Armed Career Criminal Act, 18 U.S.C. 924(e), was unconstitutionally vague. Similar language is found a number of other places in the statutes and the Sentencing Guidelines. In one case, the question of whether Johnson applies to the definition of “crime of violence” in 18 U.S.C. 16(b), will be argued in the Supreme Court in Lynch v. Dimaya, which was accepted for Supreme Court review at the end of last September.

In Beckles, the Government changed its position after the 11th Circuit appeal that resulted in this case, leaving the Supreme Court to appoint a lawyer to defend the Circuit’s ruling. The Department of Justice’s position before the Supreme Court was a strange amalgam: while conceding that the career offender Guidelines are unconstitutionally vague under Johnson, the Government argued against making such a ruling retroactive. It said that if the court were to rule that Johnson applies retroactively to Guidelines career offender sentences, there would be “unwarranted costs on the public to the extent that it releases dangerous recidivists into communities.”

Part of the complexity of the argument resulted from the Government taking what Justice Kennedy criticized as an inconsistent position. The Government argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world. But on the other hand, the Government’s  contention that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive. It unconvincingly relied on a distinction between “likelihood of a sentence” and “eligibility for a sentence” as the reason for the different positions on the vagueness question and the retroactivity question.

The court-appointed attorney defending the 11th Circuit decision argued that Travis Beckles’ position would call other Guidelines sentencing enhancements — such as the abuse of trust under U.S.S.G. Sec. 3B1.3 — into question. He suggested that the core principles of sentencing, such as adequate deterrence, are “even more vague” than the career offender residual clause.

Justice Alito picked up on that point, observing that the sentencing guidelines are replete with what could be called vague phrases. “I mean, I just opened them at random,” Justice Alito said. “I can see provisions that would generate a — you know, an arguable vagueness challenge if they were in a criminal statute.”

Beckles shows just how complicated the Court’s middle path on sentencing has become. The Court is struggling to regulate an advisory system in light of the fact that the purely discretionary system that came before the Guidelines was essentially unregulated. Travis Beckles’ attorney spent much of her argument fending off questions by four Justices – Alito, Breyer, Kennedy, and Chief Justice Roberts – about how a Guideline could be unconstitutionally vague when the purely discretionary system used by federal courts before the Guidelines were adopted was constitutionally permissible.

Later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system. “It would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it’s too vague to be applied,” Roberts observed at one point.

Under sympathetic questioning from Justice Sotomayor, Beckles’ attorney rejected predictions that retroactivity would cause chaos in the courts. She noted that the 9th Circuit already allows defendants to challenge sentencing guidelines on vagueness, and that those challenges have not caused any land rush on the courts.

Other unusual aspects of the Court’s post-Booker law were also on display. Chief Justice Roberts and Justice Alito both asked whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines in Peugh v. United States (2013) and Molina-Martinez v. United States (2016) should endure in the face of changing sentencing patterns in the district courts. Justice Breyer, who has a history with the Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.

Justice Ginsburg suggested that the case could be decided without reaching the questions vagueness or retroactivity, but the Government urged the Court not to do that, noting that many cases pending in the lower courts raise the vagueness and the retroactivity.

One law professor said “it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.”

If the Supreme Court acts as it has in the past, a decision will issue in Beckles anytime from February to April.

Beckles v. United States, Case No. 15-8544 (Supreme Court of the United States)

The Hill, Justices weigh scope of federal sentencing guidelines (Nov. 28, 2016)

SCOTUSBlog.com, Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines (Nov. 21, 2016)

Federal Sentencing Blog, Carissa Hessick, Beckles and the Continued Complexity of Post-Booker Federal Sentencing (Nov. 28, 2016)

Law360.com, Justices Loath To Call Guideline Doubling Sentences ‘Vague’ (Nov. 28, 2016)

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THE SNITCH IN YOUR POCKET

Everyone knows that one of the government’s canniest bloodhounds can be found in your back pocket. By using cell tower data – even if your cellphone is not spewing GPS information – Uncle Sam can track you down within a hundred yards, and not even break a sweat. Sure, the Galaxy Note 7 can catch your pants on fire. But it can bring the heat in more ways than just that.

But sometimes, even more precision is needed than mere triangulation. That’s where the Stingray comes in. A Stingray, also known as a cell site simulator, determines a phone’s location by spoofing a cell tower, and thus tricking a cellphone into sending it a stream of data. Stingrays are electronic vacuum cleaners, sucking up not just transmissions that were spoofed from a target’s phone, but information from all other cellphones in the vicinity.

Naturally, a gizmo like the Stingray is all but irresistible to a whole alphabet soupbowl of federal and state agencies. Because irritating defense attorneys would only file a lot of foolish motions about privacy and the 4th Amendment and such, the agencies have run a concerted maskirovka over the last six years or so to hide the fact that they were spoofing cell service in order to catch people.

In recent years, the use of Stingrays and similar devices has come under increased scrutiny. Last year, the Department of Homeland Security and the Department of Justice both said they were adopting new policies that required a warrant for use of the spoofers.

Last week, a divided 7th Circuit panel held that use of Stingray to catch a parole violator – an arrest that resulted in agents finding a gun and convicting the defendant of felon-in-possession – did not require a warrant. The decision marks the first time that questions regarding the proper use of Stingrays, also known as cell-site simulators, have reached the federal appellate level.

Damian Patrick had an outstanding warrant for a probation violation and was found via the use of a stingray in Milwaukee in 2013. The Milwaukee police got a search warrant authorizing them to locate Damian using cellphone data. His phone ratted him out, which enabled the police to find him. When they arrested him, he was packing heat.

Damian challenged the search and seizure of the gun, without which there would not have been a felon-in-possession conviction. He argued that his person was not contraband or the proceeds of a crime, and that it therefore was off limits to investigation.

As we reported last July, a Southern District of New York trial judge ruled in United States v. Lambis, Case No. 15cr734 (S.D.N.Y. July 12, 2016), that use of a Stingray requires a warrant. But the 7th US Circuit Court of Appeals decided last Wednesday that the fact that law enforcement used the Stingray against Patrick is immaterial. The Court said that

a person wanted on probable cause (and an arrest warrant) who is taken into custody in a public place, where he had no legitimate expectation of privacy, cannot complain about how the police learned his location… From his perspective, it is all the same whether a paid informant, a jilted lover, police with binoculars, a bartender, a member of a rival gang, a spy trailing his car after it left his driveway, the phone company’s cell towers, or a device pretending to be a cell tower, provided location information. A fugitive cannot be picky about how he is run to ground. So it would be inappropriate to use the exclusionary rule, even if the police should have told the judge that they planned to use a cell-site simulator to execute the location warrant.

In a lengthy dissent, 7th Circuit Chief Judge Diane Wood blasted the secrecy with which law enforcement cloaks the Stingray. She complained that “we know very little about the device, thanks mostly to the government’s refusal to divulge any information about it. Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used.”

Judge Wood wrote that “it is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like. Its capabilities go far beyond any of those, and cases such as Riley indicate that the Supreme Court might take a dim view of indiscriminate use of something that can read texts and emails, listen to conversations, and perhaps intercept other application data housed not just on the target’s phone, but also on those of countless innocent third parties.”

The importance of the issue and the 2-1 decision with a stinging dissent suggests that the odds might be better than average that the Circuit would take up the issue en banc.

United States v. Patrick, Case No. 15‐2443 (7th Cir., Nov. 23, 2016)

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READING TEA LEAVES ON TRUMP AND SENTENCE REFORM

President-elect Trump will take office in 52 days, and justice-reform groups across the political spectrum are scrambling to find a path forward.

Both chambers of the Republican-controlled Congress pushed alternate versions of the Sentencing Reform and Corrections Act of 2015, seeking reforms that would have reduced recidivism and save money. President Obama fully supported the effort.

However, the clock’s run out on the 114th Congress, and the SRCA is dead on arrival. Now, sentence reform advocates are searching for hints on Mr. Trump’s positions.

Many see the selection of Sen. Jeffrey Sessions (R-Alabama) for attorney general as a bad sign. Sessions has been one of SRCA’s staunchest opponents, arguing it “would release thousands of violent felons and endanger millions of Americans whose safety is increasingly threatened by rising crime rates.”

In 2010, Sessions co-sponsored the Fair Sentencing Act, which increased the quantity of crack cocaine needed to trigger a mandatory minimum punishment and aimed to reduce the disparate penalties for crack and powder cocaine. And Trump’s running mate, Indiana Gov. Mike Pence, said at the vice presidential debate that “we need criminal justice reform.”

At other moments, though, Sessions has struck a different tone. During hearings this year, he said “good people don’t smoke marijuana” and criticized DOJ policies that he sets the standard to prosecute drug cases too high.

Trump rarely talked about criminal-justice policies on the campaign trail. Some and some activists are hoping he will see the issue as a way to connect with the rising number of Americans whose friends and family members have served time behind bars. Justice Department data shows that the number of people incarcerated in the U.S. more than quadrupled from 1980 to 2.2 million as of 2014.

Sen. John Cornyn (R-Texas) said last week that Trump’s transition team has not specifically commented on the bill – signaling possible friction between those in Congress who support the effort and those on Trump’s team.

“Obviously the president is going to be an important partner in this effort and I think that there are elements of the legislation that they regard more favorably than others,” Cornyn told reporters. “My sense is that they don’t like the sentencing-reform stuff but the prison reform, which is successful in states like Texas, that seems to have bipartisan support. But we’re just going to have to have that conversation and find out what it would look like.”

Other sentence reformers aren’t giving up. “People say a President Trump would be disastrous for criminal justice reform, but I think that’s completely ridiculous,” said Holly Harris, executive director of the U.S. Justice Action Network.

Harris acknowledged that Trump’s selection of Sessions to head DOJ could set the movement back, but she said having him out of the Senate would at least mean he no longer could directly impede an overhaul bill. She said that others close to Trump, such as Vice President-elect Mike Pence and former House Speaker Newt Gingrich, support changes to criminal-justice laws.

Likewise, Timothy Head, executive director of the Faith & Freedom Coalition, remains optimistic about the sentence reform prospect. Head said Trump may want to use criminal-justice issues to reach out to minority communities, following the example of some Republican governors.

Head expects Trump to be less interested in relatively contentious changes like reducing prison sentences and more attracted to causes that conservatives back, such as helping former prisoners re-enter society and combatting “overcriminalization.” While many overhaul proponents on both sides of the aisle agree there are too many federal crimes on the books, Republican lawmakers want to require criminal intent for more prosecutions. Democrats resist that because they say it could let corporate criminals off the hook.

Wall Street Journal, Criminal-Justice Reform Efforts Face a New Uncertainty Under Trump (Nov. 25, 2016)

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YOUR MOTION IS PREMATURE, AND THUS DENIED

Everyone knows that 18 U.S.C. 922(g) makes it illegal for a felon to possess a firearm. What is less known is that the statute has a whole laundry list of people besides felons who cannot possess a gun or ammo. For example, subsection (3) prohibits someone “who is an unlawful user of or addicted to any controlled substance” from packing heat.

When an Iowa probation officer stopped by Kyle Turner’s place, Kyle – who was on state probation for something (we don’t know what) – admitted he had a shotgun in his bedroom. Kyle also dropped some urine that tested positive for methamphetamine.

The Feds indicted Kyle for possession of a firearm by an “unlawful user of metham-phetamine.” Kyle filed a motion to dismiss on the grounds that 922(g)(3) was unconstitutionally vague as applied to his conduct, because his indictment failed to allege that he “engaged in regular use of methamphetamine.”

The government responded that the motion to dismiss was premature, because its evidence that would answer Kyle’s claim would be presented at trial. The district court denied Kyle’s motion. After that, Kyle pled guilty while reserving his right to appeal the denial.

Last Tuesday, the 8th Circuit reversed, and sent the case back to the trial court. Federal Rule of Criminal Procedure 12(b)(1) lets parties “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.”  A pretrial motion can be decided if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the motion. The Rule says a district court must rule on such a motion before trial unless there is “good cause to defer a ruling” and deferral will not “adversely affect a party’s right to appeal.”

Here, the Circuit said, a trial on the merits was needed to decide Kyle’s pretrial motion to dismiss. Trial courts may consider evidence beyond the pleadings to make factual findings in pretrial orders, but they may not make factual findings when an issue is “inevitably bound up with evidence about the alleged offense itself.” The relevant question is not what evidence the court relied upon in its ruling, but rather what type of factual finding it made.

The 8th said that the statute’s language, “unlawful user of… any controlled substance… runs the risk of being unconstitutionally vague without a judicially-created temporal nexus between the gun possession and regular drug use.” Therefore, to rule on Kyle’s constitutional challenge, the district court had to determine whether he had engaged in regular drug use at the time he possessed the firearm. The appeals court said the “facts surrounding the commission of the alleged offense would assist with that determination, and the contested defense therefore could not be ruled upon without a trial on the merits.”

So the fact the government didn’t find it convenient to put its evidence on to oppose Kyle’s motion does not mean the motion should be denied.

United States v. Turner, Case No. 16-1142 (8th Cir. November 22, 2016)