6th Circuit Cautious on Plea Agreement Waiver in Wake of Lee – Update for Tuesday, July 18, 2017

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SUCH A DEAL

pleadeal161116Plea agreements are a way of life in the federal criminal system. About 97.5% of federal criminal convictions are obtained through guilty pleas, and all but a handful of guilty pleas result from a written plea agreement between the government and defendant.

Surprisingly, there is little uniformity in plea agreements among the 94 federal judicial districts. The U.S. Attorney’s Manual provides some guidance to federal prosecutors, but the form of the agreements varies widely from district to district.

Generally, the Manual states, the government lawyers are permitted to ask defendants, as a condition of entering into a plea agreement, to waive “appeal and… post -conviction remedies to the full extent permitted by law as a component of plea discussions and agreements.”

remorse170718It’s safe to say that the overwhelming majority of federal criminal defendants will sign and later benefit from a written plea agreement (although in many cases, the benefits of the plea agreement can be illusory, which is a discussion for another day). It’s almost as safe to say that almost all of those defendants will experience buyer’s remorse at some point, usually after they hear the prison door slam shut behind them.

That happened to Hatem Ataya, a Michigan physician who pled guilty to a Medicare fraud scheme in 2015. His plea agreement included an appellate waiver, in which he gave up any right to appeal his conviction or sentence “on any grounds.” Doc Ataya appealed anyway, and the government moved to dismiss the appeal on the basis of the waiver.

waiver170718Defendants appeal against the waiver all the time, and the government’s normal response is to seek dismissal of the appeal on the basis of the waiver. In 2016, about 18% of all criminal appeals were bounced on procedural grounds, and most of those were because of valid appeal waivers. But it does not always work this way. In a notable 3rd Circuit outlier decision, the government won the right to resentence a defendant who filed an appeal despite his waiver, under the dubious theory that he had breached the plea agreement by appealing. Given the less-than-user-friendly Justice Department, under the leadership of Jefferson Beauregard Sessions III, watch for more of these vindictive resentencings.

Doc Ataya, however, might be lucky. He claimed that his appeal waiver was not valid, because the court did not inform him of some of the consequences of his plea, including deportation to a hotter, drier place. There’s a rule for a district court to follow when accepting plea deals – F.R.Crim.P. 11 – and in this case, Dr. Ataya argued, the district court missed an important step.

Earlier this week, the 6th Circuit agreed. Holding that it was “not convinced that Ataya entered into the plea agreement as a whole knowingly and voluntarily,” the Circuit referred the case for decision on the merits to “determine whether the plea agreement and the district court adequately informed Ataya of his plea’s consequences, in particular any possibility of denaturalization…”

The 5th Amendment requires that waivers of constitutional rights – such as the right to trial or appeal – must be given knowingly and voluntarily. There was no question Dr. Ataya knowingly waived his appellate rights. “But,” the appellate panel said, “appellate waivers are parts of larger contracts, and they must stand or fall with the agreements of which they are a part… A defendant decides to waive the right to challenge his conviction in light of his understanding of the conviction’s key consequences. If he misunderstands any of those consequences, that undermines the knowingness of the appellate waiver.”

During the hearing at which Dr. Ataya’s guilty plea was taken, the district court did not inform him that the plea agreement required him to pay restitution and a special assessment and to forfeit the fraud proceeds. Rule 11(b)(1)(J)–(L) requires that the defendant be told this. “Perhaps more troublingly,” the Circuit said, “neither the plea agreement nor the district court seems to have mentioned that Ataya, who became a naturalized citizen after the alleged frauds, might face denaturalization as a result of his conviction.”

idontknow170718One might wonder at this. The defendant held advanced degrees and was an M.D. Plus, he had no fewer than three privately-retained attorneys representing him at trial. It taxes credulity to believe that he walked into the plea agreement not understanding there might be a fine, would definitely be a special assessment ($200.00, about what he’d collect for two office visits from patients), and that he could be deported. But it doesn’t matter if the defendant is represented by David Bois and Neal Katyal. He has to hear it from the court. Because he did not, the Circuit allowed, “it is thus quite possible that Ataya did not grasp some of the consequences of his plea.”

But one good technicality begets another. Sure, the district court failed to “comply with Rule 11(b)’s requirements to a T.” But Dr. Ataya’s lawyers never objected to the error. If they had, of course, the district court would have fixed the mistake right away, so maybe their reticence is understandable. But there’s a catch: without a contemporaneous objection, Dr. Ataya has to do more than show that the district court goofed. He has to show F.R.Crim.P. 52(b) “plain error” on appeal. That requires him to demonstrate “a reasonable probability that, but for the error, he would not have entered the plea.”

That should prove to be a pretty tall order, although he does have the Supreme Court’s recent decision in Lee v. United States to fall back on. Indeed, that may be the reason for the 6th Circuit’s caution (despite the fact the Ataya decision does not mention Lee).

Because that question had not been raised by either the Doc or the government, the 6th Circuit ordered the parties to brief the issue for argument before another panel of the court.

United States v. Ataya, Case No. 16-2611 (6th Circuit, July 17, 2017)

– Thomas L. Root

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2nd Circuit Says Mathis Is Nothing Special – Update for July 14, 2017

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YESTERDAY WAS A BUSY ONE IN MANHATTAN

silver170714All right, we’ll lead with what everyone is talking about: Yesterday, a three-judge panel of the 2nd Circuit – while holding its collective nose – threw out former New York State Assembly Speaker Sheldon Silver’s 2015 fraud and corruption conviction. As soon as the U.S. Attorney for the Southern District of New York could put down his coffee cup, he announced that his office would retry the case.

And why not? The Court of Appeals almost begged the prosecution to retry the case, this time with a correct set of jury instructions. “We recognize that many would view the facts adduced at Silver’s trial with distaste,” Judge José Cabranes wrote. “The question presented to us, however, is not how a jury would likely view the evidence presented by the government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty. Given the teachings of the Supreme Court in McDonnell, and the particular circumstances of this case, we simply cannot reach that conclusion.”

The Court ruled that the evidence in Silver’s high-profile trial was certainly enough to convict him of money laundering, Hobbs Act extortion and honest services fraud. But after the Supreme’s decision last summer in McDonnell v. United States, which narrowed the definition of “official acts,” a necessary element of bribery, the panel said the trial court erred by not properly instructing the jury on the charges of honest services fraud and extortion.

But we march to the tune of a different drummer, so our focus is on yesterday’s 2nd Circuit decision in Washington v. United States, one much more consequential to federal inmates.

burglary160502The Supreme Court’s decision last year in Mathis v. United States dramatically tightened the rules used in determining whether defendants’ prior state convictions fit the generic definitions of crimes used in “crime-of-violence” definitions sprinkled throughout the U.S. criminal code. The stakes are high: two defendants may have both committed three of the same types burglaries before being caught with a gun. But because the state statute under which one was convicted defined burglary to include breaking into cars as well as houses, those burglaries are not “burglaries” as defined in the Armed Career Criminal Act. That defendant gets 60 months in prison.

The other guy was convicted in a neighboring state’s statute, which defines burglaries as being committed only on structures. That is not too broad, so his burglaries qualify him for sentencing as under the Armed Career Criminal Act. He will get at least 180 months (15 years) under the ACCA, no matter how the judge might feel about it.

The ACCA is where the battle has mostly been fought, but similar “crimes-of-violence” definitions are used in the Sentencing Guidelines, in the statute on carrying a gun during a crime of violence (18 USC 924(c)) and in the general crime-of-violence definition in 18 USC 16(b), which has great consequence for immigrants subject to deportation for serious crimes.

diagram170714So Mathis, which limited when courts could look at the actual burglary conduct of the defendant and tightened how statutory terms could be defined (remember sentence diagrams in 7th grade English?), is as important to defendants as it is arcane. Of course, equally important to the defendants who have already been convicted and sentenced based on prior crimes of violence is whether the redefinition of the interpretative rules in Mathis is retroactive to their cases. Is Mathis a get-out-of-jail card?

The law substantially limits second bites of the post-conviction apple. Inmates who have filed habeas corpus motions under the statute (28 USC 2255) may not file second 2255 motions without getting prior permission from a court of appeals under 28 USC 2244. That permission is granted only where the new decision that will free them – in this case Mathis – is retroactive. If it’s retroactive, inmates have one year from the new decision’s issuance to file their second 2255.

There were some less-than-scrupulous “paralegal” firms busy earlier this year convincing inmates that they had to file for relief under Mathis by June 22, the one-year anniversary of Mathis. We complained a few months ago that there was no way Mathis could be held to be retroactive, and that filing a 2244 motion with the court of appeals was a waste of time and money.

Some guys didn’t get the message. One was Ronnie Washington, who was sentenced to 240 months’ imprisonment as a career offender under § 4B1.1 of the advisory Sentencing Guidelines. His 2244 motion to the 2nd Circuit asked permission to file a new 2255 motion on the grounds that his prior state law convictions for drug trafficking was unconstitutional in light of Mathis. Yesterday, the Court of Appeals turned him down.

A second or successive 2255 motion on a ground not previously presented is allowed only if the court of appeals certifies that the motion is based on either newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

mathis170714Ronnie argued that Mathis “established a new rule that makes” his unconstitutional. The Court disagreed, finding that Ronnie’s “view of Mathis is without merit, as its holding was not based on the Constitution and was based on a rule applied for decades,” at least since the Supreme Court’s 1990 decision in Taylor v. United States. The Court said, “In sum, the Mathis Court was interpreting ACCA, not the Constitution… And although the Mathis Court noted that its ACCA interpretation had been based in part on constitutional concerns, those concerns did not reflect a new rule, for “Taylor set out the essential rule governing ACCA cases more than a quarter century ago.”

The 2nd Circuit decision joins those of three other circuits – the 5th, 7th and 11th – in holding that whatever Mathis may be, it’s not retroactive.

Washington v. United States, Case No. 17-780 (2nd Circuit, July 13, 2017)

– Thomas L. Root

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Captain Obvious Loses One in the 8th Circuit – Update for July 13, 2017

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SWEEPING UP

Ron White was a “person of interest” to Kansas City law enforcement, a term that makes one sound better than it intends. We think more of a Taylor Swift or a Tom Brady, or even Ivanka Trump, when we hear “person of interest.” But not the KCPD. Law enforcement thought Ron was interesting because they suspected he was involved in a series of violent crimes.

dracoB170713In pursuit of their interest, officers searched Ron’s parents’ home. They found a black duffel bag in the bedroom Ron had used as a kid and still slept in from time to time. Among the swag in the bag was a stolen Romarm Draco handgun and a Cobray Street Sweeper.

The Draco is not a weapon for carefree Saturday afternoons plinking at cans. The Street Sweeper even less so. Described by firearms expert Ian McCollum as a “pretty miserable shotgun,” the Sweeper is an American knockoff of a 1980s South African design, a 12-gauge shotgun with a drum magazine capable of holding a dozen rounds. Think “shotgun revolver.”

Streetsweeper170713The Street Sweeper may be poorly made and a beast to shoot, but it has great curb appeal. Having played a supporting role in Miami Vice, several of the Robocop movies, and several video games, it’s not surprising that the gun was not seen so much at skeet shooting events as it was at drug deals gone bad. Thus it was that in 1994, the Bureau of Alcohol, Tobacco, Firearms and Explosives classified the Sweeper as a “destructive device” under 26 USC 5845(f). A “destructive device” – in this case “any type of weapon… the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes” – may not lawfully be possessed unless registered. (The Street Sweeper, being a 12-gauge shotgun, has a bore diameter of .729 inches.) The Secretary (of the Treasury, in this case), who was not much of a dove hunter, decided the Sweeper has no sporting purpose, and put it on the DD list.

McCollum170713That caused a problem for Ron, whose Street Sweeper unsurprisingly was not registered. Ron was convicted of possession of a stolen gun (the ugly little Draco) and an unregistered destructive device.

A three-judge panel at the 8th Circuit reversed the stolen-gun count, but upheld the conviction on the destructive device and Ron’s 57-month sentence. Earlier this week, on rehearing, ten 8th Circuit judges sitting en banc agreed that the stolen-gun charge was properly reversed. In addition, the Court threw out the destructive device count.

The same year the Street Sweeper became a destructive device, the Supreme Court – concerned that there were so many “look-alike” but lawful guns in circulation – held in Staples v. United States that a district court must instruct the jury that knowledge of the characteristics bringing a firearm or destructive device under the coverage of the National Firearms Act is a necessary element of the offense of possession of an unregistered firearm. In other words, if a shooting enthusiast has an AR-15 – the legal, semi-automatic version of the fully automatic M-16 – but it has been modified to fire like an M-16, the government has to prove the owner knew that.

It’s simply mens rea, the Court said, the “rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence… Congress need not expressly announce a mens rea in a criminal statute in order for the Supreme Court to predicate conviction under that statute on proof of knowledge or intent.” That’s what Staples held, except that after Staples, the 8th Circuit in United States v. Barr slapped a big asterisk on Staples, holding that where “the characteristics of the weapon itself render it ‘quasi-suspect,’ Staples does not require proof that the defendant knew of the specific characteristics which make the weapon subject to the Act,” but instead the “government need only prove that the defendant possessed the ‘quasi-suspect’ weapon and observed its characteristics.”

Obvious170713It might be called the “Captain Obvious” exception. If the destructive device is obviously a destructive device, the government does not have to prove the defendant knew it was a destructive device.

The en banc Court concluded that the Circuit’s Barr decision was inconsistent with Staples and mens rea. It complained that “Barr placed gun owners in the precarious position of facing strict criminal liability for possessing a firearm merely because a panel of judges may later classify that firearm as part of an arbitrary subcategory of weapons.”

In this case, Barr let the earlier classify the Street Sweeper as “quasi-suspect” for “reasons completely unrelated to the reason Congress chose to regulate the gun.” The gun was regulated because it had a bore of more than one-half inch and was found by a bureaucrat to not be “particularly suitable for sporting purposes.” But the three-judge panel said the Street Sweeper was quasi-suspect because it “a short-barreled twelve-gauge shotgun with a twelve-round drum feed… with the appearance of a large machine gun” and it “does not have the appearance of a traditionally lawful weapon.”

bomb170713The en banc Court concluded that “Barr’s holding as to the mens rea required for a conviction under the National Firearms Act is wholly inconsistent with Staples and is therefore overruled. By imposing strict criminal liability on owners of “quasi-suspect” guns — an undefined category that invites arbitrary application — Barr contravenes the Supreme Court’s view that Congress did not intend to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons.”

United States v. White, Case No. 15-2027 (8th Cir., July 11, 2017) (en banc)

– Thomas L. Root

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Sentencing Commission Releases Sobering Mandatory Minimum Report – Update for July 12, 2017

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READ ‘EM AND WEEP

mandatory170612Everyone appreciates on a visceral level how badly Congressional meddling in sentencing – in the form of statutorily-imposed mandatory minimum sentences – has loaded the BOP with inmates serving harsh sentences and skewed any attempt by the United States Sentencing Commission to impose a rational system. Thanks to a USSC report issued yesterday, everyone’s understanding of mandatory minimum sentence havoc can be intellectual as well.

The USSC study, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017 Overview), examines the application of mandatory minimum sentences and the impact of those penalties on the federal prison population.”

The 89-page report is a bonanza of data on mandatory minimums. Perhaps most significant to us is the fact that over half (55.7%) of federal inmates at the end of last fiscal year were serving time for offenses carrying mandatory minimum sentences. Recall that one of our criticisms of Prisology’s sentencing table reform was that so many inmates – perhaps 150,000 – would be eligible for a sentence reduction were the table made retroactive that the courts would be overwhelmed. This likely flood of sentence reduction motions would probably cause the Commission to refuse retroactivity.

The Report’s number suggests that even if the table were amended and made to apply retroactively, only about 83,000 inmates would be eligible for a sentence reduction under 18 USC 3582(c)(2). That number is still high, but much more manageable than our original estimate. While we still have substantial doubts that the Prisology proposal will go anywhere, we acknowledge that the sheer volume of eligible inmates is less than half of what we anticipated, tipping the probability scale more in Prisology’s favor.

keynes170712Other interesting facts gleaned from the Report:

•   The average sentence length for inmates serving mandatory minimum sentences convicted was 110 months, nearly four times the 28-month average sentence for inmates without a mandatory minimum.

•   Over one-third (38.7%) of inmates convicted of a mandatory minimum offense received relief from the mandatory minimum at sentencing, a decrease from 46.7% six years before.

mandatorywhere170712•   Fewer that 10% of defendants in Vermont, West Virginia, New Mexico and Arizona were convicted of mandatory minimum offenses. But in middle Illinois, southern Indiana, western Kentucky, eastern Tennessee, and northern and middle Florida, between 40% and 50% of defendants were hit with mandatory minimums.

• While drug and gun mandatory minimum sentence convictions have stayed level or dropped since 2002, child porn and sexual offense mandatory minimums have skyrocketed from fewer than 5% of all defendants charged with those offenses to 60%.

mandatorywhenJudge William H. Pryor, Jr., Acting Chair of the Commission, said in a press release that “when Congress created the Commission, Congress empowered it to serve ‘as a clearinghouse and information center’ about federal sentencing and to assist Congress, the federal courts, and federal departments in the development of sound sentencing policies… The Commission has published this report to fulfill that Congressional mandate.”

In a 2011 report, the Commission urged Congress to moderate drug, firearm and sex/porn mandatory minimums. Since that time, Congress has proposed adding several new mandatory minimums, but thus far has ameliorated nothing.

U.S. Sentencing Commission, An Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (July 11, 2017)

– Thomas L. Root

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Rethinking Prisology’s “Hail Mary” – Update for July 11, 2017

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“RE-PRISE” OLOGY

Last week, we reviewed (and roundly criticized) the nonprofit Prisology for its current effort to convince the United States Sentencing Commission to adopt a new, kinder and gentler sentencing table (Chapter 5A of the Guidelines).

trump170717We questioned the efficacy of an online letter-signing campaign, arguing that – unlike the 2014 drug quantity 2-level reduction – there is no consensus for changing the Table right now, and indeed a Justice Department led by Jefferson Beauregard Sessions III, would likely be quite hostile to the effort. We pointed out that even if such a change were to be effected, the likelihood of a new Sentencing Table being made retroactive was less likely than Trump giving up Twitter. We feared that the effort would provide false hope to inmates, and wondered whether Prisology might be pumping up its contacts list by soliciting the names, addresses, emails and phone numbers of people signing its online petition.

Yesterday, we got a call from Brandon Sample, president of Prisology and a well-known federal post-conviction attorney. Our conversation was extended and cordial. While Brandon did not convince us that Prisology’s effort was not just tilting at windmills, and while we did not convince him that our Eeyore-like pessimism was justified, we thought much of what he said was worth recounting. Thus, today’s Reprise on Prisology.

eeyorelisa170711We suggested last week that Prisology was taking an outsized piece of credit for the Sentencing Commission’s 2014 2-level reduction, when in fact it was more likely that the much larger Families Against Mandatory Minimums – which also claimed a leadership role in convincing the Commission to drop the drug levels – had pulled the laboring oar. Brandon disagreed, reporting to us that Prisology came early to that party, delivering “tens of thousands” letters in support of the reduction to the Commission. He said that FAMM’s 2014 efforts on the 2-level reduction were surprisingly minimal, and its after-the-fact claim that it had been out front on it was exaggerated.

We have no reason to doubt Brandon’s explanation, and several reasons to accept it.  We heard from one inmate reader who recalled the 2014 campaign vividly:

As a person who was around and ‘in the trenches’ behind bars when the drugs minus two amendment cycle was happening I can state that FAMM’s letter writing campaign was only a 3rd of what Prisology’s was.  FAMM had people mailing letters directly to the sentencing commission, and if memory serves they provided a template.  Prisology, on the other hand, had people mailing a template letter (similar to what they have now) directly to Prisology so that they could deliver them in a lump sum (more impactful) to the sentencing commission.  They ended up delivering right around 50,000 letters. Double what ever FAMM could have.

sizzle170711What both Brandon and our reader described reminds us of a phenomenon we have observed several times over FAMM’s 27-year history. FAMM started at a kitchen table: now, it is big. Some 70,000-supporters big. FAMM has a nice budget, paid staff, and a PR machine. This is fine, exactly what a nonprofit Washington-based advocacy group should have.  With size can come institutional bias, tunnel vision on issues, and all too often an instinct for self-preservation that makes the organization too quick to adopt a not-invented-here philosophy and a disdain for any other group working in the same arena. People are like that: organizations are like that, too.  At times, we have thought FAMM cared more about the sizzle than it did the steak.

We also suggested that Prisology had seemed to be dormant since 2014. Brandon admitted that the group was not grinding out press releases during that time, so that a review of the website might make it seem so. Part of that problem results from Prisology lacking the well-tuned and professional media shop that larger organizations (such as FAMM) keep humming with self-adulatory releases.

However, Brandon argues, press releases or not, Prisology remained active after 2014, spearheading among other things Freedom of Information Act litigation against the Bureau of Prisons (something of which we were aware) and maintaining a focus on the Sentencing Commission and congressional initiatives during the period. He makes a good point. Maybe our reviewing Prisology’s website for news releases was not the best metric. Judging an organization’s activity by counting the number of press releases may be sort of like judging the quality of a college football program by the quality of the band. You would be right some of the time – USC, Ohio State, Michigan, Alabama and Auburn all have large, lavish marching bands. But the best bands in the nation also include Tennessee, Ohio University (the Bobcats) and perennial Big 10 doormat Purdue. Like the statisticians say, there just ain’t any correlation.

purdue170711We also talked to Brandon about the D.C. Circuit debacle on the Prisology FOIA suit last spring. We said at the time we could not figure out how the organization could have made such a rookie mistake on standing. Brandon explained Prisology’s strategy, based on the principle that if an agency is by law supposed to make something available in the public reading room, you shouldn’t have to ask for it as a condition of filing suit. It’s not what we would have suggested, Article III standing seeming to us to be a somewhat different issue than whether FOIA should make you ask for something that ought to be available without asking. But for the same reason Strickland v. Washington holds that lawyers’ strategic choices are largely immune from ineffective assistance of counsel claims, we defer to Prisology’s strategic choice.

Brandon says that Prisology is not done, and it intends to make another run at compelling the BOP to honor its FOIA obligations. It always bothered us that Wile E. Coyote would only try something once, fail at it, and then – instead of tweaking the technique – move on to something completely different. Fortunately, Prisology is no Wile E. Coyote. We think the FOIA issue Prisology raised has merit, and needs to be heard.

That leaves our concern that Prisology may be using the online petition gambit to build an email and phone list for fundraising. Brandon says no. Despite the fact Prisology has collected untold riches from donors in the past – probably a couple hundred bucks total, Brandon says – he says that none of the information gathered for the Sentencing Commission letters will be used for any purposes other than to file with the Commission. Comparing Prisology’s modest “donate” buttons to FAMM’s neon-light-at-midnight “DONATE TO FAMM” button, we think it’s pretty clear that emptying donors’ wallets is not a primary mission at Prisology.

hailmary170613We still have serious doubts about the likelihood that Prisology’s “Hail Mary” pass on the Sentencing Table will work, and – if it does – that it will ever be retroactive. And we would prefer that the sentencing reform community turn a laser-like focus on an issue likely to be adopted and made retroactive. But while we still caution that people should not be getting hopes up that the Prisology effort will soon deliver lower sentences to just about everyone, we nevertheless salute its effort.

More important, based on Prisology’s promise that the information it collects will not be abused, we think that having family and friends complete the online letter does not harm, and may advance,  sentence reform efforts.

– Thomas L. Root

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Judge Has Enough of Expedient Pleas – Update for July 10, 2017

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DISTRICT JUDGE REJECTS PLEA DEAL, SAYS DEFENDANT SHOULD GO TO TRIAL

Charles Walker, a drug trafficking defendant, cut a plea deal to cop to a single count of distributing heroin, getting five other counts – including one for peddling fentanyl – dismissed.

But when the plea agreement was presented to U.S. District Judge Joseph Goodwin, he did something neither the prosecutor nor defense counsel planned on. He turned them down flat.

In a 28-page order, the judge said one of the chief reasons Chuck should face the “bright light of the jury trial” is because West Virginia is “ground zero” for the opioid epidemic that has been ravaging the nation. “A court should consider the cultural context surrounding the subject’s criminal conduct,” the Judge wrote. “Here, that cultural context is a rural state deeply wounded by and suffering from a plague of heroin and opioid addiction.”

The Judge said a jury trial “reveals the dark details of drug distribution, an abuse to the community, in a way that a plea-bargained guilty plea cannot. A jury trial tells a story… The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.” The decision found that the plea deal offered Walker has little to do with justice. “The principal motivation appears to be convenience.”

Chuck’s attorney told the Washington Post, “This is the first time anything like this has happened in 25 years of practicing law.”

AUSAnumber170710An interesting footnote to the decision is Judge Goodwin’s skewering of the tired rationale that plea bargains are necessary to relieve the overburdened court and prosecutorial systems, which would grind to a halt were it not for deals like the one the government sought to give Charles Walker:

For at least the past forty-six years, the primary justification for plea bargaining has been that the constitutional process of requiring trial by jury in every case overburdens the courts and overworks the prosecutors… The courts are no longer overburdened. Federal prosecutors are no longer overworked. To illustrate, despite the decline in criminal trials, the number of federal prosecutors has… increased more than sevenfold—from 809 in 1970 to 6,075 in 2010. In FY 2016, the number of federal prosecutors had grown to 6,293. 

Given the inverse relationship between trials and federal prosecutors, there has been a steady decrease in the average number of criminal trials handled per federal prosecutor. In FY 1973, each federal prosecutor handled over eight criminal trials on average. By FY 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.

Like federal prosecutors, the number of authorized Article III district court judgeships rose from 394 in 1970 to 663 in 2015.103 Accordingly, the number of criminal trials handled per district judgeship dropped from over twenty-one per year in 1973 to fewer than three per year in 2016. Thus, like federal prosecutors, district court judges are not overburdened by trials.

Because the most common justifications for plea bargaining no longer have any substantial heft, the counterweight of the people’s general interest in observing and participating in their government requires close consideration of a proffered plea bargain in every case.

United States v. Walker, Case No. 2:17-cr-0010 (S.D.W.Va., June 26, 2017)

– Thomas L. Root

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The Immunity of Charlatans – Update for July 7, 2017

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AIN’T NO JUSTICE…

In the annals of whack-job prosecution “experts,” Steven Hayne and Michael West are royalty. The pair, who have dominated Mississippi’s death investigation system for the better part of 20 years, have put dozens of people in prison for life or on death row with testimony that falls well outside the constraints of science.

biteme170710Hayne once claimed that a murder victim’s bullet wounds were “consistent with” a theory that two people were holding the gun when it was fired. West has claimed to be able to trace bruises on a victim’s abdomen to the specific shoe that inflicted the injuries, to match fingernail scrapes to the specific fingernails that made them, and in one case, claimed that the knife wounds in a murder victim could only have been caused by one specific knife and that marks on the defendant’s hands that could only have been caused by gripping the handle of that same knife.

Scott Greenfield succinctly explained bite-mark forensics in his Simple Justice blog: “Just to be absolutely clear, bite marks identification evidence is complete, total junk science. It doesn’t work, which is how Hayne and West became the leading “experts” in bite mark evidence.”

Among the dozens of unfortunates locked up by the fake science peddled by Hayne and West were Kennedy Brewer and Levon Brooks. After the two were exonerated of murders that had gotten one of them sentenced to life and the other put on death row – based on nonsensical bite mark testimony from Hayne and West – they sued the “experts” under 42 USC § 1983. Last week, the 5th Circuit ruled that because Hayne and West are protected by qualified immunity for any case in which they testified, they’re only liable to a lawsuit if the plaintiff can show that they acted recklessly. Mere negligence — even gross negligence — is not enough.

The Circuit held

Plaintiffs have made a compelling showing that Defendants were negligent in their forensic analysis, but negligence alone will not defeat qualified immunity. Viewed in the most favorable light, Plaintiffs’ evidence is not suggestive of an intent to fabricate. The disagreement voiced by Plaintiffs’ experts is evidence that Defendants were mistaken in their conclusions or methodologies, but no more. Likewise, the evidence of the “extraordinary frequency” with which Defendants found bite mark evidence certainly undermines the reliability of the forensic odontology techniques they employed — and perhaps the field in general — but does not lead to an inference of intentional fabrication.

charlatan170710It is significant that Hayne and West aggressively marketed their abilities to find forensic evidence that would convict, and were thus the darlings of prosecutors all over Mississippi. In fact, Hayne could almost claim as his trademark the phrase “indeed, and without a doubt.” Juries loved it: no wishy-washy equivocating from this “expert.” Hayne’s and West’s findings were clear, their opinions stark and powerful.

Unfortunately for the defendants against whom they testified, Hayne’s and West’s findings were dubious and their opinions wrong. But that was not enough for the 5th Circuit. “The allegation of a previously false bite mark by Dr. West — whether created intentionally or accidentally — gives pause,” the Court said. “Yet the inference Plaintiffs ask us to draw from that evidence is one generally not permitted under the federal rules. The same is true of the evidence regarding Defendants’ professional histories—propensity evidence will not sustain an inference that the Defendants intentionally fabricated evidence here.”

In other words, just because these “experts” cheated in prior cases before does not mean you can use that to suggest to the jury that they’re cheating now. That seems to be a twist on F.R.Ev. 404 that collides with due process. But then, the whole notion of a pair of medical mountebanks like these two stealing the lives of innocent defendants to line their pockets with expert fees pretty much shocks the conscience.

Brewer v. Hayne, Case No. 16-60116 (5th Cir., June 27, 2017)

– Thomas L. Root

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1st Circuit Holds Recklessness Not Enough for ACCA Crime of Violence – Update for July 6, 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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Jackass170707Remember back in 2000 when MTV decided to break Masterpiece Theatre’s hammerlock on classy television programming? The result was Jackass, an ill-conceived piece of televised mayhem in which the show’s participants performed all manner of risky and stupid stunts on themselves and each other. Their viewers  – being not just kids but dumb kids – often imitated what they saw on the show.

Much of what the ensemble cast did to each other – such as branding one participant on his bare kiester with a hot iron – easily blew past  negligence and gross negligence standards on the way to sheer recklessness. And that brings us to today’s case.

George Bennett was convicted of being a felon in possession of as gun under 18 USC 922(g), among other crimes. Because the sentencing court concluded that George had three prior “crimes of violence” within the meaning of the Armed Career Criminal Act, he was sentenced under 18 USC 924(e) to 25 years. Without the ACCA specification, the most he could have gotten for the 922(g) was 10 years.

The legal landscape began shifting with the Supreme Court’s decision in Johnson v. United States that a portion of the ACCA – the “residual clause,” which pretty much defined a violent crime as one in which something bad could have happened, intended or not – was unconstitutionally vague. After Johnson, George filed a motion under 28 USC 2255 for relief from the ACCA sentence, arguing that his priors, all of which were aggravated assault under Maine law, were not “crimes of violence” within the meaning of the ACCA.

An ACCA “crime of violence” is an offense that (1) was burglary, arson, extortion or use of explosives (called the “Enumerated Clause”); or (2) has as an element the use, attempted use, or threatened use of physical force against the person of another (called the “Force Clause”).

George argued in his 2255 motion that Maine’s aggravated assault statute went beyond the Force Clause, in that one could commit aggravated assault through reckless conduct but without intent. The district court agreed with George, but the government appealed.

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Cast member gets branded.

On Wednesday, the 1st Circuit Court of Appeals upheld the district court, not necessarily agreeing with George that recklessness was not enough to come within the Force Clause, but not being sure that it did not. In a 54-page exposition of the state of the law on recklessness and the Force Clause, the Circuit concluded that “the text and purpose of ACCA leave us with a ‘grievous ambiguity,’ as to whether ACCA‘s definition of a “violent felony” encompasses aggravated assault in Maine, insofar as that offense may be committed with a mens rea of mere recklessness, as opposed to purpose or knowledge, we… must apply the rule of lenity… and, in consequence, we conclude that Bennett’s two prior Maine convictions for aggravated assault do not so qualify…”

Maine defines aggravated assault to include “intentionally, knowingly or recklessly causing” bodily injury to another. Maine defines the mens rea of recklessness as acting when a person “consciously disregards a risk.”

violence161122The problem, the Court said, is that “Congress chose in ACCA to denominate ‘the use of force against another’ as a single, undifferentiated element.” The question thus becomes whether “the relevant volitional act that an offense must have as an element for ACCA purposes is not just the ‘use . . . of physical force,’ but the ‘use . . . of physical force against the person of another.” The injury caused to another by the volitional action in a reckless assault, the Court said, is by definition neither the perpetrator’s object nor a result known to the perpetrator to be practically certain to occur. For that reason, a voluntary reckless act – the Court used the example of throwing a plate against a wall in anger, resulting the splinters flying off and injuring one’s spouse. – may endanger another without deliberately endangering another.

The Court could as easily have used the Jackass “branding iron” skit.

The Court traced all of the arguments for and against George’s position, but concluded that “the canon against surplusage does at least suggest that the follow-on ‘against’ phrase in ACCA must be conveying something that the phrase ‘use . . . of physical force’ does not… Nevertheless, we can hardly be sure.”

The Rule of Lenity holds that a court should interpret any ambiguity in a criminal statute in the defendant’s favor. The Circuit said, “We are considering here a sentencing enhancement of great consequence. We should have confidence, therefore, that we are doing Congress’s will in applying this enhancement here.”

The Bennett decision is long but consequential, treating in detail a substantial question on interpreting “use of physical force against the person of another.” The issue may well be the next battleground in ACCA and “crime of violence” litigation.

Bennett v. United States, Case No. 16-2039 (1st Cir., July 5, 2017)

– Thomas L. Root

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Just Because Your Friends Do It Doesn’t Mean It Isn’t Hopemongering – Update for July 5, 2017

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BRINGING FORTH A MOUSE

mouse170706From time to time, we rail about hopemongerers, people who traffic on the desperation of federal inmates to make a buck. The people who do this spectrum from those proceeding out of naïve self interest, like the Colorado prison reform group that is really just the families of the co-conspirators in a white-collar fraud, to the genuinely corrupt, like the bunch selling a sentence reduction scam.

(A happy note: Alvin Warrick, aka “Pete Candlewood,” last week got slammed with a 235-month sentence in the Southern District of Florida, while sidekick Colitha Bush got 96 months – we’ll be sure to offer them the Rule 35 Deal of the Century).

But sometimes someone with the most altruistic of motives inadvertently stirs the pot of hope, sending the system into a tizzy for no good reason. And that brings us to our friends at Prisology.org.

Prisology is an on-again off-again prison reform group headed by Brandon Samples, a former federal inmate who is now a practicing attorney. Brandon’s a sharp guy, someone who has been in both seats at the defendant’s table, as a defendant facing a harsh sentence and as counsel working to get his client the best outcome possible.

prisologyL170706Prisology, formed in 2013, became active in about 2014, organizing a letter-writing campaign to the U.S. Sentencing Commission when Amendment 782 – retroactivity of the two-level reduction in drug base offense levels contained in USSG Sec. 2D1.1(c) – was being considered. The organization’s website touts its involvement in the 2014 efforts, claiming that its “monumental effort” in submitting tens of thousands of letters to the Sentencing Commission in support of retroactive application of the 2-level drug reduction “helped prompt change to harsh drug guidelines.” Indeed, in a press release issued in March 2015, Prisology said, “Key to the Sentencing Commission’s unanimous approval of Amendment 782 was its receipt of over 75,000 comments favoring the reform, mostly prompted by an intensive email, letter writing and social media campaign organized by Prisology. This is the first major victory for the barely year-old nonprofit organization dedicated to criminal justice system reform.”

Really? This would certainly be news to Families Against Mandatory Minimums, the 25-year old big gorilla in criminal justice reform. FAMM took credit for generating most of the 65,000 plus letters the Sentencing Commission received, a claim that – given FAMM’s prominence in sentencing reform – is much easier to swallow that Prisology’s assertion that it organized the effort.

rooster170706In all fairness, even if one credits Prisology’s rather far-fetched contention that it ramrodded the 2014 drug reduction retroactivity decision, the organization is pretty much the rooster taking credit for the sun rising. After all, in 2007, the Sentencing Commission reduced the offense levels for drug quantities, and made those changes retroactive in Amendment 706. In 2011, the Sentencing Commission again made reduced crack cocaine offense levels retroactive in Amendments 750 and 759. After those retroactive reductions, the 2014 decision was hardly a seismic event.

Plus, it’s not like the retroactivity decision had any natural predators. The Obama Administration supported it. There was no effort in Congress to thwart it. The Sentencing Commission’s vote on retroactivity was unanimous. And FAMM, a considerably larger advocacy group, was generally credited at the time with generating a vast volume of mail in support of retroactivity.

After 2014, Prisology seemed to fall dormant. It posted two press releases in early 2015, one of which was its self-adulation for spearheading the 2014 retroactivity decision. There was one project, Prisology’s Freedom of Information Act lawsuit against the Federal Bureau of Prisons, in which the nonprofit had its hat handed to it by the D.C. Circuit earlier this year. But otherwise… nothing.

prisology170706Until now. A few weeks ago, we heard from a number of inmate readers asking us what was about to happen in the sentence reform world. It seems they had received emails from well-known federal post-conviction attorney Jeremy Gordon – a Prisology board member who was at the helm of the FOIA suit when it foundered on the D.C. Circuit’s shoals – who told them something big was in the works: One wrote

Do you know who Jeremy Gordon is? He’s a federal lawyer that sends out newsletters every week. Any way he said to tune in next week because there’s going to be a big sentencing reform push bigger than the drugs minus 2 and has the potential to affect everyone in federal prison… have you heard anything?

Yes, we have now heard something. After all of the hoopla, Jeremy, Brandon and Prisology last week brought forth a… mouse.

It seems that Prisology has drafted a new sentencing table (Chapter 5A of the Guidelines), which proposes substantially lower sentencing ranges for each step in the chart than those in the current table. It wants to generate 50,000 letters to the Sentencing Commission in an effort to browbeat the agency into adopting the proposal. The organization includes a form on its website that you can complete and submit online, complete (of course) with your name, address, email and phone number.

OK, so what could possibly be wrong with this? To be sure, the Guidelines would benefit from a more rational sentencing range chart. And, as one inmate complained to us, at least this constitutes “doing something” toward sentence reform. Something’s always better than nothing, right?

petition170706We have two – maybe two-and-a-half – complaints with Prisology’s approach. First, the Sentencing Commission’s statutory mandate nowhere mentions vox populi. The Commission is a judicial agency, not a representative democracy, and flooding it with 50,000 online forms, all of which are different names attached to the same message written by Prisology, is not going to sway any bureaucrat. Online petitions do not get read. If the sentencing tables should be rewritten, then a compelling case should be made, one that addresses the sentencing factors of 18 USC 3553(a) and that statutory goals of the Commission. After all, 50,000 online signatures in a country where more than half of Americans believe aliens have visited earth does not really establish much.

Our second complaint is more significant. By trumpeting this online petition so prominently, and billing it to inmates as “bigger than the drugs minus 2,” as our correspondent put it, Prisology has committed the cardinal sin of hopemongering. Let’s say for a moment that the Sentencing Commission really did adopt the new sentencing table. Nothing about that adoption makes the change retroactive. Rather, as with all of the drug reductions, the Commission would have to hold a second proceeding to determine retroactivity.

And there’s the rub. In considering retroactivity, the Commission considers, among other factors, (1) the purpose of the amendment, (2) the magnitude of the change in the guideline range made by the amendment, and (3) the difficulty of applying the amendment retroactively. See USSG Sec. 1B1.10.  In 2010, when the Commission abolished the extra criminal history point assigned for “recency,” that is, when the new crime occurred within two years of getting off parole or supervised release for a prior crime, the Justice Department and the Judicial Conference strongly opposed retroactivity for the “recency” amendment – which would have affected maybe 7,997 prisoners – because of the disruption such a change would have caused the court system. Bowing to those views, the Sentencing Commission turned down the retroactivity proposal.

falsehope170206How likely would the Sentencing Commission be to approve retroactivity for over 150,000 prisoners, so that each could file a petition with his or her judge seeking resentencing at a lower sentencing range?

Finally, our complaint No. 2½: We cannot help sensing that maybe Prisology’s primary purpose in the online petition is to capture data. As Heather Horn wrote in The Atlantic:

It’s the great lie of online organizing: that your voice to Congress or your voice to whomever can make a difference. It can, it should, but not through them. Nearly every organization in Washington is focused on one thing–inventing new and interesting ways to get your email address. And they want your email address so that they can ask you for money.

You don’t need a physical address, phone number and email address to sign an online petition. Congress alone gets over a billion emails annually. No one has time to read them, let alone record the user information. The organization, however, does, and it gains a valuable email, phone and address database from which to solicit funds.

We are left with the disquieting feeling that Prisology may be as interested in bulking up its email list as it is in selling the Sentencing Commission its new Sentencing Table.

Is the Prisology online petition push a scam? We have no opinion on that, but it has clearly raised inmate hopes without foundation and has little chance of having any impact.

The Atlantic, Your Online Petition Is Useless (Aug. 12, 2010)

– Thomas L. Root

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What Can We Read Into an Amishman’s Sentencing – Update for July 3, 2017

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AMISHMAN GETS NAILED… IS IT BAD NEWS FOR INMATES?

amishmed170703Last Friday’s issue of the political blog The Kentucky Free Press had the best take on it: “Sam Girod was sentenced to six years in federal prison for making herbal salve without the king’s permission, plus $1,300 in what are essentially court costs, plus over $14,000 in restitution to his victims. He will also have three years of supervised release, is barred from owning firearms, and is barred from making any product regulated by the FDA.”

Sam, a member of the Old Order Amish faith, was convicted in March on 13 charges, including threatening a person in an attempt to stop him from providing information to a grand jury.

Eastern District of Kentucky District Judge Danny Reeves repeatedly asked Sam if he wanted to make a statement at sentencing, but Sam stubbornly refused, denying that the Court had jurisdiction over him.

More than 27,000 people have signed an online petition seeking to have Sam released. One non-Amish supporter, a former deputy sheriff, said, “This is a national disgrace and outrage… He is being punished for being stubborn.”

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Being a stubborn defendant is seldom a good thing… but a judge should not let it drive the sentence.

Sam operated a business that made products to be used for skin disorders, sinus infections and cancer. One product called TO-MOR-GONE contained an extract of bloodroot that the FDA said had a corrosive effect on skin. Sam argued that his products weren’t subject to FDA oversight because they were herbal remedies, not drugs, and requiring FDA approval of his products infringed on his religious freedom. The Old Order Amish seek to insulate themselves from the modern world, including modern pharmaceuticals.

Sam’s supporters say his case is an example of overreach by the federal government. “I don’t need the FDA to protect me from an Amish farmer,” read a sign held by T.J. Roberts, a college student.

Unsurprisingly, Judge Reeves had his own version of the truth, saying, “it’s not about salve. It’s about refusing to follow the law. Misbranding. Interstate commerce. Jury tampering…There have been some wild claims during the case.”

Ohio State University law professor Doug Berman said on his blog

“I always have a negative reaction to any use of prison time in response to what seem like non-violent regulatory offenses by a person who would appear to present no genuine threat to public safety.  And this case especially caught my eye not only because a lot of federal prison time was imposed, but also because… the applicable federal guideline range here was 63-78 months.  In other words, the sentencing judge here though the defendant needed and deserved a sentence significantly above the bottom of the applicable guideline range in this case.”

Knowsomething170703So why should anyone care about a stubborn Amishman? Maybe it’s just this: The judge who decided to hammer an Amish farmer, Judge Reeves, happens to be Trump’s newest appointment to the U.S. Sentencing Commission. Right now, he’s one vote on a four-member commission (three vacancies have yet to be filled).

Judge Reeves’ philosophy on sentencing is not yet clear to us, but we are uncomfortable with what we saw here.

The Kentucky Free Press, Report from the Courtroom: Amish farmer Samuel Girod’s Sentencing (June 30, 2017)

Sentencing Law and Policy, Amish Farmer sentenced to 6 years in federal prison for regulatory offenses and obstruction (June 30, 2017)

– Thomas L. Root

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