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SANDBAGGED?

Pete Apicelli was being tried for running a marijuana grow operation in Campton, New Hampshire. He had been indicted after a town employee reported finding pot growing in a field, and the police set up a motion camera to catch the gardener responsible for it.

At trial, Pete complained that his Speedy Trial Act rights were violated, because more than 70 days elapsed between his indictment and trial. To a layman, this would seem to make sense, because his trial didn’t occur until something like a year and half after he was charged by the grand jury. But the name of the law codified at 18 U.S.C. 3161 – the Speedy Trial Act – is one rich in irony.

Officially, the STA requires that a defendant be tried within 70 days of the later of the indictment or initial appearance. If he or she is not, the penalty provisions of the STA mandate that “the information or indictment shall be dismissed on motion of the defendant.” But the 70 days are only “nonexcludable” days, which a wag once observed is any day of the week ending in “y.” At times, this does not seem to far from the truth.

In calculating the 70-day period, a number of delays are excluded by the statute, including delays caused by continuances when the district court judge determines that “the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”

In Pete’s case, everyone agreed that 46 nonexcludable days passed between his initial appearance and the date on which he first filed a motion to continue the trial date. But then, Pete filed some motions, which normally begin “excludable time” under the STA.  

Pete and the government disagreed on whether the STA clock continued to stand still during two periods in which the district court granted ends-of-justice continuances at Pete’s request. The district court said both delays served the ends of justice, and didn’t count them against the STA calendar. If they had counted, Pete’s STA rights would have been violated.

Normally, you’d think that filing something to stop the clock and then complaining that you were prejudiced because the STA clock stopped seems like shooting your parents and then complaining you deserve mercy for being an orphan.  But Pete’s argument was a bit more nuanced than that. He argued the time his motions were pending should not be excluded from the STA, because the government had denied him the automatic discovery he was entitled to, and he had to file the motions in order to get it. Previously, the 1st Circuit had observed that “a defendant denied automatic discovery . . . would be placed snugly between a rock and a hard place: he could either forgo discovery to which he was entitled or he could file a motion to obtain it, thus stopping the speedy trial clock and easing the pressure on the government to bring him to trial.”

But last week, the 1st Circuit turned Pete down, refusing to hold that the government had sandbagged him. The appellate panel held that Pete did not allege that the government acted intentionally or delayed its discovery production to gain an unfair advantage. “Rather, he simply lists evidence he believes the Government should have disclosed at an earlier date and asks us to infer bad faith or government inattention from the delays themselves.” The Court held that Pete “neither explains why this evidence should have been part of the Government’s automatic discovery obligations nor does he appeal the district court’s finding that the Government was in compliance. We have long held that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. Without any reason to doubt the district court’s findings that the Government had complied with its discovery obligations, we cannot find an STA violation from the delays themselves.”

What is interesting is what the Court did not say. It did not say that the government could stop the STA clock by forcing the defendant to move for the release of evidence that should have been automatically disclosed. It did not say that a defendant who was compelled to seek court assistance to obtain needed evidence had to choose between STA rights and trial preparation. In fact, the court’s holding that Pete failed to show a government discovery violation seemed to suggest that if he had been able to do so, his argument that he could move for court assistance without stopping the STA clock would have had merit.

United States v. Apicelli, Case No. 15-2400 (1st Circuit, Oct. 7, 2016)

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OBAMA’S CLEMENCY INITIATIVE CHANGES AS HE ENTERS THE HOME STRETCH

When President Obama announced his clemency initiative in 2014, the plan was simple: to reduce drug sentences of those convicted under harsh Guidelines and mandatory minimum sentences, especially for crack cocaine crimes. Back then, his commutations ordered inmates released promptly, giving the BOP at most a few months to arrange post-release supervision and the like.

Obama’s commutations last week suggest his policy has morphed into clemency for inmates convicted of more serious drug crimes, employing something called “term” commutations, as opposed to the more common “time served” commutations. USA Today explained last week that “term” commutations “represent a remarkable departure from recent past practice.”

USA Today’s study of 673 commutations through August showed a marked change in Obama’s strategy on clemency. Before August, almost all of the inmates receiving commutations were released within four months. But in the August commutations, 39% came with a year or more left to serve on the sentence. Our own study of last week’s clemency list shows that number has increased to 43%. In fact, only 21% of last week’s commutations came with the earliest release date – February 3, 2017. What’s more, a full third of the grants are conditioned on completion of residential drug treatment prior to release.

The ever-increasing number of delayed-release commutations granted by Obama suggest a continuation of the trend toward term resentencing, a novel use of the commutation power.

The August commutation grants led some to believe Obama was starting to grant clemency to more violent offenders. Before August, only 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy in August, it was 22%. But in the commutations granted last week, only 15% involved a firearm, and those were all mere possession cases, with none appearing to involve active use of a gun. Likewise, none of last week’s commutations involved offenses with violence or threats of violence.

This does not mean that Obama won’t continue to commute more serious and large-scale drug trafficking cases (such as continuing criminal enterprises). It does, however, suggest that anyone with a violent drug offense need not apply.

Of course, contrary to the White House’s curious statement that “most” of the commutations were for a drug offense, every one of the 102 commutation grants was to an inmate whose offenses included drug trafficking. The commutation initiative has encouraged federal inmates with all manner of offenses to apply for commutation, but Obama’s record to date suggests that no inmate with a conviction other than drug-related is likely to get any traction with this White House.

We also found it noteworthy that 39% of the inmates getting clemency last week were sentenced in the past 10 years, with one being sentenced as recently as 2013. For some time, DOJ suggested that no one was getting clemency who had not been down 10 years, but that seems to be changing as the Obama Administration works through the clemency petition backlog.

And a backlog certainly does remain. Although it’s unclear how large it is, the number is in the thousands. Still, Neil Eggleston, White House counsel, said last Thursday, “”I’ve told my office that anything that gets to us will get processed. We’re not going to have a failure of resources here. I’m pretty confident that we’ll get to all of those.”

Obama hoped to make criminal justice reform the primary legacy of his final year in office. A bipartisan group of senators and representatives introduced the Sentencing Reform and Corrections Act of 2015, which would have reduced mandatory minimum sentences for some drug crimes and made the Fair Sentencing Act of 2010 retroactive. Up to 5,800 crack cocaine offenders sentenced before August 3, 2010 could have filed for lower sentences in line with the reform to the 100-to-one disparity between crack and powder cocaine.

But the wheels have fallen off that legislative bus, leaving Obama with clemency as the only means at his disposal to address disparate sentences. Last year, his Administration optimistically predicted it could grant up to 10,000 commutations, reduced later to 2,000. With only 102 days left in his Administration, Obama is only 36% to his goal.

Eggleston told CNN that Obama would continue to personally review clemency requests up until the final days of his administration.

“It’s not uncommon for him to call me in and have various ones that he wants to talk through. He focuses individually on each one of these, knows a fair amount of information on each of them,” Eggleston said. “He’s essentially looking at the various pieces, and he’s testing the likelihood of success on the outside. The way he really thinks about this is giving people second chances.”

USA TODAY, Obama commutes record total 774 sentences, October 6, 2016

DOJ, President Obama Grants Commutations (October 6, 2016)

CNN, Obama reducing 102 inmates’ sentences (October 7, 2016)

Death and Taxes Magazine, Obama Commuting Record Federal Prison Sentences Equal Parts Inspiring and Depressing, October 6, 2017

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SOMETIMES, VICTIMS HAVE TO BE REAL

It seems as though everyone took the week off except for the 5th Circuit. Over the past few days, we’ve written on two 5th Circuit decisions issued in the past week, and today we visit a third. Bu first, a word from the Supreme Court…

We ought to note that the 5th Circuit was front-and-center at the Supreme Court this week, with some justices expressing skepticism about the 5th’s unusually restrictive standard for granting certificates of appealability (COAs) in habeas corpus cases. That arose during arguments in Buck v. Davis, a Texas death-row case in which Buck’s trial lawyer introduced testimony by a psychologist during the penalty phase that Buck was statistically more likely to be dangerous in the future because he is black. His lawyer’s eliciting and use of that testimony, Buck argues, violated his constitutional right to an effective attorney.

It was a good sign for Buck that only few minutes into the argument, Justice Samuel Alito – described by one observer as “perhaps the justice least likely to be sympathetic to criminal defendants” – said that “what occurred at the penalty phase of” Buck’s trial “is indefensible.”

One of Buck’s claims is that the 5th Circuit’s standard for granting COAs is flawed. Some of the justices’ comments suggested sympathy to his claim. Justice Elena Kagan noted that in death penalty cases, the 5th Circuit denies COAs ten times more often than does the neighboring 11th Circuit. She observed that the statistic “does suggest that one of those circuits is doing something wrong.”

The Buck decision may well be a rich resource for inmates seeking post-conviction remedies under 28 U.S.C. 2254 (state prisoners) or 28 U.S.C. 2255 (federal prisoners), addressing ineffective assistance of counsel issues and standards for grant of COAs under 28 USC 2253.

Over the past few days, we’ve written on two 5th Circuit decisions issued in the past week, and today we visit a third. It’s unusual for several reasons, not the least of which is that the defendant in a child sex case is female.

Lydia Vasquez, a mother of five children, developed an Internet relationship with a man from another state named Keith. Keith was quite real, but he was also an FBI informant. During their long and disturbing electronic relationship, Lydia tried to entice him to visit her by offering to let him have sex with both her 12-year old daughter and her cousin’s infant (after the baby was born). At that point, it was too weird even for Keith, and he had an FBI agent step in, pretending he was Keith and continuing the relationship.

The FBI agent, still posing as Keith, agreed to fly into Texas from Michigan. Lydia was and Lydia was arrested on her way to pick him up at the airport. She pled guilty to inducing and enticing Keith to travel interstate to engage in indecency with a child, in violation of 18 U.S.C. § 2422(a).

When Lydia went for sentencing, the district court concluded that because her conduct involved a minor under the age of 12 (the infant), the 8-level enhancement in U.S.S.G. § 2G1.3(b)(5) applied. But there was a catch. Apparently, Lydia made up the story about the cousin’s infant. The district court said it didn’t matter if the baby was fictitious, the 8-level enhancement still applied.

The 5th Circuit reversed her 140-month sentence.

For purposes of Sec. 2G1.3(b)(5), the Guidelines defines a “minor” as (1) an individual under 18 years old; (2) an individual, whether fictitious or not, who a law enforcement officer says is under 18; or (3) an undercover cop who says he or she is under 18 years. Lydia and the Government agreed that only the first definition applied in this case, but the government argued the district court should hang the enhancement on Lydia even if the baby wasn’t real.

The Court of Appeals held that the plain language of the definition meant that the enhancement in Sec. 2G1.3(b)(5) “does not apply where the defendant solicits another person to engage in unlawful sexual activity with a fictitious minor, invented by the defendant, under twelve years of age. For the enhancement to apply under these circumstances, the minor must be a real person.”

Lydia’s presentence report had concluded that it was unclear whether the baby was real or not, so the Court remanded the case for the judge to rule on the question.

United States v. Vasquez, Case No. 15-41168 (5th Cir. Oct. 5, 2016)

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IT’S NOT MY TRUCK

Ever have this happen to you? You borrow your cousin’s pickup to run into town for a six-pack of the beer formerly known as Bud. You’re reasonably cautious: you ask him whether there are any illegal aliens in the toolbox back in the bed. He says, “Of course not!”

You drive off, mollified and a little self-satisfied that you thought to check. After all, you can’t be too safe. Your congratulatory euphoria lasts until the Border Patrol pulls you over. You open the toolbox for the nice agents, and, lo and behold, there’s an extended family of Mexican inside, eating lunch.

A common enough occurrence, right? Sure. It happened to Duane Sheridan, who was convicted of transporting aliens within the United States in violation of 8 U.S.C. § 1324. Duane explained to the jury that he had no idea those folks were in the toolbox of his cousin’s truck. He had just borrowed the Dodge Ram for a bit.

Duane was convicted, of course, and appealed the judge’s refusal to instruct the jury that when the aliens are hidden in the vehicle, control of the truck alone is not enough to prove he knew the aliens were there.

Duane likened aliens to drugs. The 5th Circuit has held that a jury can infer the knowledge element of unlawful drug possession from the defendant’s control of a vehicle in which the drugs are contained. However, when the drugs are hidden, control alone is not sufficient to prove knowledge. Duane argued that the same should apply for aliens.

The district court followed the 5th Circuit pattern instruction, which said that the jury could convict Duane only if the government proved, among other things, that he “knew or recklessly disregarded the fact that the aliens were in the United States in violation of the law” and that he was hauling the aliens “with the intent to further the alien’s unlawful presence.”

On Tuesday, the 5th Circuit rejected Duane’s position that “the district court’s instruction (and by extension, the 5th Circuit Pattern Jury Instruction) ‘took for granted Mr. Sheridan’s awareness that ‘said alien’ (the hidden cargo) was present in the pickup truck’.” The Court ruled that the instructions the jury heard presupposed that a jury would have to find that the defendant knew the aliens were hidden onboard. Otherwise, how could the defendant know or recklessly disregard the aliens’ immigration status or intend to further their being in the U.S. illegally. You can’t intend to help the illegal acts of someone you don’t know you’re helping, the Court seemed to say, and you can’t know you’re helping someone you don’t know is there.

The Court concluded that district court’s jury charge was an adequate statement of the law. That’s probably so, although the implication is not as clear as the defendant might want it. But that’s the job of defense counsel: the argument that one can’t aid someone he doesn’t know is there was one Duane’s lawyer should have been pointing out to the jury.

United States v. Sheridan, Case No. 15-41678 (5th Cir., Oct. 4, 2016)

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SOUTH OF THE BORDER

Pablo Zarate Juarez was a guy who used to travel in style. With family living in the United States, as well as substantial business interests here, Pablo found it most efficient to travel back and forth between here and his Mexican home base in a Pilatus PC-12.

The PC-12 is just a single engine airplane, but don’t let that fact fool you. The Swiss-built aircraft is all business, and pretty sweet to boot. It sports a 1,200-hp turboprop up front, and can carry 9 people in pressurized comfort, cruising at 30,000 feet with over 310 mph of airspeed. The PC-12 was the perfect choice for a high flier like Pablo. In fact, he used it to cross the border about 100 times in fewer than three years, shuttling back and forth between businesses and family commitments.

Unfortunately, some of the business may have run afoul of parts of federal law, the parts that deal with controlled substances. All of Pablo’s trans-border travel came to a screeching halt in June 2012, when his PC-12 was seized as part of a drug investigation. Luckily for Pablo, he apparently was not with the PC-12 when it was detained. He was in Mexico, where he chose to stay.

The Government filed a civil action to forfeit the PC-12. And why not? PC-12s sell for about $4.8 million new. With that kind of price tag, Pablo kind of wanted it back, so he filed a claim for the plane individually and on behalf of a couple of limited liability companies in which he had an interest. Meanwhile, the Feds indicted Pablo on money laundering conspiracy and bank fraud charges related to the civil forfeiture of the aircraft.

The Government asked the court to dismiss Pablo’s claims for the aircraft under the fugitive disentitlement statute, 28 U.S.C. § 2466, which prevents a claimant who is a fugitive from justice from contesting a civil forfeiture. The district court dismissed Pablo’s claims under § 2466.

The fugitive disentitlement doctrine, although itself not statutory, is well established in federal common law. The doctrine holds that pending appeals of escaped prisoners will be dismissed, and “is a longstanding and established principle of American law.” Estelle v. Dorrough, 420 U.S. 534, 537 (1975) The notion is that a defendant’s refusal to surrender to authorities “disentitles him to call upon the resources of the Court for determination of his claims”.

Last week, the 5th Circuit affirmed dismissal of Pablo’s claims. The “fugitive disentitlement doctrine” never applied to civil forfeiture cases until Congress resolved the issue by enacting 28 U.S.C. § 2466. The statute permits a judge to “disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action or a claim in third party proceedings” if the person knows a warrant has been issued for criminal prosecution, but either purposely leaves the United States; declines to enter the United States to submit to its jurisdiction; or otherwise evades the jurisdiction of the court in which a criminal case is pending against the person. The law may be applied to a company in which the fugitive has a substantial interest as well.

Pablo said he wasn’t really staying away from the United States. He just happened to be in Mexico. The Court didn’t buy it, noting that he was coming here all the time until the plane was seized.

Pablo said his due process rights were being violated, because he was forced to choose to forgo entering the United States to fight the civil forfeiture of the plane or to come to fight the seizure and face criminal prosecution, without being able to avail himself of the Mexico-United States extradition treaty. But the Court said that because the U.S. had not asked for extradition, Pablo had no rights to claim under the treaty.

The Court said that because the record supported a finding that Pablo remained outside the United States to intentionally avoid criminal prosecution, § 2466 required that his claim be dismissed.

United States v. 2005 Pilatus Aircraft, Bearing Tail No. N679PE, Case No. 16-40298 (5th Cir., Oct. 3, 2016)

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NEWS FLASH: DEA’S “MULTI-LEVEL SNITCHING” PROGRAM PRONE TO ABUSE

The Drug Enforcement Administration boasts that its Confidential Source Program is critical to its pursuit of illegal narcotics trafficking. Then again, Wells Fargo claims it has a 160-year “culture of working together to help our customers,” and that didn’t prevent thousands of its employees from opening up phony accounts in customers’ names and badgering other workers to “upsell” any customer unlucky enough to walk through the door or answer the phone on a slow sales day.

Last week, the Department of Justice Office of Inspector General issued a report that will shock anyone who still believes professional wrestling is not fixed. The OIG revealed that “confidential sources can be motivated by factors other than combating crime, including financial gain and avoidance of punishment; therefore, care must be taken to evaluate and supervise their use.”

The DEA’s prime motivator is, it turns out, money. Between October 1, 2010, and September 30, 2015, the DEA handed out about $237 million to about 9,000 confidential sources. assigned to its domestic offices, with over 9,000 of those sources receiving approximately $237 million in payments for information or services they provided to the DEA, an average of over $26,000 a source. The payments included about $9.4 million to people who had been “deactivated” as a source.

The OIG found that DEA’s source payment program “exposes the DEA to an unacceptably increased potential for fraud, waste, and abuse, particularly given the frequency with which DEA offices utilize and pay confidential sources…”

The report comes after the wheels started coming off the Southern District of New York federal drug case against the nephews of the Venezuelan president Nicolás Maduro. The government’s key confidential sources appear to be tainted with credibility problems, having acknowledged improper conduct, including snorting cocaine and hiring prostitutes, while being paid by DEA. It is not yet clear whether the DEA knew what its informants were doing.


The OIG report cited another area of concern as being DEA’s oversight of confidential sources it categorizes as “Limited Use” (usually called “tipsters”). DEA policy specifies these people are sources who make information available independently without direction by the DEA. The Limited Use category is regarded by the DEA as low-risk, and thus DEA policy requires the least amount of supervision. Yet OIG “found that Limited Use sources were some of DEA’s highest paid sources, with 477 Limited Use sources during the period of our review having received an estimated $26.8 million.”

DEA “tipsters” include people employed by TSA at airports, and Amtrak personnel, who provide information about travelers. The report found that “DEA did not appropriately track all confidential source activity; did not document proper justifications for all source payments; and, at times, did not adequately safeguard traveler information.”

DEA does not only use sources. Instead, something like an Amway distribution chain, its sources themselves have sub-sources, and some of the DEA money is intended to be sprinkled on them, too. The OIG said it was “extremely concerned to discover the DEA condoned its confidential sources’ use of ‘sub-sources,’ who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA. During our review of DEA files, we found evidence of sources who were paid based, in part, on the need to pay ‘sub-sources,’ but the information in the files was insufficient to allow us to determine the full extent of such payments. We found that the DEA has no controls, policies, or procedures for interactions with these ‘sub-sources.’

The deficiencies identified in the DEA audit, the OIG report said, “raise significant concerns about the adequacy of the current policies, procedures, and oversight associated with the DEA’s management of its Confidential Source Program.

Office of Inspector General, Dept. of Justice, Audit of the Drug Enforcement Administration’s Management and Oversight of its Confidential Source Program (Sept. 29, 2016)

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WHO SAYS SENTENCE REFORM IS DEAD? EVERYONE EXCEPT PAUL RYAN

Congress left town last Friday, not to return to Washington, D.C., until after the Nov. 8th election. The Sentencing Reform and Corrections Act of 2015, contrary to the wishes of House Speaker Paul Ryan (R-Wisconsin) remains unconsidered by Congress.

The House and Senate return for a lame-duck session in November, but no one except Speaker Ryan thinks there’s a ghost of a chance that the bill will come up for a vote.

Speaker Ryan has promised since last July that the House would vote on SRCA in September, but that didn’t happen. He’s still repeating his personal desire to move the bipartisan package. In a news conference last week, the Speaker committed to advance the SRCA once lawmakers return to Washington in November. The issue is a top priority for Ryan personally, although other GOP representatives are concerned about looking soft on crime.

The same day, Senator Majority Leader Mitch McConnell (R-Kentucky) offered a much different take. He said SRCA is “very divisive in my conference. I’ve got very, very smart capable people, without regard to ideology, who have very different views on that issue. Whether we can take something up that controversial in that limited amount of time available, I doubt.”

If the bill isn’t voted on by the end of the year, Congress will have to start all over in 2017.

But the odds are long. With Trump advocating for law and order, Republicans are not eager to vote on the matter. If Speaker Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out. It doesn’t help that SRCA is a key priority of President Barack Obama. Riots in Charlotte and elsewhere have also complicated the equation.

The Marshall Project, an advocacy group for criminal justice reform, last week bluntly published what it called an obituary for criminal justice reform. The vice president of Families Against Mandatory Minimums said last week that “the apparent demise of the criminal justice reform bill is not surprising, and many have taken the news as a matter of course, given the current political climate.”

Even Holly Harris, executive director of the Action Network, who only a week ago was cautiously optimistic about SRCA’s chances, now explains the  impending death of criminal justice reform as being because “everybody was so desperate to get something done this year.” She says her group will start its next push in 2017 with more comprehensive measures in mind.

For some  reformers, SRCA’s failure this year was a relief, escaping what some had feared as the worst outcome: Congress enacting a diluted reform bill, declaring mission accomplished, and dropping the subject for years. Much of the retroactivity important to federal inmates was stripped from SRCA last spring in an effort to address critics like Sen. Tom Cotton (R-Arkansas). Another consolation is the hope that Hillary Clinton, who has vowed to “reform our criminal justice system from end to end,” may win, and will keep her promise.

At the same time, Congress failed to pass some really bad bills, like “Kate’s Law,” which would have required five-year prison terms for every person reentering the U.S. illegally, a proposal to make mandatory minimum sentences for fentanyl even worse than they already are, and the Back the Blue Act, which would have made a federal case out of virtually any assault on a local police officer.

So, as The Hill put it, “sentencing reform did not get done this year. Tis the way of election years. But it still has unprecedented bipartisan support, and in any other year it would have soared through. The fight will resume in January. Till then, we can at least take some comfort in Congress’ failure to pass bad bills. For an election year, these congressional failures are successes.”

Some congressional failures are successes in disguise (The Hill, September 23, 2016)

Ryan pushes sentencing reform in face of skeptical GOP (Politico, September 27, 2016)

Ryan, McConnell split on prospects of criminal justice reform (Politico, September 29, 2016)

Criminal Justice Reform: An Obituary (The Marshall Report, September 29, 2016)

Criminal Justice Reform: No Time To Waste (Huffington Post, September 22, 2016)

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YOU’RE NOT BEING HELPFUL

Federal agencies sandbag Freedom of Information Act requesters all the time. In fact, under the Obama Administration – “the most transparent administration in history,” according to the President – “the Obama administration set a record for the number of times its federal employees told disappointed citizens, journalists and others that despite searching they couldn’t find a single page requested under the Freedom of Information Act,” according to the Associated Press.

An order in a Southern District of New York FOIA suit last week may help explain why that is. A federal judge criticized Immigration & Customs Enforcement for torpedoing an FOIA request by searching terms in the plural only, such as “home enforcement operations,” “quotas,” “statistics,” “targets,” “non-targets,” and “collaterals.”

The technique excluded all singular forms. The district court noted that if “Defendants instead searched for only the singular form, they would have yielded documents containing the plural form as well… Without explanation, such searches do not appear to be calculated to produce all responsive records.”

The court also slammed the agency for interpreting the FOIA request as narrowly as possible to avoid release of documents. The requesters were seeking data from ICE’s Law Enforcement Systems and Analysis (“LESA”) on the agency’s home raids to capture illegal immigrants. ICE admitted LESA had a data file of addresses raided, but said it “does not know—and does not track—whether that address is a business, a residence, a street, or some other type of location.” Because it couldn’t tell if the location was a home, the agency “determined that a search of LESA would not yield responsive documents.”

The court ruled that ICE’s “chief reason for failing to search LESA is not valid under FOIA. As part of an agency’s obligation to “construe FOIA requests liberally,” the agency has “no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.”

There’s a good reason that savvy FOIA veterans say that requesters should file a second FOIA request seeking the processing notes from a prior FOIA request. One reporter wrote, “In my case, ‘FOIAing my FOIA’ yielded some interesting, if depressing, behind-the-scenes info. One released email showed that, at one point, my request was forwarded to the wrong DEA field office, where it was accidentally deleted.”

Opinion and Order, Immigration Defense Project v. ICE, Case No. 14-6117 (S.D.N.Y.  Sept. 23, 2016)

Eil, Six lessons from a five-year FOIA battle (Columbia Journalism Review,  Sept. 27, 2016)

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DON’T TOUCH ME

Eddy Vail-Bailon pled guilty to reentering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Section 1326(b)(1) increases the penalty for illegal reentry when the was deported following conviction of a felony. Eddy’s crime was felony battery under Fla. Stat. § 784.041.

The district court socked Eddy with a 16-level increase in his Guidelines level because the judge decided felony battery is a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). It sure sounds it. “Battery” – unless we’re talking about the Eveready Bunny – sounds ugly.

But, observing that “you can’t judge a book by its cover,” the 11th Circuit reversed. In a decision handed down yesterday, the Court held that the Florida batter statute is divisible, but – in the wake of Welch, Mathis and Curtis Johnson, neither alternative element is a crime of violence.

Under Fla. Stat. § 784.041, a person commits felony battery if he (a) actually and intentionally touches or strikes another person against the will of the other; or (b) causes great bodily harm, permanent disability, or permanent disfigurement. The prosecution can prove a violation of statute “by showing that a defendant “intentionally struck” the victim or that he merely “actually and intentionally touched” the victim).”

When statutes are divisible, trial judges are permitted to look at the state court records to see under which of the alternatives a defendant is convicted. Eddy’s state records were not illuminating, leaving the Court to assume Eddy was convicted under the less serious of the alternatives, “actually and intentionally touching.”

The “elements clause” of Guideline 2L1.2(b)(1)(A) defines a “crime of violence” as including any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The Supreme Court has already held that Florida battery, when committed by actually and intentionally touching another against his or her will, does not satisfy the “elements clause” because it can be satisfied by any intentional physical contact, ‘no matter how slight.’ The Circuit observed that the phrase “physical force” that appears in the “elements clause” necessarily refers to “violent force—that is, force capable of causing physical pain or injury to another person.”

The Circuit held that the second element under the Florida batter statute – that the intentional touching from the first element have “cause[d] great bodily harm, permanent disability, or permanent disfigurement” – likewise contains no requirement that the offender intentionally or knowingly cause bodily harm of any type. So, as Eddy argued and the government conceded, a person can be guilty of Florida felony battery if the offender taps another person on the shoulder while that person stands near the top of stairs, and the person whose shoulder was tapped is either startled or otherwise reacts in such a way that he falls down the stairs and suffers grievous bodily harm.”

The 11th Circuit said, “A crime that occurs in these ways does not qualify under the ‘elements clause’ as a ‘crime of violence’ under Supreme Court precedent. First, it does not involve physical force’…” The Supreme Court has explained that the phrase ‘physical force’ means violent force – that is, force capable of causing physical pain or injury to another person – and explained that “violent” force is “the sort that is intended to cause bodily injury, or at a minimum likely to do so.”

This necessarily excludes Florida felony battery committed by mere touching. “Nor can it be that,” the Court held, “in a given case, the fact that a mere touching actually does result in great bodily harm somehow changes the character of the mere touching from an action that is not likely to result in bodily harm to one that is likely to result in bodily harm. In other words, the results of a specific incident of mere touching do not alter the fact that the nature of mere touching, in and of itself, as the Supreme Court concluded in Curtis Johnson, is not likely to result in bodily harm. So Florida felony battery by mere touching cannot qualify as a ‘crime of violence,’ no matter what the injury resulting from the mere touching might turn out to be.”

United States v. Vail-Bailon, Case No. 15-10351 (11th Circuit, Sept. 28, 2010)