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WHAT DID JESUS DO? WE NOW KNOW THAT – WHATEVER IT WAS – IT WASN’T CONSPIRACY

Jesus Martinez-Cruz likes the United States. Perhaps a little too well. He probably did not know, the last time he crossed the border illegally, that he would be the subject of a breakaway holding on generic conspiracy law.

Jesus, a Mexican citizen, was picked up by the Border Patrol backpacking with a friend along Interstate 10 in Arizona. Unfortunately, their backpacks lacked sleeping bags, tents, swimsuits and the makings for S’mores. Instead they were stuffed with about 150 lbs. of marijuana.

When Jesus was sentenced, his Guideline for unlawful entry – USSG Sec. 2L1.2(b)(1)(B) – imposed an additional 12-level enhancement if the defendant had “a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less,” or an 8-level enhancement if the defendant has “a conviction for an aggravated felony.” Application Note 5 to Sec. 2L1.2 defines “prior convictions of offenses counted under subsection (b)(1)” to include the offenses of “aiding and abetting, conspiring, and attempting, to commit such offenses.” The Application Notes do not define exactly what “conspiring” might be.

Jesus previously had been removed from the United States after being convicted of a federal drug conspiracy under 21 U.S.C. Sec. 846. Thus, the district court added the 8 levels, despite Jesus’s crafty argument that because the Guidelines do not define “conspiracy,” the common-law definition must apply. This is important because, at virtually all state conspiracy laws (and for that matter, the garden-variety federal conspiracy offense at 18 U.S.C. Sec. 371), require that there be an agreement to commit the crime and at least one overt act in furtherance of the conspiracy. The drug conspiracy statute – 21 U.S.C. Sec. 846 – does not require an overt act.

The district court was not swayed by Jesus’s argument that the lack of an overt-act requirement in the drug conspiracy statute meant that the prior should not be counted. Yesterday, however, the 10th Circuit agreed with Jesus.

The Circuit held that it assumes that an enumerated offense in the Guidelines “refers to the generic, contemporary meaning of the offense.” The Court uses the “categorical approach” of relying only on the statute underlying the prior offense to “ensure that the elements of that generic enumerated offense are congruent with the elements of the defendant’s prior offense.” The Court decided that the Application Note was not clear that the federal drug conspiracy offense was intended to fall within the meaning of the term “conspiracy” used in the Guideline, so it had to resort to the “categorical approach.”

Applying the categorical approach, the Court held that while “the number of federal statutes allowing for conspiracy convictions without proof of an overt act is much larger than those requiring an overt act, that by itself is not dispositive because of the narrow nature of many of the federal statutes — here, we are defining conspiracy generally (the states also define conspiracy generally). Of the federal statutes which could have applied to Martinez-Cruz’s conviction, the broadest federal conspiracy statute, § 371, requires proof of an overt act—while the drug statute, § 846, does not. And while the common law of conspiracy did not require an overt act… most jurisdictions have jettisoned that doctrine. Under the categorical approach, we look to the law’s current state.”

Considering the weight of current federal and state general conspiracy statutes, the Court said, “we conclude that the generic definition of “conspiracy” requires an overt act. Section 846 does not. Martinez-Cruz’s conspiracy conviction under § 846 is a categorical mismatch for the generic definition of “conspiracy” in U.S.S.G. § 2L1.2 Application Note 5 and he should receive an eight-level enhancement instead of twelve.”

The 10th Circuit decision is at odds with the 5th, 6th and 9th Circuits on the same question. This could set up a Supreme Court review of the question.

United States v. Martinez-Cruz, Case No. 15-2167 (10th Cir. Sept. 12, 2016)

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BLACK LIVES MATTER, BUT INMATES’ LIVES? NOT SO MUCH… 

The intention House Speaker Paul Ryan (R-Wisconsin) expressed over the summer to bring the Sentencing Reform and Corrections Act of 2015 to a floor vote this month is in trouble, even as the pressure group Black Lives Matter, surprisingly enough, is calling for the bill’s defeat in favor of restarting sentencing reform efforts from scratch in 2017.

Politico reported last Wednesday that House action in September “appears in serious doubt as members return from a long summer recess eager to pass a stopgap budget and get back out on the trail.”

Odds are longer in the Senate. Sen. John Cornyn (R-Texas), a key sponsor of the Senate version of SRCA, said last week that Senate Majority Leader Mitch McConnell (R-Kentucky), “is obviously is concerned about dividing our caucus particularly this close to an election and I share that concern. This needs to be done but I think we can wait until after the election to do it.”

Tough-on-crime hardliners spent the summer arguing against reducing sentences amid a heroin epidemic, increased urban violence and attacks on police. Those opposing the SRCA found support from an unanticipated ally last week: Black Lives Matter announced plans for a Capitol Hill lobbying effort to fight against the measure.

The Act is “one of those bills that sounds good on the face of it until you dig into what’s actually in it,” said Janaé E. Bonsu of Black Youth Project 100, an associate of Black Lives Matter. She complained that while the bill would cut most drug sentences, it doesn’t do much for people now in prison and adds new mandatory minimums for drug crimes involving guns and fentanyl. She suggested that “it’s probably better to leave it alone and try again in the next session with a better bill. But I can’t support piecemeal criminal justice reform.”

SRCA supporters discount the Black Lives Matter opposition, noting that the bill is supported by more established civil rights groups. Indeed, BLM opposition might help the bill: one liberal lobbyist for the measure said “for your reluctant members who feel like this is just a win for liberals, maybe it could prove to them how truly reasonable these policies are.”

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PAY NO ATTENTION TO THE MAN BEHIND THE CURTAIN

Since United States v. Mathis, the “modified categorical approach” of parsing state criminal statutes has been taking it on the chin. And no wonder – any fair-minded judge (of which there are some) will admit that no one really knew when the modified approach should be used, and when it should not.

The “modified categorical approach,” as you recall, is used in determining whether a state criminal statute defines a crime of burglary, a crime carrying the threat of serious intentional bodily harm, arson or extortion within the meaning of the Armed Career Criminal Act, the Sentencing Guidelines, and several other federal statutes – such as 18 U.S.C. § 16 – that use those terms in describing a crime a violence. Generally, a court is to determine whether the state statute meets (but does not exceed) the common-law definition of those terms by reading the statute, not considering what it is the defendant actually did to violate the statute. That’s the “categorical approach.”

But from time to time, a single statute creates multiple offenses. When that happens, a court may consult a limited universe of documents to determine which offense the defendant was convicted of committing. This is the “modified categorical approach,” but it only applies to “divisible” statutes. In Mathis, the Supreme Court recently clarified (although some would argue that whatever Mathis delivered, it was not clarification) that a statute is considered divisible only if it creates multiple offenses by setting forth alternative elements.

Justin Edwards and Ryan Pouliot pled guilty to firearms offenses carrying an enhanced base offense level under the Guidelines if the defendant has a prior conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a). The version of the Guidelines in effect when they were sentenced defined “crime of violence” to include “any offense under federal or state law… that… is burglary of a dwelling.” § 4B1.2(a)(2). Justin and Ryan had prior Wisconsin burglary convictions for burglary; their district judges counted the convictions as crime-of-violence predicates and applied the higher offense level.

Yesterday, the 7th Circuit reversed the sentences. The Court held that Wisconsin defined burglary more broadly than the Guidelines by prohibiting burglary of a “building or dwelling.” Justin’s and Ryan’s judges – using the modified categorical approach because the statute said “building or dwelling” – looked at the boys’ state charging documents, and found they had been convicted of burglary of a dwelling. Thus, the judges applied a higher Guidelines offense level.

“After Mathis” the Circuit said, “ it’s clear that this recourse to state-court charging documents was improper. The relevant subsection of Wisconsin’s burglary statute sets forth alternative means of satisfying the location element of the state’s burglary offense.” That being the case, the district courts could look no further than the words of the statute. Because the statute criminalized burglary of either a dwelling or a place – such as a shed or outhouse – where no one lived, it was broader than the definition in U.S.S.G. § 4B1.2(a)(2), and could not support the enhanced sentence.

And much like the Wizard of Oz’s admonition to Dorothy to “pay no attention to that man behind the curtain,” the Circuit acknowledged that “if a statute defines an offense more broadly than the Guidelines, the prior conviction doesn’t count, “even if the defendant’s actual conduct (i.e., the facts of the crime) would fit within the Guidelines definition.”

The 7th Circuit conceded that “Mathis dealt with whether a prior conviction qualifies as a violent felony under the ACCA” and not the Guidelines. Nevertheless, the Court said, “the Guidelines do use the same language of “conviction” and create the same potential for unfairness to defendants in sentencing… and Mathis itself indicates that its holding applies in the immigration context, where Sixth Amendment concerns are similarly immaterial… These reasons, along with our precedents treating ACCA and Guidelines cases interchangeably for purposes of the categorical approach, lead us to conclude that Mathis applies with equal force in the context of the career-offender guideline.”

United States v. Edwards, Case No. 15-2373 (7th Cir. Sept. 8, 2016)

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SAM THE SHAM

Twelve years ago, the Richland County, Ohio, Sheriff’s Office launched Operation Turnaround after a drug-related death made headlines in the county seat of Mansfield. Proving that too many cooks spoil the pot, the DEA joined in Operation Turnaround the next year, assigning DEA Special Agent Lee Lucas to the case.

Bad choice. Lee Lucas was, charitably put, a rogue agent. He registered Jerrell Bray as a DEA informant, and Jerrell started making controlled buys. Two people swept up in the Operation were Lowestco Ballard andGeneva France, after Agent Lucas testified Jerrell had made drug buys from them.

Jerrell worked with several RCSO officers, including Detective Charles Metcalf; his supervisor, Sergeant Matthew Mayer; and their supervisor, the head of the detective bureau, Captain Larry Faith. Faith was supervised by non-defendant Major Reeves, who was supervised by Sheriff Steve Sheldon. As a result of Jerrell Bray’s controlled buys, law enforcement arrested and prosecuted over two dozen people, including Ballard and France.

In 2007, Operation Turnaround fell apart. By then, Jerrell was doing time for an unrelated homicide. He revealed that he had systematically framed targets of Operation Turnaround by using stand-ins to stage drug transactions or by passing off his own drugs as having been purchased from targets under investigation. He claimed that Agent Lucas and another DEA agent were complicit in his actions, specifically those involving Geneva France. He did not implicate any of the RCSO deputies involved.

By then, France had been convicted, although Ballard won at trial after spending a year in pretrial detention. Jerrell Bray pleaded guilty to two counts of perjury and five counts of deprivation of civil rights. His plea agreement indicated he falsely identified a buyer named “Lil S” as Geneva France, and that he committed perjury at her trial. The government moved to vacate France’s conviction, but she spent 16 months in prison before that happened. Bray’s plea agreement did not mention Ballard, who had already been acquitted.

The Feds indicted Special Agent Lucas for obstruction of justice, making false statements, perjury, and deprivation of civil rights for his role in Operation Turnaround. Jerrell Bray testified as a government witness at Lucas’s trial, admitting to fabricating evidence against Ballard and France. But he said that no law enforcement officials, including Lucas, were involved in or aware of his deception. A jury found Lucas not guilty (although the Dept. of Justice Inspector General later blasted Lucas for having “falsified reports and testimony to corroborate Bray’s false identifications.”

France and Ballard sued everyone in a 42 U.S.C. § 1983 action, including the Sheriff’s deputies involved in “Operation Turnaround.” (The government settled with them for Lucas’s conduct a long time ago). The deputies, however, moved for summary judgment on the basis they relied in good faith on Agent Lucas and Jerrell’s falsehoods.

In 2012, Ballard and French located Jerrell Bray (still in prison), and managed to get a new affidavit from him. The following month, in a serendipitous piece of karma, Jerrell died. But his swan song affidavit alleged that the RCSO deputies knew he was framing the targets of Operation Turnaround.

Normally, an affidavit of controverted fact like that would be enough to get Ballard and French past the deputies’ motion for summary judgment. The district court, however, disregarded Bray’s statement under the “sham affidavit” doctrine, and found the deputies immune from suit.

Yesterday, the 6th Circuit upheld the dismissal. Under the “sham affidavit” doctrine, after a motion for summary judgment has been made, a party may not file an affidavit that contradicts his earlier sworn testimony. If the affidavit directly contradicts prior sworn testimony, the Court said, it should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction.” Even if the affidavit does not directly contradict prior sworn testimony, it should nonetheless be stricken if it is “an attempt to create a sham fact issue.”

The reason for the doctrine is simple: If a party who has previously been examined at length under oath could raise an issue of fact simply by submitting an affidavit contradicting his or her own prior testimony, “this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”

This, the 6th Circuit said, was Jerrell Bray’s third bite of the apple, the third different story he had told about Operation Turnaround. When Jerrell first confessed to framing people, he implicated Agent Lucas as a participant in framing Operation Turnaround targets. Even then, he did not implicate any Sheriff’s deputies in the initial story. Then, at Lucas’s criminal trial, Jerrell told his second version of events and testified that no law-enforcement officers – not even the DEA agents – had worked with him to fabricate evidence. Now that Jerrell was a defendant in this suit, he told a third story.

The twist, the Court admitted, is that the “sham affidavit” doctrine is generally applied against a party who attempts to avoid summary judgment by filing his own affidavit that directly contradicts his own prior sworn testimony. Ballard and France argued that the district court should consider Jerrell’s affidavit because they made no contradictory statements to avoid summary judgment. Instead, they submitted an affidavit from an opposing party that went against his own interests, and therefore the sham affidavit doctrine should not bar its use.

The Circuit Court made short work of this argument. It held that Jerrell’s affidavit “was submitted for the sole purpose of defeating his codefendants’ motions for summary judgment. And Bray’s interests, while perhaps not directly adverse to his codefendants’, were certainly not aligned with them.

The panel found the rationale underlying the sham affidavit doctrine to be persuasive. Jerrell Bray’s affidavit directly contradicts his sworn testimony at Lucas’s trial in 2011, and was inconsistent with his 2007 statements to authorities — so even when Bray was accusing law-enforcement officials of framing targets, he still did not implicate the deputies.

The RCSO deputies are off the hook.

France v. Lucas, Case No. 15-3593 (6th Cir. Sept. 7, 2016)

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FBI “OPERATION PACIFIER” CHILD PORN STING UNDER FIRE

For two weeks last year, the FBI ran one of the largest purveyors of child pornography on the Internet. And now, the agency would rather not talk about it.

After arresting the North Carolina administrator of The Playpen, a child-pornography Internet bulletin board on the “dark web,” accessed through a Tor browser, agents seized the site’s server and moved it to Virginia warehouse. From there, they ran “Operation Pacifier,” a computer-hacking operation of unparalleled scope that has thus far led to criminal charges against almost 200 people.During the two weeks the FBI ran The Playpen, visitors to the site traded at least 48,000 images, 200 videos and 13,000 kiddie porn links. At the same time the smut was being transmitted, agents included a secret “Network Investigative Technique,” or NIT, to invade their users’ computers, gather personal information and send it back to the FBI.

In fact, recently filed court exhibits suggest that The Playpen site performed substantially better while under the FBI’s control, with a number of users even commenting on the improvements. The defense for the man accused of being the original administrator of Playpen says these improvements led to the site becoming even more popular. “The FBI distributed child pornography to viewers and downloaders worldwide for nearly two weeks, until at least March 4, 2015, even working to improve the performance of the website beyond its original capability,” Peter Adolf, an assistant federal defender in the Western District of North Carolina, wrote in a motion to have his client’s indictment thrown out for outrageous government conduct. “During those two weeks, the website’s membership grew by over 30%, the number of unique weekly visitors to the site more than quadrupled, and approximately 200 videos, 9,000 images and 13,000 links to child pornography were posted to the site.”

Defense counsel Adolf’s motion contends that “government agents worked hard to upgrade the website’s capability to distribute large amounts of child pornography quickly and efficiently, resulting in more users receiving more child pornography faster than they ever did when the website was running ‘illegally.’” He argues the FBI engaged in “outrageous conduct” by distributing child pornography on a massive scale. Such activity by government agents in an investigation could lead to dismissal of charges if, as Adolf writes, the conduct is “shocking” or “offensive to traditional notions of fundamental fairness.”

What is new here is the defense’s claim that the FBI deliberately improved the site’s functionality for its users, and that this in turn led to more people signing up to Playpen. Adolf does not provide any solid evidence for this apparent causality, but points to the archived Playpen messages which indicate improvements took place.

The investigation has sparked a growing social and legal controversy over the FBI’s tactics and the impact on Internet privacy, as well as over the agency committing the more serious crime of distributing child porn in order to catch people committing the less serious crime of possessing child porn. Some critics have compared the sting to the notorious Operation Fast and Furious, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed the illegal sales of thousands of guns to drug smugglers, who later used them in crimes.

Now, the FBI’s refusal to discuss Operation Pacifier and reveal exactly how it was conducted is jeopardizing some of the resulting criminal prosecutions. Last month, in United States v. Michaud, a federal judge in Tacoma, Washington, suppressed the evidence obtained against a man indicted in July 2015 on a charge of receiving child pornography because the FBI refused to reveal how it was gathered.

Similar motions are pending in other prosecutions in Washington and elsewhere around the country. USA Today reported on Wednesday that in United States v. Scarborough, a Tennessee case, U.S. Magistrate Judge Clifford Shirley late last month declared the FBI’s search warrant process in its takeover of The Playpen server to be an illegal search, joining at least six other federal judges in the nation to so rule.

But Magistrate Judge Shirley refused to exclude the evidence gleaned as a result of Operation Pacifier, ruling the FBI’s method of obtaining incriminating evidence against The Playpen users wasn’t nefarious but merely misguided. Shirley is allowing the evidence against Scarbrough to stand under the good faith exception, that the agents proceeded in good-faith reliance on the law.

According to court documents, between Feb. 20 and March 4, 2015, as many as 100,000 people logged onto the site, which was accessible only by using the anonymous “Tor” browser, which encrypts and routes Internet traffic through thousands of other computers to hide the identity of a user. Some defense attorneys estimate that over 1 million child porn images were distributed during that 2-week operation.

USA Today, FBI tactic in national child porn sting under attack (September 7, 2016)

Motherboard, Lawyer: Dark Web Child Porn Site Ran Better When It Was Taken Over by the FBI (August 23, 2016)

Seattle Times, FBI’s massive porn sting puts internet privacy in crossfire (August 27, 2016)

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BITING THE BULLET

In the early morning hours of July 10, 2014, gunfire broke outside of Willard’s Bar in St. Paul, Minnesota. The police showed up, they arrested  Leonard Hill. When they frisked him, they found 23 rounds of Federal Premium 9-mm ammo in his pocket, but no gun.

Assuming Lenny got rid of the gun before the police showed up, he might have been feeling smug. No gun, no felon-in-possession charge, right?

Wrong. If Lenny had read 18 U.S.C. § 922(g), he would have noted that it prohibited not only possession of a firearm, but of the ammunition that goes in it. What’s more, Congress wrote the statute with a little twist that was about to bite Lenny in the fundament.

The felon-in-possession statute does not prohibit a felon from possessing any firearm, but rather just one that traveled in interstate commerce. Do you need a Tommy gun but have a record? Move to Massachusetts, where Auto-Ordinance manufactures .45 caliber replicas of the Thompson submachine gun (in semi-auto only, but they’re beautiful pieces of work). Living in Boston, you can carry an Auto-Ordinance “Tommy” no matter what your record may have on it.

But even though 18 U.S.C. § 922(g) covered ammo, Lenny still figured he had an out. Federal Cartridge ammunition is manufactured in Anoka, Minnesota, so the rounds in his pocket were as native to the state as the Honeycrisp apple. But as with everything in the law, there’s a catch. A firearm does not move in interstate commerce unless it is already a firearm when it is shipped across a state line. Thus, the steel in the receiver may come from Pennsylvania, the wood in the stock from Malaysia, and the anodized finish from Anodazia. The burp gun itself did not acquire firearm status until it was manufactured into a firearm in the Bay State. But ammunition is different.

The statute not only prohibits a felon from possession the finished ammo product, but also bans “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” 18 U.S.C. § 921(17)(A). In this case, the government put a long-time Federal Cartridge employee on the stand, who took apart one of the rounds Lenny had been carrying and separated it into its components. He was able to date the round as being no older than 2011, and testified that while the cartridge case, the primer and the bullet were made in Minnesota, the powder was not. Instead, it was a very particular kind of ball powder made by a single manufacturer in Florida, and was thus as southern as an orange grove.

Last week, the 8th Circuit upheld Lenny’s conviction. The Court said that based on the expert testimony, a rational jury could find beyond a reasonable doubt that Federal Cartridge Co. used propellant powder manufactured outside of Minnesota at the time it produced the ammunition seized from Hill. The expert testified that Federal Cartridge purchases all of the powder it uses from outside the state of Minnesota. In this case, not only was the expert able “conclude the propellant powder was manufactured outside of Minnesota, but he was able to identify the specific supplier for the ammunition seized from Hill because he recognized it as ball powder unique to St. Marks, Florida… Accordingly, the government established the ammunition seized from Hill was in or affecting interstate commerce.”

And what was the point of nailing Lenny Hill for a few rounds of ammo? First, the police were convinced Lenny was up to no good (and had probably been the shooter), but they couldn’t prove it. Second, Lenny’s felony priors were not for insider trading: he had either crimes of violence or drug trafficking in his background, while underscored police suspicions about Lenny’s activities, and let prosecutors hang an Armed Career Criminal Act sentence on Lenny. He was sentenced to 192 months, which works out to over 8 months for each round in his pocket.

The lesson? Sure felons can own guns – intrastate guns – but the likelihood they can lawfully possess any ammo is pretty unlikely.

United States v. Hill, Case No. 15-3350 (8th Circuit, August 2, 2016)

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BOP PRE-RELEASE PROGRAM SUCKS

It is an inmate article of faith that the BOP Release Preparation Program – hours of mind-numbing lectures by bored presenters imparting incomplete, irrelevant or just plain wrong information – is a joke. It seems the Department of Justice Inspector General agrees.

In a report released last Wednesday, the IG found “the BOP does not ensure that the RPPs… are meeting inmate needs. Specifically, BOP policy does not provide a nationwide RPP curriculum, or even a centralized framework to guide curriculum development. Rather, it leaves each BOP institution to determine its own RPP curriculum, which has led to widely inconsistent curricula, content, and quality among RPP courses.”

The BOP data show that less than a third of inmates required to take the RPP actually complete the program. What’s more, the IG said, “there are often few incentives for inmates to participate and no repercussions for those who refuse or choose not to complete the program.” Even when inmates do participate, they’re as likely to be bored as to benefit. The IG said “the BOP cannot ensure that the courses are consistently of a quality high enough to be useful to inmates. “

The BOP pledged to make specific improvements, saying it “will establish a mechanism to assess the extent to which the (program) provides inmates with relevant skills and knowledge to prepare them for successful re-entry to society.”

Uh-huh.

Dept. of Justice Inspector General, Review of the Federal Bureau of Prisons’ Release Preparation Program (Aug. 31, 2016)

REPORT COULD SHAKE UP EXPERTS IN CRIMINAL TRIALS

Much of the forensic analysis used in criminal trials is not scientifically valid, according to a draft report from the President’s Council of Advisors on Science and Technology.

The Wall Street Journal reported last week that the study, to be released in final form later this month, raises questions about the use of bite-mark, hair, footwear, firearm and tool-mark analysis routinely used as evidence in thousands of trials every year. The report contends the lack of scientific rigor “is not just a hypothetical problem but a real and significant weakness in the judicial system.”

“It has become increasingly clear in recent years that lack of rigor in the assessment of the scientific validity of forensic evidence is not just a hypothetical problem but a real and significant weakness in the judicial system,” the Journal quotes the draft review as saying.

“What they’ve done is turn the accepted reliability of expert witnesses and their evidence on their heads,” complained Jim Pasco, executive director of the Fraternal Order of Police. But Barry Pollack, president of the National Association of Criminal Defense Lawyers, said the entire area of forensic science in criminal trials “cries out for further independent analysis.” He said the report also should open the door to old cases being re-examined. “I would be surprised if there aren’t further exonerations as the result of re-examining those old cases.”

The lack of scientific rigor “is not just a hypothetical problem but a real and significant weakness in the judicial system,” the report said.

Wall Street Journal, Presidential Advisory Council Questions Validity of Forensics in Criminal Trials (Sept. 1, 2016)

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HEADBUTTS FOR BUTTHEADS

As a general proposition – nearly as an immutable law – it’s a pretty bad idea for an inmate to take a swing at a correctional officer. There are a lot of reasons, starting with the fact that while the COs are not armed, they have a lot of friends nearby who are. Add to that 18 U.S.C. § 111, which makes assaulting a federal correctional officer a felony (and there’s no inmate who needs any more felony convictions), and you can make a pretty convincing case that only a butthead would throw a punch at a CO.

All that being said, the Constitution apparently does not mean that COs can wail on their charges without the inmates being entitled at some point to mount a defense. Federal inmate Josh Waldman recently explored the parameters of that right.

Josh was headed to the dining hall in his winter coat. That’s not uncommon, except that it was 70 degrees, which caused a CO to wonder whether Josh was hiding something in its folds. When the CO tried to pat down Josh, Josh decided to be a butthead, and objected by headbutting the officer.

That of course engendered an immediate response that wasn’t good for Josh. After he was subdued and sent to the hole for an extended cool-down period, Josh was charged with assaulting a CO. At trial, he argued self-defense but was convicted anyway (and got five more years on top of his existing sentence).

This week, the 7th Circuit upheld the conviction, but did so in a thoughtful opinion that examined an inmate’s right of self defense. True, the Court said, 18 U.S.C. § 111 does not explicitly address self‐defense, but “when a statute is silent on the question of affirmative defenses, we are to effectuate the defense as Congress may have contemplated it, looking to the common law as a guide.”

At common law, the Court said, self-defense is the use of force necessary to defend against the imminent use of unlawful force. But prisons are a bit different. “Sometimes,” the Court said, “it is within the bounds of the 8th Amendment for correctional officers to use force that would be unlawful outside of prison walls. That is because lawful incarceration brings about the necessary withdrawal or limitation of many privileges or rights, a retraction justified by the considerations of our penal system… And corrections officers face the difficult task of balancing the need to maintain or restore discipline through force against the risk of injury to inmates. So whether a prison security measure violates the 8th Amendment turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”

Although the government argued that prisoners should be allowed to use force only to prevent death or serious bodily harm, the Circuit held that same test should hold apply for a prisoner’s use of force. The 8th Amendment harm test applied to COs’ use of force, the Court said, “is as useful in determining if an inmate is justified in using self‐defense as it is in determining if a prisoner has an 8th Amendment claim against his jailers.” The government’s proposed standard, the Circuit wrote, would “prevent inmates from protecting themselves from sadistic and malicious acts which do not cause serious bodily harm, but which everyone can agree are egregious violations of the 8th Amendment.”

An example, the Court observed, would be sexual abuse of inmates. The Court said, “We have previously held that forcing a prisoner to perform sexually provocative acts in front of spectators is a viable 8th Amendment claim. Prisoners should not endure such abuse when they could easily act to stop it because they would risk being convicted of assaulting an officer. Under the federal definition of “serious bodily harm,” the Court explained, “extreme physical pain, protracted and obvious disfigurement, or protracted loss of the function of a bodily member, organ or mental faculty, inmates would risk further incarceration if they tried to resist such abuse. In the midst of enduring abuse by officials, prisoners should not be expected to calculate whether the requisite disfigurement or loss of bodily function will come to pass before acting to protect themselves. Such a result is not consistent with the 8th Amendment, and would give prison officials free reign to maliciously and sadistically inflict psychological torture on prisoners, so long as they take care not to inflict any physical injury in the process.”

None of this helped Josh Waldman, however. The Court agreed that the only harm he faced was being frisked. That was not justification for headbutting the CO, so his conviction stands.

United States v. Waldman, Case No. 15-1756 (7th Cir. August 30, 2016)

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BAD JUDGE, BAD LAWYER

It sounds more like juvenile court than a federal criminal trial. An attorney and judge going at it hammer-and-tong, the judge remonstrating the lawyer for “misleading questions,” admonishing counsel to “do your homework,” and telling him to “shut up and sit down.” And when all that failed, the court – in the presence of the jury – directed a U.S. Marshal Service deputy to forcibly place the attorney in his chair (if not in his place).

Too many judicial highjinks for due process to tolerate? Not so, the 1st Circuit said told unlucky defendant Rene Márquez-Perez on Tuesday. The Court of Appeals held that, but for the chair-seating incident, the trial judge was well within his discretion in how he controlled his courtroom.

The forcible seating came when the government objected to a defense question. The defense attorney, brash but not too bright (see below), objected to the government’s objection. After he interrupted the court and prosecutor repeatedly, even after the judge explained that you can’t object to an objection, the judge exploded, “Sit down and shut up. Sit down and shut up while he makes his objection.” When counsel was too obtuse to concede, the judge ordered, “Sit down. Sit down, Mr. Burgos. Marshal, have him sit down.”

The 1st Circuit agreed that forcing the lawyer into his chair stepped over the line. The panel noted that “the trial judge did not command force to counter a physical threat or else as a last resort. Rather, he directed the security officer to forcibly seat counsel to resolve a verbal dispute that had erupted just moments earlier. The judge did so in the presence of the jury, and without first exhausting other options, such as removing the jury and pronouncing a stern warning of sanction or contempt. Under these circumstances, the judge used force not as a last resort, but nearly as a first one. We are not indifferent to the difficult task that a trial judge sometimes faces in maintaining control of a courtroom, nor to the reality that a judge’s demeanor while exercising that control will not always project unruffled serenity. On this record, however, we conclude that the judge’s speedy resort to use of force was not consistent with the very purpose of a court system to adjudicate controversies. . . in the calmness and solemnity of the courtroom according to legal procedures.”

Nevertheless, the judge’s over-reaction to defense counsel’s courtroom conduct did not require a new trial. The appellate panel said the trial judge’s resort to the Marshals “carried no suggestion that the defense case was weak or that the judge sided with the prosecutor.” While the error did take place in the jury’s presence, it “did not affect critical evidence, or otherwise deter Márquez from presenting his case; indeed, the judge eventually overruled the government’s objection in favor of Márquez.”

All was not lost for defendant Márquez, however. He complained that if his lawyer had shown him the government’s video evidence before trial, he would have pled guilty. Márquez did not benefit from counsel’s advice about the videos because counsel had not watched them, either: although counsel could have done so, he admitted to the district judge that he “decided not to see them, for the record.” Arguing that his lawyer was ineffective – in part because of this foolish record admission – Márquez asked that his conviction be vacated so he could from the government’s plea deal he had previously rebuffed.

Instances where a direct appeal wins a remand for ineffective assistance of counsel are very unusual. Courts typically deny ineffectiveness claims on direct appeal “due to an insufficiently developed record, leaving defendants to bring a collateral attack under 28 U.S.C. § 2255.” However, the panel said, “in rare cases where the record is sufficiently developed, we may resolve the claim on direct appeal. Moreover, even on an inchoate record, we will sometimes remand for an evidentiary hearing where the defendant has identified in the record sufficient indicia of ineffectiveness.”

Here, the 1st said Márquez had identified “sufficient signs of ineffectiveness” to justify a remand for an evidentiary hearing. “Here,” the Court said, “counsel’s failure to watch the videos appears to fall below [the] standard. First, counsel knew that the government probably would rely on the videos because the government formally designated the videos as evidence-intended-for-trial Counsel’s failure to watch the videos was exacerbated by his own beliefs, as expressed in a motion that he filed, that the videos contained exculpatory evidence. Second, the videos were easily accessible because the government produced them in discovery, presenting most of the videos to the defense two months before trial.”

The Court found evidence Márquez was prejudiced by counsel’s failing, because there was indication that “but for his attorney’s deficient performance, he would have pled guilty and received a lesser sentence.”

United States v. Márquez-Perez, Case No. 14-2246  (1st Cir. Aug. 30, 2016)

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A PRISON WITHOUT BARS

One of the oft-overlooked requirements for filing a habeas corpus action under 28 U.S.C. Secs. 2241, 2254 or 2255 is that the petitioner be “in custody.” You’d think it would be pretty binary – either you’re locked up or not. But it’s not that easy, and last week, the U.S. Court of Appeals for the 2nd Circuit got to grapple with it.

In a split decision, a Circuit panel reinstated the habeas petition of Robert Nowakowski, a man convicted in state court of 2nd degree harassment for a 2006 assault on a tenant in his building, despite his claim that the charge was fabricated by his landlord and neighbors.

Bob was sentenced to serve a year of conditional discharge with one day of community service, a sentence that included no jail time at all. Before he completed his sentence, such as it was, Bob filed a pro se petition for a writ of habeas corpus in the Eastern District of New York.

The Judge held the petition was moot because Bob had completed his sentence during the habeas proceeding. Thus, the district court said, there was no live case or controversy under Article III of the Constitution, and thus Bob had no standing.

Last week, the 2nd Circuit reversed on both grounds. True, the majority held, 28 U.S.C. § 2254 requires that a petitioner be “in custody,” but courts “have recognized that a variety of nonconfinement restraints on liberty satisfy the custodial requirement,” including restraints that “required petitioners to appear in certain places at certain times, thus preventing them from exercising the free movement and autonomy available to the unrestricted public, or exposed them to future adverse consequences on discretion of the supervising court.”

The Kings County District Attorney’s Office had told Bob to show up for a day of community service with the Department of Parks and Recreation or risk a bench warrant. That directive, the Court said, “falls within the category of restraints that satisfy the statutory requirement of custody.”

Additionally, the Court said, just because Bob’s year was up did not mean the habeas petition was moot. The Supreme Court in Sibron v. New York articulated a presumption that criminal convictions have continuing collateral consequences. Once a petitioner identifies at least one collateral consequence flowing from the conviction, the state has the burden of proving there is “no possibility” that such consequences will attach.

Here, the Court held, Bob has shown his “conviction subjects him to the possibility of impeachment in a future criminal proceeding and thus presents a sufficient continuing collateral consequence to satisfy the requirements of a live case or controversy.”

Nowakowski v. New York, Case No. 14-1964 (2nd Cir.  Aug. 26, 2016)