We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BECKLES V. UNITED STATES NOT DECIDED YET, BUT SUPREME COURT SPANKS 5TH CIRCUIT IN “BLACKS ARE VIOLENT” CASE
The Supreme Court issued three opinions this morning, one of which was criminal. A decision in Beckles v. United States was not handed down, but given that the three decisions decided today were argued in October, November and early December, we anticipate that Becklescould pop at any time.
The interesting case handed down is Buck v. Davis, a Texas death penalty case in which the defense attorney amazingly enough introduced expert testimony that his client was more likely to be violent because he is black. After Buck lost his habeas corpus in state court, and was denied habeas in federal district court and the 5th Circuit Court of Appeals.
What may be of general interest to federal petitioners is the Supreme Court’s spanking of the 5th Circuit for that court’s stingy denial of Buck’s certificate of appealability. The Supreme Court complained that the Circuit “exceeded the limited scope of the COA analysis. The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course. 28 U. S. C. § 2253. At the first stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or… could conclude the issues presented are adequate to deserve encouragement to proceed further’.”
Here, the Supreme Court said, the 5th Circuit “phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue.”
The 5th Circuit is hardly alone in this approach. We think mostly of the 4th Circuit, which has COA petitioners file an “informal brief,” which suggests that the COA is being granted or denied based on an analysis of the entire case rather than the rather low bar of “appealability.”
Branding your own client with a racist stereotype? Bad lawyering…
The Supreme Court held that Buck’s lawyer was ineffective and Buck was prejudiced thereby. It sent the case back for resentencing.
The Supreme Court has not yet announced the next date for issuance of opinions, but it generally gives not much more than week’s notice. The argument dates of the three announced today suggests that Beckles is on track for a March issuance.
Buck v. Davis, Case No. 15–8049 (Supreme Court, February 22, 2017)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TIMING IS EVERYTHING
Every inmate knows the truth behind the Southern Gothic pop song “The Night The Lights Went Out in Georgia“, at least in the lyric “don’t trust your soul to no backwoods southern lawyer…”
The 6th Amendment guarantees an attorney to every person charged with a felony. The Supreme Court has interpreted the right to guarantee not just some guy or gal stuffed into a suit and carrying a briefcase. Instead, the right is to an effective lawyer.
Claims in post-conviction filings that a lawyer was ineffective – and that the defendant’s constitutional rights were therefore violated – are as plentiful as wildflowers in June. And more often than you might think, the complaints are justified.
We’re not going to plumb the depths of lawyer foolishness today. Instead, we’re looking at a Tennessee case where the claims of ineffective assistance of counsel were denied not because of what the lawyer did or didn’t do, but rather when he did or didn’t do it.
John Turner was arrested by a joint federal-state task force after robbing four Memphis-area businesses at gunpoint. The State of Tennessee charged him, and John hired attorney Mark McDaniel.
During the summer of 2008, while state charges were being litigated, state district attorney told McDaniel that the United States Attorney’s Office planned to get an indictment against John under the Hobbs Act, 18 U.S.C. § 1951, which criminalizes interference with commerce by threats or violence, and for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for each of the four robberies. On the federal firearms charges alone John faced a mandatory minimum of 82 years. The Assistant U.S. Attorney handling the matter told McDaniel he would offer John a 15-year sentence if John would accept the offer before the federal indictment was returned.
McDaniel says he relayed the federal plea deal to John, who refused to take it. He said John told him that 15 years was too much time for what he did. For his part John says McDaniel did not present the offer to him properly. John fired McDaniel and hired a new attorney, just as a new AUSA took over John’s case. The best deal the new AUSA offered was 25 years, which John accepted.
In 2012, John filed a post-conviction motion under 28 U.S.C. § 2255, claiming that McDaniel rendered ineffective assistance of counsel during the plea negotiations on the federal charges. The district court denied the motion without reaching the factual question of whether McDaniel was ineffective. Instead, the district court decided that John did not have a 6th Amendment right to counsel on the federal charges before the indictment issued.
Earlier this week, the 6th Circuit very reluctantly agreed. The Court noted that its own precedent held that until formal federal charges were filed, no 6th Amendment right to effective counsel attached. The Court found the prior holding flawed, and noted that a number of other circuits had held to the contrary.
The Circuit said
In adversarial plea negotiations like Turner’s, a defendant’s right to trial and to contest the sentence are often at stake. It makes plea negotiations a “critical stage” of the criminal process. Whether they occur before or after the filing of formal charges, it is undisputed that the plea negotiation process is adversarial by nature and the average defendant is ill equipped to navigate the process on his own. The current bright-line rule does not allow for the realities of present-day criminal prosecutions and their heavy reliance on plea bargaining. Defendants face an increasing number of federal-state prosecutions that blur the lines of demarcation on exactly when charges are filed for purposes of the Sixth Amendment right to counsel. Defendants also must navigate the complex web of federal sentencing guidelines, computations that confound even those who work with them often.
In short, there is no logic to a “bright-line” rule that charges have to be filed before a 6th Amendment right attaches. However, the Court admitted, 6th Circuit precedent in United States v. Moody, 206 F.3d 609 (6th Cir. 2000) required that the Court rule that John’s claim – event if correct – did not rise to a 6th Amendment violation.
The Court suggests that this issue may be ripe for Supreme Court review. For what it’s worth, we think the Court could have overruled the Moody precedent because of intervening Supreme Court decisions in Missouri v. Frye and Lafler v. Cooper.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
WHITE HOUSE COUNSEL REVEALS ARBITRARY WORLD OF OBAMA COMMUTATIONS
You can pay your money and take your chance. From one angle, former President Barack Obama was the most merciful president in U.S. history, granting commutations to over 1,700 federal prisoners. From another, Obama squandered chances to make needed, permanent chances in the federal criminal justice system, choosing instead to sprinkle exhibitions of mercy one a few lucky inmates, done in such a way as to burnish Obama’s image rather than provide any responsible leadership.
Chief among our complaints was that even if you’re a clemency cheerleader, you have to be profoundly disappointed that Obama accomplished so little, and so much less than he and his minions confidently predicted in 2014. Former Attorney General and Obama buddy Eric Holder once speculated that the final number of clemency grants could reach 10,000 — one of every 19 federal prisoners.
It wasn’t for lack of raw material. Obama received more petitions for clemency than any recent president. And maybe that was the problem. In a recent interview, former White House Counsel Neil Eggleston revealed that Obama himself may have been the bottleneck:
I would give him memos on the cases, and he would spend a long time on each one. For a significant number, he was fine with my recommendation. For others, he would say: “Why are you recommending this person to me? Look at his conduct in prison, look at his prior convictions. I’m uncomfortable that this guy is going to take advantage of a second chance.”
Or the alternative: There were times when the deputy attorney general may have recommended in favor of a commutation, and I recommended against it, and [Obama] would call me in and ask: “Why don’t you agree with this one?” Or he’d say: “Look there’s this prior conviction, I’m troubled by it, can you get me more information?”
He was really into the details. There were two parts to the way he thought. The first was he just thought a lot of these sentences from the 90’s and 2000’s were excessive. But he also felt very strongly about the idea of rehabilitation and second chances. It wasn’t enough that the person had just gotten too lengthy a sentence. He also wanted make sure these were people who would benefit from a second chance. So if someone didn’t do any programming, got into fights, had a lot of infractions, etc., I think the president was concerned they would be unlikely to do anything but go back to their life of crime when they got out.
He felt strongly that this was a gift, and the gift had to be earned.
Obama’s hagiographers will undoubtedly hail his obsession with the details of each of the 1,700+ commutations as evidence of the depth of commitment the President had to the commutation program, the extent of his compassion, the whatever. The plain fact is that America’s chief executive showed an unnatural preoccupation with the minutiae of commutation, hand-picking the winners and losers when his time should have been spent on larger matters. The boss should set out some broad principles – like the White House did with the Clemency Project – and then simply delegated authority to trusted staffers to carry it out.
For that matter, Eggleston’s offhand comment that Obama “felt strongly that this was a gift, and the gift had to be earned” reveals much. Holder told the American Bar Association in 2014 that the clemency initiative was intended to “correct the disparities” that were orphaned when the Fair Sentencing Act of 2010 was passed without a retroactivity provision. But Eggleston’s statement suggests that the President saw it as more Messianic, that he was empowered to magically change lives, and that he would bestow the gifts only on those he deemed worthy. Deciding who was worthy and who was not thus because as arbitrary as most other acts of God.
Eggleston seems defensive to claims of arbitrariness:
I think the thing the outside commentators didn’t really understand was that I had more information about these people than others did, including, frankly, their lawyers. I had records of how they performed in prison, and information about their prior crimes. And when people say there was arbitrariness it’s because they didn’t know factors that I knew.
All 1,700 went through me and the small group of lawyers underneath me. And ultimately I didn’t want people in jail thinking to themselves, ‘How can this be?’”
That, of course, is exactly what the folks in prison – including people with horrific drug sentences and excellent institutional records – are wondering. We had one unsuccessful inmate write to us that his disciplinary record was spotless, while another inmate there received work that Obama had commuted his sentence while siting in the Special Housing Unit because of a serious rules infraction. The inmate who wrote to us asked “how is that right?” The answer, of course, came from a former Democratic president, Jimmy Carter, who famously said, “Life is unfair.”
The inmate’s mistake, of course, was in thinking that the clemency program was ever about justice and fairness for them. It wasn’t. It was about Obama and his legacy.
In that, the clemency program was quite successful.
While anecdotes do not statistics make, we cannot help but note that one of the carefully vetted commutations – Robert Martinez-Gil, whose life sentence was commuted because Obama found he had “turned [his] life around” – just got arrested in San Antonio with a kilo of cocaine powder. He was free for about 18 months. At minimum, this does not speak well for the superiority of Obama’s analytical prowess.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NO HONOR AMONG THIEVES… OR COOPERATORS
One of the enduring myths about prisoners is how universally despised snitches are. The lowest of the low, people with no sense of loyalty, yada yada.
As one inmate (who was informed on, but had no information himself that the government wanted to swap for): “Man, you do what you gotta do.”
The number of defendants getting sentence reduction motions doesn’t reflect how many try to swap what they know for a lower sentence without success. Some solicit the government without success. Others provide information but get nothing. The problem is that the government’s offer is simple and rather one-sided: tell us everything you know, and we’ll then decide whether we feel like rewarding you with a motion to reduce sentence.
The structure of the cooperation motion provides an inmate with a powerful incentive. Under the Sentencing Guidelines, the government (and only the government) may file a motion to reduce a defendant’s sentence for cooperation. If the motion is made – under U.S.S.G. § 5K1.1 – the sentencing judge may depart downward from the Guidelines sentencing range, regardless of any mandatory minimum sentences required by statute. If the inmate waits until after sentencing to cooperate, the government (and only the government) may file a motion under Rule 35(b) of the Federal Rules of Criminal Procedure to resentence the inmate to a reduced term, again without regard to what statutes say the minimum must be.
Obviously, if the defendant faces a staggering mandatory minimum because of drug quantity or packing a gun or any of dozens of other statutory provisions, the only way to wrestle the sentence into the range of sanity is to sing like a canary, and then to depend on the kindness of a particular stranger who happens to be the Assistant U.S. Attorney. Could Blanche Dubois have been a federal defendant?
More often than we care to recall, defendants have spilled their guts, only to be denied any sentencing benefit by government lawyers who expected more. In one case we know of, a defendant was instrumental in convicting a murderer, but he helped a U.S. Attorney in one jurisdiction, and that U.S. Attorney could not convince the U.S. Attorney whose office was prosecuting the defendant a thousand miles away – and who displayed a real animus toward the defendant – to make the motion.
Unsurprisingly, we get asked regularly how to force the government to file a § 5K1.1 or a Rule 35(b) motion. Our answer is almost always the same: You can’t. The only factor limiting AUSAs in reaping the benefit of cooperation and then arbitrarily denying a sentence reduction motion is the fear that word will get around, and then no defendants will cooperate. Fat chance of that: when a defendant is facing a mandatory minimum sentence of 20+ years, there’s no straw too small to grasp.
That’s not to say that some defendants can’t be their own worst enemies. Defendants like Tyran Patton. Tyran was a major cocaine and heroin dealer in the Chicago area. In April 2010, law enforcement arrested one of Tyran’s people with 8 kilograms of cocaine and 3 kilograms of heroin, amounts that carried a substantial mandatory minimum sentence. Later, in an unrelated case, ATF agents arrested Tyran in a firearms investigation. Government agents explained the facts of life to Tyran, chiefly how they had him dead to rights on the gun, and how another train – this one a heavy-duty drug conspiracy indictment – was coming down the tracks at him. Tyran wisely agreed to confess to all and to cooperate with the ATF.
He did all right for awhile. Over a year, he made controlled purchases of guns for his ATF case agent, and ultimately helped get about 60 weapons off the street. But Tyran had his own agenda, and the ATF agent supervising him was a greenhorn. Tyran was allowed to pick his own targets, and so he did, delivering only street-level dealers while protecting higher-level gun traffickers, family members and friends.
What a tangled web Tyran spun! When the ATF told him in 2012 that he was need to testify before a grand jury, and that his grace period was running out – meaning he would be indicted on the drug charge soon – Tyran disappeared for about six months. He surfaced only after the government had finished several trials, and word was out on the street that he was a snitch. The government suspected he came forward because he needed government protection.
Tyran tried to make a plea deal with the government, but prosecutors were pretty steamed at him and refused to do so. So he pled guilty without benefit of a deal, and was sentenced to 20 years and change.
Tyran complained that he should have gotten the benefit of a sentence reduction motion from the Feds. Last week, the 7th Circuit turned him down.
The Court started by observing that district courts have limited authority to review a prosecutor’s refusal to file a substantial‐assistance motion, and may grant a remedy only if the refusal is based on an unconstitutional motive, or if it is “not rationally related to any legitimate Government end.” The burden is on the defendant to make a “substantial threshold showing” that the government improperly withheld a substantial‐assistance motion before he can receive a remedy.
Tyran argued that the government withheld his sentence reduction for reasons “not rationally related to any legitimate Government end.” The Circuit, however, found two very good reasons not to reward Tyran. First, he gamed the tyro ATF supervising agent by manipulating who he targeted to avoid ensnaring family members, friends and some of the higher-level gun movers the ATF really wanted to catch. Second, Tyran “disappeared for over six months, right after being told he was going to be indicted and needed to testify at a grand jury hearing. While Tyran claims he had to have an operation during that time and that his wife turned off his cell‐phone, even his own attorney acknowledged that Patton could have acted more promptly in getting in touch with the government following his surgery. Both rationales support the government’s decision not to move for a reduced sentence.”
Tyran argued he should have been granted a hearing in which he could develop his claim that the government’s withholding of the sentence reduction motion was illegitimate. The Court said he had it backwards: “A defendant has no right to discovery or an evidentiary hearing unless he makes a substantial threshold showing of an improper motive. Tyran failed to make such a showing. In fact, he did not even argue to the district court that the government’s rationale for refusing to move for a substantial-assistance reduction was unrelated to a legitimate government end. Instead, Tyran merely argued that he deserved the reduction because he provided the government with substantial assistance which led to the prosecution of seven individuals and taking 60 guns off the street.”
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YOU CAN’T RAPE THE WILLING
Thirty years ago, when life was courser and the P.C. police weren’t roaming around being outraged about everything, an old wag of an attorney described to us his approach to an upcoming rape trial (where he represented the defendant).
“You can’t rape the willing,” he said, a line he later used in the trial to introduce the jury to his argument that the victim had been a willing participant in the offense.
Sadly for the defendant, the trial was in a small, rural Midwest county, and both the perp and the victim were male. Back in the day, the stalwart folks in rural America did not think much of gay assignations, and they were too willing to believe that the victim would have never consented to such odious conduct. In fact, the victim was quite drunk and undoubtedly nearly as willing as the defendant, at least until he sobered up hours later, but no matter. The defendant was convicted, and probably would have been whether it was consensual or not.
A lot has changed since then, those unenlightened days when people hated gays and loved their bankers. Now it’s turned on its head.
Minas Litos and his friends were busy a decade ago doing what fraudsters all were doing, writing bogus mortgage applications for people who lived under bridges, collecting the proceeds, and riding into the sunset. Minos had a portfolio of real estate to “sell.” He would give his applicants down payment money, and then lie about their assets, income and cash on hand to Bank of America. In each of the transactions, Minos and his associates walked away with the purchase price of the property they had sold minus the down payment amount, since the “down payment” they received was their own cash (which they’d surreptitiously transferred to the impecunious buyer).
Minos and the others were duly convicted of fraud, and as part of their sentence, the district court awarded Bank of America $893,000 in restitution. Last Friday, the 7th Circuit reversed the restitution in a breathtaking decision that blasted BOA as a willing handmaiden in Minos’ fraud (and for that matter, in the Great Recession of 2008).
Federal law requires “mandatory restitution to victims of certain crimes,” 18 U.S.C. § 3663A (the Mandatory Victim Restitution Act of 1996), including fraud. But, the Court said, this applies only where “an offense resulting in damage to or loss or destruction of property of a victim of the offense”… and “that doesn’t seem to describe the loss suffered by Bank of America as a result of its improvident loans, especially when we consider its complicity in the loss — its reckless decision to make the loans without verifying the solvency of the would-be borrowers, despite the palpable risk involved…”
In the Circuit’s opinion, more time was spent on the victim than on the defendant:
The order of restitution is questionable because Bank of America, though not a coconspirator of the defendants, does not have clean hands. It ignored clear signs that the loans that it was financing at the behest of the defendants were phony. Despite its bright-eyed beginning as an upstart neighborhood bank for Italian-American workers, Bank of America has a long history of blunders and shady practices; it narrowly survived the Great Depression of the 1930s, nosedived in the 1980s, and lost tens of billions of dollars in the crash of 2008—including $16.65 billion in a settlement with the U.S. Justice Department over charges of mortgage fraud… And at the sentencing hearing the judge said: “I think they [the defendants and Bank of America] are equally culpable. Isn’t that a fair way to look at this? … Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re of equal culpability?” Indeed; and we are puzzled that after saying this the judge awarded Bank of America restitution—and in the exact amount that the government had sought.
The Court complained that the mortgage applications Minos gave to BOA were “a joke on their face.” People claimed to own real estate that they didn’t own, claimed $10,000 a month income and millions in the bank, and came back to the trough multiple times – including one woman with a claimed monthly income of $3,400 who got 6 mortgages in a 10-day period.
But, the 7th complained, BOA did no investigating whatsoever. Indeed, the Court said, “To say the bank was merely negligent would be wrong. Recklessness is closer to the mark.” The panel said BOA didn’t care, because it knew it was going to promptly unload the loans on Fannie Mae (which wore a “kick me” sign on its corporate posterior). As the Court put it, “the bank’s failure to demand evidence of the financial sufficiency of the mortgagees constituted deliberate indifference to a palpable risk that the bank’s executives must have been aware of. The bank had every incentive to close its eyes to how phony these loan applications were, because it expected to turn around and sell the mortgages to a hapless Fannie Mae.”
So, because the victim was willing, Minos and his co-conspirators should get off scot-free? Not really. The Court said
Restitution for a reckless bank? A dubious remedy indeed—which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money. We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of $893,015.
The case is being remanded to the district court, where the judge will undoubtedly resentence Minos and his co-defendants to zero restitution, but a fine of $893,000.
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HINT: IT AIN’T DRUGS AND IT AIN’T LONG SENTENCES
We are not much for writing book reviews. The last one we did was sometime in the mid-1970s in college journalism class. Occasionally, a book is published that just might change the arc of the debate, however, and John Pfaff’s new tome, Locked In, just might be such a book.
This is not beach reading. With a formidable array of statistics, dense text and a plethora of charts, Pfaff shows that some of the most cherished notions of the right and left are wrong. The War on Drugs caused mass incarceration? Wrong. Longer sentences have crowded our prisons? Wrong again.
Pfaff argues convincingly that a significant cause of prison population growth is rising admissions, and he points an accusing finger at the increasing rate at which prosecutors filed felony charges during years when both crime rates and arrests fell.
Most of the criminal justice debate has focused on rigid sentencing rules: mandatory minimum sentences, “truth in sentencing” laws that require offenders to serve at least 85% of their original sentence, and habitual criminal laws that can send away repeat offenders for decades, if not a lifetime. While criminal sentences in the U.S. are much longer than the international average, and while the records suggest the raw sentence is longer, Pfaff shows that the time actually served has grown very little.
The real problem, Pfaff says, is not “time served” but rather the sheer rate of admissions into prisons, which have skyrocketed since the 1980s. Sentencing reform legislation that does away with mandatory minimum sentences for low-level crimes may be worth doing, but it’s not going to affect mass incarceration.
Pfaff, a professor of both law and economics, says just 16% of the 1.3 million people in state prisons (where the vast majority of inmates are held) are there on drug offenses, while more than half are convicted of violent crimes. If everyone in state and federal prison serving a drug sentence was released, Pfaff writes, the US would still have 1.25 million people behind bars, an incarceration rate four times higher than in 1970.
What’s more, Pfaff points out, drug offenses don’t contribute to racial disparities in imprisonment. The percentage of whites sentenced for drug crimes (15%) is actually slightly higher than that for blacks (14.9%) and Hispanics (14.6%). Reducing sentences for nonviolent drug criminals would only have a small impact on mass incarceration.
By contrast, violent offenses explain the majority of mass imprisonment, driving racial disparities because the rate for whites (46.6%) is significantly lower than that for blacks (57.8%) and Hispanics (58.7%).
Pfaff favors “cutting long sentences for people convicted of violence, even for those with extensive criminal histories, since almost everyone starts aging out of crime by their 30s.” He also urges less reliance on prison and more on community-based anti-violence programs. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether an inmate serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.
“If we are serious about ending mass incarceration,” he argues, “we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.”
An interesting corollary argument – one we’ve long shared where firearms laws are concerned – was advanced by columnist Diane Dimond last week. She cited a 2014 National Research Council study that found “those committing crimes usually have no idea what kind of sentence their actions might net them and that ‘certainty of apprehension’ is far more important to them” than sentence length. The study reports that “arrests ensue for only a small fraction of all reported crimes.” By illustration, the number of reported robberies outnumber robbery arrests by about 4-to-1, and the offense-to-arrest ratio for burglaries is about 5-to-1. These ratios have “remained stable since 1980.”
Dimond argues that “those bent on bad deeds know the odds of getting caught, which gives them a decisive advantage, so they take their chances.”
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WITNESS CAN’T BE ASKED IF OTHER WITNESSES LIED
The ream crime is probably how airlines handle baggage to begin with…
The Government says Nelson Pereira had a sweet gig. As a baggage handler for an airlines, Nelson was able to get certain suitcases without owners flown to Newark from Puerto Rico. The Feds said the duffels were full of cocaine, and Nelson and his buddies would intercept them in the baggage area, insuring they never slid onto the baggage carousel, where the wrong kind of DEA dog might sniff them.
The indictment said the scheme went on for a decade. When heads started to roll, two defendants caught up in the scheme fingered Nelson.
Trial came down to the government informants’ word against Nelson’s. The prosecutor was hard on Nelson, pointing out repeatedly during cross-examination that Torres and Olmo – the two government witnesses – told a story very different from Frank’s version. Some might suggest that the questioning came close to badgering, but the thrust of it was the prosecutor trying to get Nelson to call the other witnesses liars:
Q. Because you didn’t know Gerardo Torres, the fact that he met you, Frank Pratts [sic] . . . that never happened either; right? A. No. It did not happen. Q. So that’s not correct then. That was another thing that Mr. Torres made up; right? Defense Attorney: Your Honor, questions as to what Mr. Gerardo Torres made up or didn’t make up, it’s like bringing something out. Court: Overruled. Q. That’s something else that Gerardo Torres made up and put against you. A. Yes. It’s a good story, but it didn’t happen.
And at another point, the district court encouraged the questioning:
Q. [B]ut you’ve never seen Carlos Camacho before until you got to court; right? A. Correct. I never met Carlos Camacho. Q. So that’s something he made up; right? A. You’re answering your own question. Q. No. I’m asking you what the question is. Court: Let’s not get into an argument here. The question is [if that’s] something that[] Mr. Torres made up. Defense Attorney: But he is not the person to say that Mr. Torres made it up or not. He is not Mr. Torres. Court: Overruled. . . . If it’s not true, then it’s something Mr. Torres made up. A. Correct. It’s a lie.
Witnesses testify falsely all the time. But that does not mean they’re liars. Lack of perception, lack of recall… it happens. As Dr. Judith Loftus, a nationally recognized expert on eyewitness testimony, put it:
Why, after all, would they lie? Ah, there’s the word – lie. That’s the word that gets us off track. You see, eyewitnesses who point their finger at innocent defendants are not liars, for they genuinely believe in the truth of their testimony. The face that they see before them is the face of the attacker. The face of innocence has become the face of guilt. That’s the frightening part – the truly horrifying idea that our memories can be changed, inextricably altered, and that what we think we know, what we believe with all our hearts, is not necessarily the truth.
You see Bigfoot? If so, you’re probably a liar.
But everyone understands “lie.” Getting a defendant to lash out at witnesses whom the jury presumes have no axe to grind makes the defendant look guilty. Name-calling make him less sympathetic. Nelson’s prosecutor kept returning to the theme, because the court overrode the defense objections to it, and Nelson was willing, after a fashion, to play ball.
Fortunately, the First Circuit was not. Last week, the Court reversed Nelson’s conviction.
The court held that “counsel should not ask one witness to comment on the veracity of the testimony of another witness… Underlying this rule is the concept that credibility judgments are for the jury, not witnesses, to make… These types of questions are also improper because Rule 608(a) of the Federal Rules of Evidence “does not permit a witness to testify that another witness was truthful or not on a specific occasion.”
Practically speaking, “was-he-lying” questions “ignore other possible explanations for inconsistent testimony . . . which put the testifying defendant in a ‘no-win’ situation of . . . either accusing another witness of lying or undermining his or her own version of events.” The questions are “argumentative, and often their primary purpose is to make the defendant appear accusatory. The danger is that the prosecutor first forces the defendant to label government witnesses as liars who are making up stories, and then, after laying this groundwork, seeks to convince the jury that it is the accusatory defendant—and not the prosecution witnesses—who is unworthy of belief.”
The error in Nelson’s case was not harmless. The Circuit noted the dearth of physical evidence, and noted that because the government witnesses’ testimony was not corroborated – and because they had an arguable motive to lie – the eight occasions on which the government pushed Nelson to call them liars deprived him of a fair trial.
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WE’RE AT A “LOSS” TO EXPLAIN IT
Tom Evans was a Colorado real estate developer who raised a pot full of investor money to renovate an apartment complex. The deal was completely legitimate, but rather risky.
The apartment project turned into a disaster.
When the deal started to go bad, Tom dumped $4.5 million of his own money into the project. Unfortunately, he also started commingling his money with the investors’ funds, and lying to the investors and bankers about how the deal was going.
When his fraud was discovered in 2007, a receiver took over the project. The receiver managed to convince investors to invest good money after bad to save the project. Alas, the rescue did not work, and the whole deal collapsed.
Tom was convicted of fraud, and sentenced to 168 months, chiefly because the district court held him responsible for a $12.3 million loss. The 10th Circuit reversed the sentence and sent the case back, telling the district court to determine “the reasonably foreseeable amount of loss to the value of the securities caused by Mr. Evans’ fraud.” The district court was “disregard any loss that occurred before the fraud began and account for the forces that acted on the securities after the fraud ended.”
In order to exclude harm preceding the fraud, the district court had to determine “the value of the securities at the time the fraud began.” But on remand, the government threw up its hands and said it could not do that. So the district court decided the investors had lost over $4 million in equity, and resentenced Tom to 121 months.
Last Friday, it was the 10th Circuit’s turn to throw up its hands. The Circuit said it had clearly told the district court what had to be done – called “the law of the case” – and the district court was not entitled to go off on a frolic by ginning up a new theory on “loss of equity.”
Money on the burn pile – but how much of it did Tom’s fraud set alight?
The problem was simply this. Before Tom committed any fraud at all, the apartment project was circling the drain. After the fraud ended, the receiver enticed investors to toss even more money on the burn pile. The issue, then, was how much of the total loss was because of the fraud instead of because of external factors. The Court complained that the government’s inability to figure out the value of the investors’ stake in the deal on the day before the fraud began didn’t excuse complying with the Court of Appeals had ordered.
The district judge had said that she would have given Tom 121 months even if her Guideline calculation was too high. She pounded Tom at sentencing, saying “You lied to your victims, you stole their funds, and you failed to manage the investment properties in the manner you promised.” She complained that she could not find Tom responsible for “the full $12 million he stole from investors”
The 10th Circuit was not impressed with the district court’s alternate sentence. The sentencing judge’s “finding was clearly erroneous,” the Circuit said, “for there is no evidence that Mr. Evans stole money from investors. To the contrary, Mr. Evans contributed approximately $4.5 million of his own money to keep the business afloat. Mr. Evans’s misrepresentations could conceivably represent a form of “stealing” if the misrepresentations had caused investors to lose money. But… the government has been unable to prove loss to investors caused by the fraud.”
The appellate panel sent the case back for resentencing, and ordered it be heard by another judge. While the 10th noted – as appeals courts always do in cases like this – that it was sure the judge was not personally biased, it nevertheless noted several reasons for assigning a different judge:
First, the district judge repeatedly stated that Mr. Evans deserved a sentence enhancement, saying that it was unfortunate that the loss computation was not higher…. The judge added that she believed Americans “do not take white collar crime seriously enough… Even after we rejected the original loss calculation, the district judge reiterated her belief that Mr. Evans had “stole[n]” approximately $12 million and expressed regret concerning the inability to order restitution in that amount… Thus, we could reasonably expect our disposition to cause difficulty on remand.
Because the government had its chance prove loss but failed to do so, the Court ordered that a new sentence would not include any enhancement for loss or number of victims.
Tom probably knew good news was coming. After this case was argued last November, the Court of Appeals ordered his release on bail on December 12th. He’s served three years, considerably more than what his corrected Guidelines suggest. Interestingly, Judge Neil Gorsuch was on the panel that considered the briefs and heard the argument. He recused himself before the judgment, because of his nomination to the Supreme Court only four days before the opinion issued.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE DEATH OF OUTRAGE
For two weeks last year, the FBI ran one of the largest purveyors of child pornography on the Internet. And the courts say that’s OK.
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 FBI operation, plenty of child porn was available to the site’s members. It’s just that 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.
At the time the FBI took control of the Playpen website, the site was at least six months and had over 158,000 members, 95,000 posts, 9,333 total topics, and over 1,500 unique users visiting the website daily. During the two-week period when the FBI operated the website, the numbers did not change.
In fact, some court exhibits suggest 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.”
The investigation has sparked a 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.
The U.S. District Court for the Eastern District of New York is the latest court to enter the fray, last week turning back a defendant’s motion to dismiss the kiddie porn possession charge against him because of outrageous government conduct. Judging by the court’s logic, outrage is dead.
The court’s reasoning could put a knot in a pretzel stick. So what if the FBI could have accomplished its investigative goals without allowing for the actual distribution of child pornography and the attendant harm to the child victims? Law enforcement decisions on how to investigate, the court held, are entitled to deference. In other words, if cops want to break the law in order to catch lawbreakers, we must let them do so. If they want to commit a greater crime in order to catch people committing lesser crimes, that’s their right.
The District Court found “clearly unfortunate and undesirable that the government’s operation of the Playpen website allowed child pornography to continue to be accessed and shared, and for child victims thereby to continue to be victimized,” but it was not outrageous. After all, the Court reasoned, the FBI did not post anything to the Playpen website, but simply let it continue to operate. Plus, the investigation let the FBI sweep up 26 child abuse victims, 35 “hands on” child sexual offenders, and 17 kiddie porn child producers.
Of the foregoing, rescuing child abuse victims comes the closest to being an end that justifies the means. But the district court’s concluding rationale is troubling. The FBI’s conduct was not outrageous, the court ruled, because it was not permitting a crime that would not otherwise occur. No one can prove that the website’s users would not just be getting their porn somewhere else if the Playpen website had been shuttered. After all, the court noted, a lot of other people distribute kiddie porn.
The same reasoning would permit the government to take over a heroin distribution operation, and to continue to sell eight-balls in order to nail end users on possession charges. The buyers are dopeheads– if they don’t buy it from the government sting, they’ll just get it on the next street corner. Or maybe the FBI will next run a string of prostitutes in order to identify johns. The government could take over a poaching operation, and continue shooting elephants in order to identify ivory buyers. A creative U.S. Attorney and some enthusiastic FBI agents could have no end of fun breaking the law with impunity, all for the pleasure of yelling “gotcha.”
The Court seemed to chastise the defense for the surprising notion that committing greater federal offenses to nab people committing lesser ones is wrong. “Built into Defendant’s argument is the counter-intuitive, and certainly unproven, assumption that Playpen users, once thwarted from accessing child pornography through that website, would simply give up and stop engaging in this conduct. Though Playpen might have been, as Defendant claims, one of the larger websites of this type, it certainly was not the only one, and there is no evidence upon which the Court can conclude that individuals interested in child pornography would have been so easily deterred from obtaining it by the shutting down of the Playpen website.”
There you have it. As long as there is a criminal element out there, the government may duplicate it, because courts will assume absent proof to the contrary that the drug user will buy her meth from someone else, the john will drive by a different street corner for his sexual assignation, the child porn consumer will troll the dark web until he finds another site. As long as a defendant cannot prove a negative, the government can commit such crimes as it likes while inducing others to break the law as well.
The Court notes that a defendant must show that the government’s conduct caused him — and not just anyone — to commit crimes that otherwise would not have committed. Here, the defense did not show that the FBI’s two-week operation of the Playpen website caused him to commit child pornography crimes and that he otherwise would not have done so. The defendant had been a Playpen member for 3-½ months, and spent under 3 hours on the site during that period (an average of 1 minute 40 seconds a day).
The flaw in this standard, of course, is that it means that outrageous conduct never occurs unless a defendant is induced to commit a crime he would not otherwise have committed, a conflation of outrageous conduct and entrapment. Here, the government victimized children by distributing kiddie porn – and when the tables are turned, the government is quick to condemn even the briefest and de minimis possession of such images for the harm that their production and distribution cause kids – in order to catch possessors. What the government did is a 15-year mandatory minimum sentence offense; possession is a five-year offense.
The court observed that “the standard for demonstrating ‘outrageous’ governmental conduct is demanding for a reason.” It must be “so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a conviction,” and must “shock the conscience.”
We’re unsure why this conduct does not amply qualify.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
BLACK SWANS AND HOPEMONGERS
For many years before the 2010 psychological thriller movie, finance types knew that “Black Swan” was a metaphor describing an event that comes as a surprise, has a major effect, and is often inappropriately rationalized after the fact with the benefit of hindsight. The term was coined because a black swan was a creature that supposedly did not exist. Even after ornithologists found that such creatures do in fact exist, the term survived.
A far outlier of a district court decision is suddenly hot again, and for all the wrong reasons is being inappropriately rationalized with hindsight – or worse. We’ve had several inquiries about what inmates are calling “the Holloway Doctrine” in the last week. Compared to the two questions about Holloway we fielded in the last two and half years – the topic is suddenly “trending,” as they say in social media.
Retired U.S. District Judge John Gleeson
In July 2014, one of our favorite federal district court judges, the since-retired EDNY Judge John Gleeson, engineered the release of a mutt named Francois Holloway, who had been locked up back in the early 1990s for three carjackings. The problem with Frank’s crimes – besides the obvious that carjacking is illegal, dangerous and impolite to the driver – was that he liked brandishing a gun when he grabbed the cars. Thus, when Frank was indicted, the grand jury included three stacked 18 USC 924(c) counts.
Conviction on a 924(c) count carries a mandatory minimum of least 5 years, and those years must be consecutive to any other counts. What’s worse, a subsequent 924(c) conviction – even in the same case – carries a mandatory 25 years consecutive to any other count.
The government offered Frank a plea deal of about 11 years (by dropping two 924(c) counts), but in Frank’s worst decision since his idea to start carjacking, he turned it down and took them to trial. When the dust settled, Frank got a sentence of 57 years and change.
Frank filed a post-conviction motion under 18 USC 2255, but it was shot down in 2002. Twelve years later, he filed an F.R.Civ.P. 60(b) motion to reopen the 2255, rehashing the prior 2255 issues and arguing that a couple of new, non-retroactive Supreme Court cases should change the outcome.
In any other courtroom in America, a Rule 60(b) filed a decade after the underlying 2255 had been denied would have gone straight to the judicial shredder. But Judge Gleeson had always been troubled by the 57-year sentence the law required him to impose on Frank. In 2008, he had asked the EDNY U.S. Attorney to cut Frank a break. The U.S. Attorney refused. When the new Rule 60(b) motion arrived on his desk, the Judge called the U.S. Attorney again.
This time, the U.S. Attorney was an Obama appointee, Loretta Lynch (who became Obama’s Attorney General in late 2014). When Gleeson asked for her agreement to his granting Frank’s Rule 60(b), she agreed.
Frank’s family packed Judge Gleeson’s courtroom, the Judge cut his sentence to 20 years (which he had already served), and Frank walked out the courthouse door to freedom. A Disney moment, to be sure.
But the case is truly a Black Swan: something completely unexpected, clearly a big and wonderful event for Frank, and a decision without any precedential value or relevance to any of the other 189,219 inmates in federal custody.
Gleeson certainly worked justice, but he did not follow the law. First, the district court had no authority to grant a Rule 60(b) motion to set aside the judgment in the 2255 proceeding. Such motions are almost always considered second-and-successive, meaning the district court doesn’t even have jurisdiction to hear the motion, let alone grant it. In fact, the word “jurisdiction” doesn’t even appear in Judge Gleeson’s 11-page decision.
Second, even if Judge Gleeson had jurisdiction to hear the 10-year-too-late Rule 60(b) motion, the pleading was absolutely meritless. Gleeson said as much in his order.
Third, even if there was merit to the Rule 60(b) motion, nothing in its arguments supported vacating two 924(c) counts but leaving everything else the way it was.
But Gleeson was a wise judge, and he also knew that a district court can order anything it wants to order if the parties are all on board. Unless a party to case files a timely notice of appeal to challenge a decision, the order becomes final. Gleeson could have ordered the Government to buy Holloway pizza a day for the rest of his life, and – once the order was no longer appealable – Trump would still be delivering Domino’s to Holloway right now.
After Holloway, Anthony Luis Rivera got his “old law” sentence of 60 years cut in half by an Oklahoma court. The record is pretty thin on this decision, except we believe his lawyer’s colorful but featherweight motion was the origin of the term “Holloway Doctrine” to explain Gleeson’s “one-off” sentence cut for Frank Holloway.
What we do know about Rivera is that he had two “big law” firms, one a national firm that represents some of the largest corporations in the world, shilling for him pro bono. That was extraordinary, suggesting a fascinating back story which we don’t know. Tony’s “stream of consciousness” motion to vacate his life-without-parole sentence for cocaine distribution – imposed on him in the pre-Guidelines days of 1985 – was as long on background on the inmate as it was short on legal argument. Notably, the motion asked the district court to follow the Holloway Doctrine, which it argued “recognizes that district courts have the discretion, inherent in our American system of justice, to subsequently reduce a defendant’s sentence in the interests of fairness — even after all appeals and collateral attacks have been exhausted and there is neither a claim of innocence nor any defect in the conviction or sentence — when it has clearly been demonstrated that the original sentence sought by the United States and imposed by the court (even when mandated by law) is revealed to be disproportionately severe.”
This is palpable nonsense. Gleeson did not so hold, but rather used the vehicle of a pending Rule 60(b) to pull off a legal sleight-of-hand with the help of a pliable United States Attorney. In Tony Rivera’s case, besides the obvious fact that he was serving an “old law” sentence having nothing to do with the mandatory Sentencing Guidelines, the judge’s order vacating one of the two consecutive 30-year sentences mentions nothing about Holloway.
The final problem with Rivera is one anything who thinks the Holloway Doctrine is a watershed legal case should remember. Supreme Court decisions bind all lower courts. Decisions of the circuit courts of appeal bind all of the district courts in their respective circuits, just not other circuit courts and not district courts located elsewhere. But District court decisions – such as Holloway and Rivera – bind absolutely no one except the parties in the particular action.
Judge Gleeson did not create a Holloway Doctrine for the simple reason that he could not.
None of this has stopped some people in the “hope-monger” industry from soliciting inmates. They sell false hopes like snake oil, strapping inmates (and too often, their families) to pay for motions that are more fit to line parakeet cages than they are to land on judges’ desks.
One email an inmate brought to our attention – from a “paralegal” firm, whatever that may be – trumpets that
if you were planning on filing a Clemency Petition you might still do so, but a more effective way of filing for early release may be the Holloway Doctrine. Request your free look to find out.
More effective way than what? Sending the Judge candy for Valentine’s Day? Baking a file into a cake?
The plain truth is that all an inmate needs to do get a break like Frank Holloway, is to (1) start out with stacked mandatory minimum sentences that a judge was forced to impose; (2) have a sentencing judge like John Gleeson, who complained at the sentencing that what he or she was imposing was too harsh; (3) find a U.S. Attorney like Loretta Lynch (rather than one likely to be appointed by President Trump) who will roll over and play dead at the judge’s request; (4) have a prison record of about 20 years of programming and good discipline; and (5) already have a pleading on file with the court that would give the court a colorable basis for granting relief. It would also help to be a minority: Judge Gleeson noted in the Holloway decision that “Black defendants like Holloway have been disproportionately subjected to the’ stacking’ of Sec. 924(c) counts that occurred here,” a fact that surely influenced his decision to convince the U.S. Attorney to agree to a rump reduction of sentence.
We confess to being intolerant of people who peddle false hope to inmates as a means of picking their pockets. The folks shilling “the Holloway Doctrine” now are only a notch up from the “territorial jurisdiction” and “sovereign citizen” types. Holloway worked in Judge Gleeson’s courtroom. The Rivera decision worked once in Oklahoma, but is both a hot mess and utterly irrelevant to Guidelines sentences.
Inmates are more likely to see the Trump helicopter arrive at the prison to fly them home than to ever see these Black Swans swim by again.
The interesting case handed down is Buck v. Davis, a Texas death penalty case in which the defense attorney amazingly enough introduced expert testimony that his client was more likely to be violent because he is black. After Buck lost his habeas corpus in state court, and was denied habeas in federal district court and the 5th Circuit Court of Appeals.
