Now’s Your Chance, Colette – Update for September 18, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

REDEMPTION FOR COLETTE PETERS IS AT HAND

kumbaya221003On Friday, I reported on last week’s furball at the Senate Judiciary Committee oversight committee hearing, at which Bureau of Prisons Director Colette Peters was soundly thrashed by senator after senator about her agency’s poor correspondence record when it comes to responding to Congressional inquiries.

Specifically, after being warned last fall (during an otherwise kumbaya hearing welcoming Peters as the new director after the unlamented departure of Michael Carvajal) that various letters and requests for information the Senate had sent to the BOP over the previous years had gone unanswered, Colette has let another year’s worth of Senate interrogatories pile up. Her excuse that answers to senators’ letters had to go through a “review process” was as lame as it sounded.

Committee chairman Sen Richard Durbin (D-IL) ended the contentious session with some good advice for Peters: “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.” She promised to do better, albeit in a fuzzy way that promised no hard deadlines.

mail210312Lucky for Peters, her chance to turn over a new leaf on responding to Senate concerns has already arrived. Last Tuesday, Sens Durbin, Charles Grassley (R-IA), Joe Manchin (D-WV) and Shelley Moore Capito (R-WV) wrote a letter to Peters “regarding allegations of serious misconduct” occurring at FCC Hazelton. The letter asked that DOJ and the BOP “immediately investigate disturbing whistleblower reports of abusive treatment of incarcerated individuals and other employee misconduct… These reports, combined with public reporting on FCC Hazelton’s dire staffing shortages and proliferation of weapons contraband, paint a grim picture of the institution’s inability to ensure a safe environment for those in BOP custody and employees alike.”

hazelton181106The problems at “Misery  Mountain” are nothing new.  The letter to Peters, however, is quite detailed, alleging that:

  • Hazelton staff released the wrong incarcerated individual from the facility after failing to properly identify the correct individual scheduled for release.
  • A group of inmates escaped from the prison camp and supervisory staff attempted to cover it up.
  • Supervisory Hazelton staff falsified documents, encouraged inmate abuse, and covered up alleged abuse and escapes of incarcerated individuals. The falsified documents include medical assessments, incident reports, duty rosters, and time and attendance sheets, along with requests to tamper with corresponding security cameras to cover up inmate escapes. The employees engaged in these practices have not been disciplined, and, in some cases, received promotions, despite open investigations into their misconduct.
  • A staff member punched a prisoner on camera.
  • Staff members use restrictive housing punitively against prisoners and engage in a pattern of physical abuse of inmates in the SHU.
  • Staff repeatedly use racial slurs against other staff members and prisoners.
  • Staff urinated on prisoner property.
  • Staff has forced prisoners to urinate and defecate on themselves as a condition of being released from restrictive custody.
  • Staff assaulted a prisoner, breaking his ribs.
  • Staff beat a SHU prisoner so severely that he had a seizure and had to be hospitalized.
  • Staff shreds personal inmate mail and failing to provide inmates access to their mail. 
  • The existence of an internally organized group comprised of staff at various levels within FCC Hazelton facilities that are partially responsible for the misconduct at the facility, known as the “Good Ol’ Boys Club”. 

The letter asks for information regarding the investigation of abuse by no later than October 3rd, including a list of abuse allegations at FCC Hazelton since 2013, a list of FCC Hazelton staff members who have been promoted or transferred while under investigation for inmate abuse, copies of all documents regarding crimes and transfers of BOP staff who have been charged with a crime at FCC since 2013, and the number of employees who continued to work with inmates while under investigation for inmate abuse

WBOY-TV in Fairmont reported that it asked the BOP for a statement and got this:

The Federal Bureau of Prisons responds directly to Members of Congress and their staff.  Out of respect and deference to Members, we do not share our Congressional correspondence with the media. 

Unbelievable220811That’s rich. According to the Judiciary Committee, the BOP doesn’t even share its Congressional correspondence with Congress.

One would think that the BOP cannot ignore this letter.  But then, no one’s lost money yet betting against Bureau of Prisons transparency.

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

Letter to Merrick Garland and Colette Peters from Sen Richard Durbin et al. (September 12, 2023)

WBOY-TV, Whistleblower alleges staff are covering up abuse, escapes at FCC Hazelton (September 13, 2023)

– Thomas L. Root

Director Peters, It’s Not Like You Weren’t Warned – Update for September 15, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TOLD YOU SO

shipwreck230915When Bureau of Prisons Director Colette Peters appeared for her first oversight hearing with the Senate Committee on the Judiciary about 51 weeks ago, it was an hour and a half on the Love Boat. But it’s now clear after the beating she suffered at the Committee’s hands two days ago that her ship is taking on water and the pumps can’t keep up.

Last October, I cited the friendly advice Director Peters received from the Committee about questions from legislators. I wrote

Finally, something even Peters acknowledged to be a cautionary tale: Sens Grassley, Cotton and Jon Ossoff (D-GA) all complained to her that various letters and requests for information they have sent to the BOP have gone unanswered, sometimes for years. This was a failing that former BOP Director Carvajal was beaten up with during his tenure. Not answering the mail from pesky Senators and Representatives may seem like a small thing to BOP management – it certainly has gone on for years – but if Peters wants the Judiciary Committee lovefest to go on, she should not let her staff anger Congress over something so easily corrected. Carvajal was regularly lambasted for similar failings. Peters should profit from his example.

Alas, Director Peters does not appear to be a regular reader of this blog, because she chose not to profit. The results were predictable: When she sat in front of the Committee two days ago, Peters was lambasted by friend and foe alike for a continuation of the BOP’s sorry habit of secrecy. Written questions submitted by Committee members a year ago remain unanswered, and all she could offer the senators was a milquetoast explanation that those answers must go through a “review process” and that she was as frustrated as the Committee was.

C’mon, Colette. Who’s “reviewing” these questions, most of which call for a simple factual response? (Examples from Wednesday: How many males-turned-transgender-females have been placed in federal women’s prisons? How many COs are employed by the BOP?) Providing these answers is not rocket surgery. The numbers are the numbers. How much ‘review’ of the numbers is needed?

knifegunB170404The hearing was painful. Many of the senators seemed more concerned with scoring political points on crime and LGBTQ issues than about issues broadly important to the BOP. And Director Peters seemed woefully unprepared, relying on a series of “talking points” unresponsive to the questions she should have expected. It’s as if she brought a knife to a gunfight.

The Associated Press wrote that Peters

was scolded Wednesday by members of the Senate Judiciary Committee who say her lack of transparency is hampering their ability to help fix the agency, which has long been plagued by staffing shortages, chronic violence and other problems. Senators complained that Colette Peters appears to have reneged on promises she made when she took the job last year that she’d be candid and open with lawmakers, and that ‘the buck stops’ with her for turning the troubled agency around.

After an hour and a half of senatorial belly-aching about being ghosted by Director Peters, Sen. Richard Durbin (D-IL), chairman of the Committee and as much a fan of Director Peters as he was a nemesis to former Director Carvajal, admonished her, “Senators take it very personally when you don’t answer their questions. More than almost any other thing that I would recommend I’d make that a high priority.”

Committee questions careened from the sublime to the absurd. Durbin observed that the Committee largely agreed that the BOP “needs significantly more funding” for staffing and infrastructure needs, including a $2 billion maintenance backlog. Peters told the Committee the BOP was studying how to reduce reliance on restrictive housing – read “solitary confinement” – and studying how other prison systems handle the issue.

cotton171204She also reported that the BOP had increased new hires by 60% and reduced quitting by 20%. Nevertheless, the agency still only has 13,000 correctional officers where 20,000 are needed, and it still relies on “augmentation,” using non-COs to fill CO shifts. Sen. Tom Cotton (R-AR), a professional inmate-hater who wants to increase inmate populations while excoriating the BOP for being unable to manage the load with too little money and too few staff, complained that Peters had hired too few COs (the “meat eaters,” he called them) while bringing on too many non-COs (whom he derisively called “leaf eaters”).

Cotton invited Peters to accompany him on an inspection of FCC Forrest City, an invitation she accepted with a pained smile. Spending a day with Tom Cotton, the man who tried to blow up the First Step Act… almost as nice as a root canal without novacaine.

Other senators complained that the Mexican cartels might be obtaining blueprints for BOP facilities, that transgender females were being placed in BOP female facilities and sexually terrorizing female inmates (with very little said about BOP staff sexually terrorizing female inmates), and that the BOP decided that people on CARES Act home confinement were allowed to stay home (a decision made by the Dept of Justice, not the BOP).

Sen. Sheldon Whitehouse (D-RI) invented a new word: “recidivation.” Sen. Ted Cruz (R-TX) chastised Peters for not having the facts he wanted to hear at her fingertips. Sen. Lindsey Graham (R-SC) led a Republican charge against BOP transgender policy, with more than one senator suggesting that transgender inmates number in the thousands. He also became testy when Peters failed to provide specifics about how the BOP is combatting the use of contraband phones by inmates.

Sens. Amy Klobuchar (D-MN), Thom Tillis (R-NC) and Jon Ossoff (D-GA) asked pointed but thoughtful questions. Ossoff suggested what many have long believed, that the institution audits required by the Prison Rape Elimination Act are meaningless paper exercises. As for BOP staffing, Tillis candidly observed that hiring more COs “is our job as well as yours.”

Ossoff perhaps best summarized the flavor of the hearing when he warned Peters: “You’ve now been in the post for about a year and Congress expects results.”

Senate Committee on the Judiciary, Oversight of the Federal Bureau of Prisons (September 13, 2023)

Associated Press, Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency (September 13, 2023)

– Thomas L. Root

Ask Not For Whom The Time Tolls – Update for September 14, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BEATING FEET

outtahere230914The fugitive tolling doctrine holds that if you are a fugitive – say as an escapee, or you jump bond – your sentence doesn’t run while you’re running. You’ve done 6 years of an 8-year sentence when you go on a furlough and don’t come back. When you’re finally caught, you still have those final two years to do (not to mention a ton of additional time for the escape).

Federal sentencing law provides not only for prison, but also for a term of what is known as “supervised release” after the sentence ends. During the term of supervised release – usually three to five years long – the former inmate is expected to keep a job, follow a list of rules imposed by the court as well as the often random and irrational diktats of a probation officer, and fill out monthly reports that are little more than traps for the unwary.

supervisedleash181107Examples, you ask? A standard condition of supervised release – imposed by the court when a defendant is sentenced – is that the person on supervised release not associate with any person convicted of a felony, unless granted permission to do so by the probation officer.  The monthly report a defendant is required to file, however, makes the sweeping inquiry, “Did you have any contact with anyone having a criminal record?”

Given that traffic offenses are mostly criminal misdemeanors, albeit minor, a defendant can hardly step outside of the house without having contact with someone with a criminal record. ‘Nitpicking’? you say. Maybe, but false statements on the form can result in the Probation Officer filing a violation report with the court that can result in additional prison time. Nitpicking under threat of imprisonment is serious business.

Statistics show that about one out of five people on supervised release are ‘violated,’ with most violations falling into the Grade C-level of violations, the least serious category reserved for things such as, say, false statements in the monthly report.

ghosting230914Jim Talley didn’t much like those odds, much less the irritation of regular meetings with his Probation Officer and filing monthly reports. After a little more than two years of supervised release, he had had enough. He simply stopped seeing his Probation Officer, stopped filing reports, and even moved without giving his PO the new address. In modern terminology,  the Probation Office got ghosted worse than the other side of a blind date from hell.

Right before his supervised release was to expire, the PO filed a violation warrant with the court.  The warrant never caught up to Jim, because – as noted – he had moved without leaving the Probation Office a forwarding address.

A year after his supervised release expired, Jim was charged with Florida domestic battery. When he got arrested, he was served with the supervised release violation. Before his hearing, the PO amended Jim’s plain vanilla failure-to-report charges to include the much more serious allegation that Jim had committed new criminal conduct by being accused of domestic battery (a Grade A violation that will buy you a boatload of more prison time).

The district court found him guilty of the supervised release infractions, and gave him an extra 18 months. Last week, the 11th Circuit vacated the sentence and sent the case back.

unsupervised211118The issue was whether the district court could punish Jimbo for new criminal conduct for a crime that happened after his supervised release expired. Applying a judicially crafted “fugitive tolling doctrine” for supervised release, the government argued that a sentencing court may toll an offender’s term of supervised release during any period that he or she evades supervision. Because Jimmy was a fugitive from 2020 until his 2022 battery arrest, the government contended, his term of supervision was on hold until he was caught rather than expiring in 2021 as scheduled.

The 11th noted that the circuits are divided over the application of “fugitive tolling” to terms of supervised release, with the 2nd, 3rd, 4th and 9th applying the doctrine. But the 11th agreed with the 1st Circuit that there is no such animal.

tolls230914The justifications for fugitive tolling in other contexts, the Circuit observed — such as prison escapes — do not apply to the context of supervised release. The fugitive tolling doctrine is meant to ensure that an original sentence is served, not to increase a sentence’s length. Endorsing the government’s theory of tolling, the 11th said, “would require us to hold that the supervised release clock stopped whenever Talley first absconded, but the sentence itself (i.e., the conditions of supervised release) remained in effect until he was found. But it makes very little sense to conclude that Talley was not subject to his supervised release conditions in May 2022 for the purposes of fugitive tolling, while simultaneously concluding that he violated his conditions of supervision at that time. As we have recognized in another context, ‘a supervised release order cannot simultaneously be suspended and actively in effect’.”

The case was remanded for resentencing on Jim’s failure-to-report violations but not the new criminal conduct battery complaint.

U.S. Probation Office, Standard Monthly Report form

U.S. Sentencing Commission, Federal Probation and Supervised Release Violations (July 28, 2020)

United States v. Talley, Case No 22-13921, 2023 U.S. App. LEXIS 23800 (11th Cir., September 7, 2023)

– Thomas L. Root

I’m Just Here To Dust and Vacuum – Update for September 13, 2023

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THE CLEANING LADY

When the authorities busted a methamphetamine house, they found Maria De La Cruz Nava hiding in the master bedroom behind a locked door with ringleader Gus Guzman and one other person. Other persons were present in the kitchen as well as outside the house, which was dirty, held few furnishings, and contained contraband.

cleaningA230913

Maria explained that she was just the cleaning lady. When an officer mentioned that drugs and guns were all over the house, Maria shrugged, “They all used drugs.”

Maria and Gus were charged with a drug trafficking conspiracy, an 18 USC § 924(c) charge and a money laundering charge. After the jury convicted her, she filed a motion under Federal Rule of Criminal Procedure 29 motion for acquittal and an FRCrimP 33 motion for a new trial. The district court denied the Rule 29 motion, finding that her conviction as a co-conspirator was supported by the record because (1) she was barricaded in a bedroom with Gus; (2) meth was found in the bathroom attached to the bedroom; ( (3) a knife was recovered from a “purse” in the kitchen, and Maria was the only female present; (4) meth was found next to the purse; (5) drug paraphernalia was scattered throughout the house; (6) the expert testimony admitted as to the varying roles of individuals involved in a drug conspiracy; and (7) witnesses placed Maria at the house on other occasions screen.

cleaningB230913Last week, the 8th Circuit reversed. There was no doubt that the evidence showed a conspiracy, the Circuit ruled, but “while our precedent recognizes that proof a defendant joined a conspiracy may be shown entirely through circumstantial evidence… mere association or acquaintance with a drug dealer and mere presence at the location of the crime are insufficient to establish guilt on a conspiracy charge. Furthermore, we will not lightly impute constructive possession of drugs or other contraband to one found in another’s house.”

The 8th noted that

Maria did not admit involvement in the conspiracy, there is no evidence in the record that she was ever in physical possession of either methamphetamine or drug proceeds, and no… witness testified that Maria was involved in drug activity. We are also unable to find evidence that she acted as a courier, facilitated any drug activity, directed any of the conspiracy’s activities, or acted in any manner to advance the illegal end of the conspiracy. The government argues that because Maria was the only woman in the house, a reasonable jury could infer that the bag in the kitchen was a purse and belonged to her. But nothing in the bag demonstrates or even suggests that it was a purse that belonged to a woman. There is no ornamentation on the bag. There were no feminine personal items in the bag. There was no identifying information tying it to Maria. The nondescript, plain bag contained only drug trafficking-related items and is just the sort of storage container that a drug trafficker might use to conceal items without calling attention to himself or herself.

Nevertheless, the Circuit ruled, “while evidence in the record of Maria’s knowledge of and participation in a drug trafficking conspiracy is scant, it is a high burden to overturn a jury’s verdict. We cannot say on this record, although a close call, that no reasonable jury could have found her guilty beyond a reasonable doubt.”

PrintMary’s FRCrimP 33 motion for a new trial was another matter. In its order, the district court recited the correct standard for a Rule 33 motion but “it conducted no analysis specific to Maria’s new trial motion,” the Circuit said. Instead, the district court disposed of the motion with one sentence throwaway that said “sufficient evidence was presented against Defendant such that there was not a miscarriage of justice in the jury finding her guilty of Counts 1-3… There is no indication that the court weighed the evidence anew. Likewise, we are unable to determine whether the district court disbelieved any of the witnesses. Given the lack of any analysis, we are unable to discern whether the district court incorrectly applied the standard applicable under Rule 29 to the new trial request or whether it applied the proper, broader standard applicable under Rule 33… We remand to the district court for consideration of Maria’s motion for a new trial as it relates to the drug trafficking conspiracy and related firearms count.”

As to the money laundering conspiracy, the Circuit reversed Maria’s conviction outright. “There is no evidence that she acted in a manner to conceal the nature, source, location, ownership, or control of the conspiracy’s proceeds.”

United States v. De La Cruz Nava, Case No. 22-2914, 2023 U.S. App. LEXIS 23601 (8th Cir. September. 6, 2023)

– Thomas L. Root

Congress Is Back In Town… Little Has Changed – Update for September 12, 2023

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THEY’RE B-A-A-A-CK

Congress returned last week after its long August recess, ready to dig in and work on anything other than criminal justice reform.

equal220812

Last week, the right-of-center Americans For Tax Reform wrote all members of Congress urging passage of the EQUAL Act (S.524, H.R. 1062). Anti-tax advocate Grover Norquist argued that the crack/powder sentencing “unjustified disparity has resulted in the imprisonment of people who pose no greater threat than their counterparts convicted of cocaine offenses for far greater periods.”

Norquist argued that “it is a core, taxpayer-funded, government role to protect citizens from crime, and manage the criminal justice system. Taxpayers, and all Americans who cherish individual liberty, should take an interest that the criminal justice system is efficient and effective at protecting public safety, upholding the rule of law and property rights, while respecting the constitutional rights of citizens. Where there are failures, conservatives should work to fix the issue, just as we do in other areas of government.”

The Illinois Times last week reported that Sen Richard Durbin (D-IL), chair of the Judiciary Committee, said the EQUAL Act has failed to come up for a Committee vote “because of the opposition of a Republican member of the committee, whom he declined to identify.”

“One Republican wouldn’t go for 1-to-1, and we deal with consensus on the committee,” Durbin said. “I have him down lower – substantially lower than 18-to-1 – and I’m trying to get the other side that wants it to be 1-to-1 to accept a different figure. But that’s where we’ve been stuck for over a year. I’m going to do my best to get this moving.”

The unidentified Republican is undoubtedly Sen Charles Grassley (R-IA), ranking Republican on the Committee and co-sponsor with Durbin of a number of reform measures, most notably the First Step Act. Last December, Grassley’s proposal of 2.5-1 and nonretroactivity except with Dept of Justice consent in the so-called SMART Cocaine Sentencing Act (S.4116) killed EQUAL’s passage in the last Congress. Now, 9 months later, nothing seems to have changed.

Meanwhile, in the wake of last week’s recommendation by the Dept of Health and Human Services that marijuana be rescheduled from a Schedule I to a Schedule III drug, the White House last week asserted that President Biden has “always supported the legalization of marijuana for medical purposes,” she said. “He’s been very clear about that, where appropriate, consistent with medical and scientific evidence.

potscooby180713Marijuana Moment noted that “it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator, he championed several pieces of legislation that ramped up the war on drugs.” Nevertheless, “if DEA goes along with HHS’s Schedule III recommendation, that would represent a major shift in federal marijuana policy, with an acknowledgment that cannabis is not a drug of high abuse potential and no medical utility.”

On the other hand, The Hill reported that advocates and policy experts say rescheduling marijuana under the Controlled Substances Act does not address the plethora of racial justice issues caused by current law.

“Rescheduling doesn’t address … the harm to marginalized communities,” said Natacha Andrews, executive director for the National Association of Black Cannabis Lawyers. “It doesn’t address the over-policing, it doesn’t address the immigration issues, it doesn’t address the access to federal services, and it’s not in alignment with what 38 states have done to regulate and legalize.”

“My initial reaction is that this is less than what the Biden administration promised specifically,” Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, told The Hill.

MSNBC reported, “To be sure, moving marijuana to Schedule III wouldn’t dismantle the drug war or solve the host of problems needlessly caused by prohibition. Descheduling, or removing the plant from the government’s list of controlled substances, would make more sense and better align with Biden’s stated criminal justice views. Still, rescheduling would be historic, if only due to the historic stupidity that has kept cannabis on Schedule I to date.”

Americans for Tax Reform, Support for the EQUAL Act (September 8, 2023)

Illinois Times, Unjust Sentencing (September 7, 2023)

Marijuana Moment, Biden Has ‘Always Supported The Legalization Of Marijuana For Medical Purposes,’ White House Says Amid Rescheduling Recommendation (September 4, 2023)

The Hill, Marijuana rescheduling falls short of expectations on Biden (September 8, 2023)

MSNBC, What the federal ‘rescheduling’ of cannabis would (and wouldn’t) mean (September 4, 2023)

– Thomas L. Root

Socrates Was Right About Ineffective Assistance of Counsel – Update for September 11, 2023

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COUNSEL’S INVESTIGATION IS A GOOD IDEA, 3RD CIRCUIT SAYS

Socrates is reputed to have said that “the unexamined life is not worth living.” The 3rd Circuit reminded us last week that an attorney’s unexamined defense strategy is not worth crediting.

knifegunB170404Two guys, Ron Rogers and Demetrius Hayes, got into a shootout on a Philadelphia street. Neither one hit the other, but Ron’s friend Bill Green got hit by a stray bullet from Ron’s gun. He died, and both Ron and Demetrius were charged by the Commonwealth with murder.

Demetrius got tried first. One witness, Myra Summers, said she wasn’t sure who had fired first. Another witness, Tyrone Singleton – who was Demetrius’s friend – said Ron fired first. Demetrius was acquitted.

A week later, Ron went to trial. Now, Ty’s testimony took an abrupt turn, naming Demetrius — not Ron —as the first shooter. Without pointing out Tyrone’s flip, the prosecutor continued questioning Singleton for a bit before the trial judge ended proceedings early for the day. After excusing the jury, the judge admonished Ty for his inconsistent testimony, saying he committed “perjury on the record.” The judge warned Tyrone that if he was “playing some little game here,” the judge would ensure he “receive a maximum consecutive sentence” for perjury. The judge encouraged him to “[d]o some long hard thinking” before resuming his testimony, because if “you say that [Demetrius shot first] again, it is perjury.”

Through this harangue, Ron’s lawyer raised no objection.

Unsurprisingly, Tyrone got it. The next day, he suddenly remembered that Ron – not Demetrius – shot first. Ty explained he “made a mistake” the day before, chalking the error up to nervousness. Again, Ron’s lawyer said nothing. In fact, not only did he not object, he didn’t even bother to cross-examine Tyrone about the changed testimony. Ron was convicted of third-degree murder and sentenced to 16 to 32 years in prison.

Ron claimed ineffective assistance of counsel in a state post-conviction claim. When he lost, he took it to federal court, where a district judge held that the state court conclusion that Ron’s lawyer was not ineffective made perfect sense.

Last week the 3rd Circuit disagreed, and granted Ron’s 28 USC § 2254 motion. It rejected the claim of Ron’s attorney that “he had no basis for objecting to the admonishment because regardless of how Tyrone testified, his testimony would not have been determinative because he lacked credibility.” Counsel said his strategy was to rely on Myra Summers, who counsel said was the more credible witness despite the fact she had testified the week before that she didn’t see who shot first.

The 3rd Circuit complained that Ron’s counsel had neither seen nor read Myra’s testimony the week before. The Circuit observed that an attorney’s duty to test the government’s case requires that “defense counsel has done some investigation into the prosecution’s case and into various defense strategies”. The constitutional standard for ineffective assistance – established almost 40 years ago in Strickland v, Washington – is the same whether counsel screws up in a state or federal criminal proceeding. Here, the 3rd ruled, the state courts had unreasonably applied Strickland when they found Ron’s counsel’s performance adequate, “having failed to properly consider prevailing professional standards.”

dumblawyer180108And that wasn’t all, the Circuit said. Pennsylvania law firmly established that a trial judge admonishing a witness about perjury if he or she persisted was reversible error. The witness says what the witness says, and any such threat in the middle of testimony puts “pressure on a witness to testify in a particular way.” For Ron’s lawyer to believe that the trial judge’s threats against witness Tyrone were permissible was deficient performance, the 3rd said. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”

liar170209“So too,” the appeals court said, with counsel’s later failure to cross-examine Ty regarding his changed testimony. “Counsel characterized Singleton as a liar, trying to help his buddy out, whose testimony would not be determinative of the outcome of this case, Not so,” the 3rd Circuit said. “Singleton was the only witness to ever claim Ron shot first — the ultimate issue in the case. And Singleton’s pre-admonishment testimony to the contrary, which aligned with Myra Summer’s original eyewitness statement, would benefit the defense by casting doubt on Singleton’s earlier implication of Rogers… Counsel’s performance [is] deficient when he, among other failures, neglected to “adapt his argument to the testimony in evidence.”

But winning an ineffective assistance of claim also requires a finding of prejudice. The state court found Ron had not shown “that but for the act or omission in question, the outcome of the proceedings would have been different.” But Strickland is clear that the standard is just “a reasonable probability that . . . the result of the proceeding would have been different.” By requiring Ron to prove the outcome would have changed, the state court applied a standard “contrary to… clearly established Federal law, as determined by the Supreme Court.”

Rogers v. Superintendent Greene SCI, Case No. 21-2601, 2023 USApp. LEXIS 23748 (3d Cir. Sep. 7, 2023)

– Thomas L. Root

Twenty Rocky Years of PREA – Update for September 8, 2023

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BITTERSWEET ANNIVERSARY FOR PREA

PREAAudit211014Bureau of Prisons Director Colette Peters last week commemorated the 20th anniversary of the Prison Rape Elimination Act in a statement that acknowledged “our dedicated employees who have worked diligently over the last two decades to uphold the letter of the law” while she hinted at PREA’s rocky ride with the BOP culture over the past two decades.

“The culture of the past which tolerated abuse and failed to meet the promises of PREA,” she warned, “will be met with swift justice. All individuals in our custody have a right to be physically, mentally, and sexually safe.”

Putting an ugly asterisk on her statement, former BOP employee Gregory Barrett, described by the Lexington Herald Leader as a “senior officer at a federal prison in Lexington” (the FMC Lexington minimum security prison camp for women) pled guilty to sexual abuse of an inmate multiple times between June and July 2022, according to the plea agreement. Last October, Barrett threatened and intimidated an inmate witness to the crimes, telling her to “keep her mouth shut” and suggesting retaliation if she reported the crime.

sexualassault211014Washington Post columnist George Will, writing about the doctrine of qualified immunity a week ago, said, “Americans would gag if they had an inkling of what occurs, unreported, in prisons. Americans should, however, be sickened when judges, with hairsplitting misapplications of qualified immunity, openly abet governmental malfeasance that allows prison violence. When prisoners depend on protection by governments that cannot be held accountable for culpable indifference, mayhem proliferates, lethally.”

BOP, PREA 20-Year Anniversary (September 1, 2023)

Lexington, Kentucky, Herald Leader, Former federal prison officer in Lexington pleads guilty to sexually abusing an inmate (August 29, 2023)

Washington Post, Four prison murders lead to a sickening ruling on ‘qualified immunity’ (August 23, 2023)

– Thomas L. Root

Biden FDA Delivers On Pot Rescheduling; Now for the DEA – Update for September 7, 2023

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FOOD AND DRUG ADMINISTRATION PROPOSES DROPPING MARIJUANA TO SCHEDULE III

marijuana221111The Dept of Health and Human Services’ Food and Drug Administration last week recommended that the Drug Enforcement Administration significantly loosen federal restrictions on marijuana, yet stopping short of proposing that pot be removed completely from the Controlled Substances Act.

HHS Assistant Secretary Rachel Levine wrote in a letter to the DEA that the FDA wants the drug moved from Schedule I to Schedule III under the CSA. As part of the review process, an HHS spokesperson told Politico last week, “HHS conducted a scientific and medical evaluation for consideration by DEA. DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review.”

President Biden rolled out new initiatives on marijuana last October, pardoning all prior federal simple possession offenses (none of whom was in federal prison at the time) and asking HHS and the Attorney General to review how marijuana is scheduled based on its medical use. While the DEA is not required to follow HHS’s recommendation, it is unlikely that the agency will buck the President, who has made this a White House priority.

Reclassification is a step short of legalizing marijuana entirely, but it would mark a critical shift away from marijuana’s status as a Schedule I substance. Schedule I includes drugs with high risk of abuse that have no legitimate purpose, like heroin, LSD and ecstasy. Schedule III substances, such as ketamine, are seen as less dangerous and can be obtained legally with a prescription.

mario170628The effect of dropping marijuana to Schedule III might be a Sentencing Commission rewrite of USSG § 2D1.1 on marijuana offenses. Changing statutory minimums for marijuana set out in 21 USC § 841(b)(1), however, would require action by Congress.

DEA review will be complete within the next year.

Bloomberg, US Health Officials Urge Moving Pot to Lower-Risk Tier (August 30, 2023)

Politico, Slightly higher times: Biden administration moves to loosen weed restrictions (August 30, 2023)

– Thomas L. Root

Compassionate Release Denial Too Short on Detail, 5th Circuit Says – Update for September 6, 2023

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5th CIRCUIT SAYS ‘HELP US OUT A LITTLE HERE’ ON COMPASSIONATE RELEASE DENIAL

stanford230904When Allen Stanford, one of America’s leading fraudsters, applied for compassionate release under 18 USC § 3582(c)(1)(A) for a third time, his district court was tiring of him just a bit. The judge denied Allen’s latest attempt at a legal jailbreak  with a terse denial: “[H]aving considered the motion and the applicable law, the Court determines that the foregoing motion should be denied.”

In an August 17 order, the 5th Circuit wanted to give the judge the benefit of the doubt. “[T]he same district judge has ably presided over every chapter of the Stanford saga, and has previously found that Stanford ‘perpetrated one of the most egregious criminal frauds ever presented to a trial jury in federal court’,” the Circuit said, suggesting the district judge probably made a bulletproof decision in denying Allen’s motion and telling him to work toward his release date on March 31, 2103, a mere 79-1/2 years from now.

Nevertheless, the process matters, the 5th seemed to say:

puzzled201223[T]he district court’s order does not tell us that the court based its decision on the § 3553(a) factors. It states only that the court ‘considered [Stanford’s] motion and the applicable law’ and determined that the motion should be denied. We therefore have no reliable indication of the reason for the court’s decision to deny relief. We do not know whether the court denied Stanford’s motion because it concluded—despite new arguments and allegedly new facts—that the § 3553(a) factors still do not warrant early release, or because it concluded that Stanford’s situation is insufficiently ‘extraordinary and compelling,’ or both… Stanford’s third compassionate-release motion may have little chance of success. But judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.

The Circuit remanded the case “for the district court to explain its reasons for denial.”

United States v. Stanford, Case No. 22-20388, 2023 U.S. App. LEXIS 21624 (5th Cir. August 17, 2023)

– Thomas L. Root

8th Circuit En Banc Denial Adds Fuel to Felon-in-Possession Debate – Update for September 5, 2023

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STRIDENT 8TH CIRCUIT DISSENT CALLS 18 USC § 922(g) UNCONSTITUTIONAL

gunb160201Since the Supreme Court’s New York State Rifle & Pistol Ass’n, Inc. v. Bruen decision over a year ago, the constitutionality of just about every federal limitation on gun possession (short of machine guns and howitzers) has been thrown into question. The most important limitation to most of us is 18 USC § 922(g)(1), the messy statute prohibiting some convicted felons (but not all of them, see 18 USC § 921(a)(20) for the confusing details) from possessing some guns or all ammo.

Some appeals courts have ruled that prohibiting the users of controlled substances from possessing guns is unconstitutional. One District Court has held that denying gun possession to someone under indictment is unconstitutional, a case the government has appealed to the 4th Circuit. The 5th Circuit has held that denying a gun to someone subject to a domestic protection order is unconstitutional, a case now before the Supreme Court in United States v. Rahimi.

The most-watched case currently is the 3rd Circuit’s Range v. Attorney General. After a three-judge panel summarily upheld the constitutionality of § 922(g)(1)’s limitation that prevented a guy convicted of a minor fraud three decades ago from having a gun, the Circuit issued an en banc decision last June resoundingly reversing that position. The rehearing decision held that § 922(g)(1) was unconstitutional as applied to a nonviolent guy like Bryan Range.

Two weeks ago, the government got the Supreme Court to extend the time to seek certiorari on Range until October 5.

gun160718You may recall that a week before Range was handed down in June, a three-judge panel in the 8th Circuit rejected defendant Joe Jackson’s claim that “he had a constitutional right under the 2nd Amendment to possess a firearm as a convicted felon.” Joe argued that the only test consistent with the 2nd Amendment was whether the defendant was dangerous to the public, not whether he or she was a felon. The panel disagreed, ruling that status as a felon was enough: “Legislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms,” the Jackson panel wrote. “Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1)and the prohibition on possession of firearms by felons.”

Last week, the 8th Circuit denied Joe’s petition for en banc rehearing but did so with a strong dissent by four of the appellate judges. The dissenters complained that the panel decision gives “second-class” treatment to the 2nd Amendment and “creates a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened.” They argued that the nation’s historical tradition of firearms control was consistent with a focus on dangerousness, not on felon status:

Disarmament is about dangerousness, not virtue. We know that because colonial and post-ratification gun laws targeted rebellion and insurrection, not criminality. There have always been criminals, but there is no suggestion in any “historical analogue” that criminality alone, unaccompanied by dangerousness, was reason enough to disarm someone. And history certainly does not support Jackson’s unbending rule that felons can never win an as-applied challenge, no matter how non-violent their crimes may be or how long ago they happened.

guns200304Given that the government will seek Supreme Court review of Range (and the government usually gets certiorari when it asks for it) and the 8th Circuit’s Jackson case and Range are diametrically opposed, a Supreme Court ruling on whether § 922(g)(1) is constitutional as applied to nonviolent felons within the next year seems more certain than ever.

United States v. Jackson, Case No. 22-2870, 2023 USApp LEXIS 22991 (8th Cir. Aug. 30, 2023)

United States v. Jackson, 69 F.4th 495 (8th Cir. 2023)

Range v. Attorney General of the United States, 69 F.4th 96 (3d Cir. 2023)

Order, Attorney General v. Range, Case No. 23A140 (S.Ct., Aug 25, 2023)

Sentencing Law and Policy, Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment (August 31, 2023)

– Thomas L. Root