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(Note: We updated this post on July 23, 2016)

THE GOOD, THE BAD, AND THE UGLY!

Two Freedom of Information Act decisions of particular interest to our readers were handed down in the past few days, one good for inmates and one bad.  And a case filed in D.C. Federal Court accuses the FBI of a FOIA practice that;s just plain ugly.

The Good: A week ago, the 6th Circuit reversed its 20-year holding that arrestees’ mugshots are discoverable by the news media and public under FOIA. The Court summarized its holding as follows: “In 1996, we held that FOIA required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I.”

The holding is especially important because it affected arrestees around the country. No matter what other circuits said, if a newspaper in Los Angeles, for instance, needed the booking photo of Dennis Defendant – who was being held in San Diego – the reporters would just call a buddy at the Detroit News (or anywhere else in the 6th Circuit). The Detroit reporter would request the picture, and because any FOIA action to get it could be filed in the 6th Circuit, the San Diego cops would send the photo.

No more. The 6th Circuit is now aligned with other federal circuits. This means that reporters in Detroit doing favors for their friends elsewhere in America can no longer look forward to that bottle of single malt arriving every Christmas.

The Bad: The National Association of Criminal Defense Lawyers asked the DOJ for a copy of the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by DOJ to guide federal prosecutors in the practice of discovery in criminal prosecutions containing advice about conducting discovery, including guidance about the obligation to provide discovery to defendants. It would be a treasure trove for defense attorneys, like having the other team’s playbook before the game.

Naturally, DOJ refused to disclose the Blue Book, invoking FOIA Exemption 5, which exempts from disclosure agency records that would be privileged from discovery in a lawsuit with the agency. DOJ said the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by and for attorneys in anticipation of litigation. The district court agreed . Last week, the D.C. Circuit did, too.

Under Exemption 5, agencies may withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Exemption 5 allows the government to withhold records under at least three privileges: the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege.

Here, the Court said, release would offend the attorney work-product privilege. The privilege provides a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories, the Court said. “Protecting attorney work product from disclosure prevents attorneys from litigating “on wits borrowed from the adversary.”

In ascertaining whether a document is covered by the work-product privilege, the Court applied a “‘because of’ test, asking whether, in light of the nature of the document and facts in the case, the document “can fairly be said to have been prepared or obtained because of the prospect of litigation.” For that standard to be met, the attorney who created the document must have “had a subjective belief that litigation was a real possibility,” and that subjective belief must have been “objectively reasonable.”

The Blue Book describes the nature and scope of federal prosecutors’ discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules of Criminal Procedure. It has nine chapters, written by DOJ prosecutors with expertise in a wide range of discovery-related topics, addressing subjects including: Federal Rule of Criminal Procedure 16, regarding discovery; the government’s obligations to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); disclosure duties arising from the Jencks Act, 18 U.S.C. § 3500; items protected from disclosure; and the use of protective orders and ex parte and in camera submissions in discovery. The Blue Book contains confidential legal analysis and strategies to support the Government’s investigations and prosecutions, and is nothing less than an internal manual containing litigation strategies.

Thus, the Court concluded, the Blue Book was “created in anticipation of reasonably foreseeable litigation,” namely, federal criminal prosecutions, and does not have to be disclosed.

The Ugly:  A lawsuit filed recently in the U.S. District Court for the District of Columbia claims the FBI uses outdated information technology systems to deliberately block FOIA requests. A Massachusetts Institute of Technology security researcher claims the agency deliberately runs FOIA searches through a decades-old system – knowing the searches will fail to produce any results.

“The FBI will do anything in their power to maintain functional immunity from FOIA requests. They’re outright hostile to FOIA,” the researcher told the Wall Street Journal. He says instead of full-text search, the agency uses an antiquated index system similar to a library card catalogue.

The FBI denies the allegation.

Detroit Free Press v. Dept. of Justice, Case No. 14-1670                           (6th Cir. July 14, 2016)

Nat’l Ass’n of Criminal Defense Attorneys v. Dept. of Justice,                  Case No. 15-5051 (D.C. Cir. July 19, 2016)

FBI Blocking FOIA Requests With Aging IT, Lawsuit Alleges, Wall Street Journal (July 22, 2016)

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DISABLED BEHIND BARS

America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure, according to a study on the disabled in America’s prisons issued earlier this week.

The report, Disabled Behind Bars – The Mass Incarceration of People With Disabilities in America’s Jails and Prisons, argues “the crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.”

Over 30% of prison inmates and about 40% of jail detainees suffer from hearing, vision, cognitive, ambulatory, self-care, or independent living disabilities, the report states. “People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the non-incarcerated population.”

The report also found a dearth of support for disabled prisoners, who are “often deprived of necessary medical care, as well as needed supports, services, and accommodations.” The report claims that this imbalance of needs and services exists despite long-standing federal disability rights laws such as the Americans with Disabilities Act and other statutes “that mandate equal access to programs, services, and activities for all people with disabilities in custody.”

The study called for a number of changes in the approach to disabled inmates, including establishing of an Office of Disability within the Department of Justice, more diversion of the disabled into community-based corrections, and enhancing training and resources within prisons to ensure compliance with the Americans with Disabilities Act.

Disabled Behind Bars was written by Rebecca Vallas and published by The Center for American Progress, a liberal think tank in Washington, D.C.

Center for American Progress, Disabled Behind Bars – The Mass Incarceration of People With Disabilities in America’s Jails and Prisons (July 2016)

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BROKEN RECORD

We don’t want to seem like a broken record, but the appellate courts keep cranking out the second-and-successive denials, and every one of them seems to contain a different nugget of interest.

William Hunt sought permission from the 11th Circuit to file a second-and-successive 2255 motion under Johnson v. United States, arguing that his sentence under 18 U.S.C. § 924(c) was infirm because the crime in which he was using a handgun – armed bank robbery – is no longer a crime of violence. This seems a stretch to us, but Will only asks permission to make the argument to a district court that his Guidelines were improperly enhanced, so this is probably not the time to punch holes in his case on the merits.

The 11th Circuit denied Will Hunt’s second-and-successive application yesterday, noting that currently circuit precedent held that his claim was meritless. However, the Court noted that while its Matchett decision “determined that the void-for-vagueness doctrine does not apply to advisory Guidelines… we note that the Supreme Court recently granted certiorari in Beckles v. United States… which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.”

Thus, the Circuit denied Will Hunt’s second-and-successive application “without prejudice, with leave to file another application after the Supreme Court’s decision in Beckles.”

Compare this treatment to the peremptory denial of Gary Baptiste last week.

In re Hunt, Case No. 16-14756-J (11th Cir. July 18, 2016)

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HE’S BACK, TOO

A few days ago, we wrote about Gary Baptiste, whom the 11th Circuit said had returned to the well once too often seeking permission to file a second-and-successive 2255 motion. Today, he has a fellow traveler – John Dawkins, who having been convicted of bank robbery, applied to file a second-and-successive 2255 in the 7th Circuit.

John was challenging whether his predicate Illinois burglary conviction was a crime of violence under the Guidelines § 4B1.2(b) “career offender” definition in the wake of Johnson v. United States. The 7th Circuit denied the application last January, holding that the Illinois burglary was a generic burglary of a dwelling, which is enumerated as a crime of violence in the sentencing guidelines.

After the Supreme Court’s June decision in Mathis v. United States, Dawkins applied for leave to file a second-and-successive again, this time arguing that the Illinois burglary was no longer a generic burglary, and – of course – was not otherwise violent under Johnson. Last Friday, the 7th Circuit shot him down again.

Dawkins argued that Mathis provides an independent basis for a second-and-successive authorization, reasoning that any intervening change in the law allows a successive application. The Court held that “this proposition clearly is not true; only new rules of constitutional law, made retroactive by the Supreme Court, can provide a basis for authorization… Mathis did not announce such a rule; it is a case of statutory interpretation. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.”

Dawkins v. United States, Case No. 16-2683 (7th Cir. July 15, 2016)

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SPEAKER RYAN SAYS HOUSE WILL VOTE ON SENTENCE REFORM IN SEPTEMBER

House Speaker Paul Ryan (R-Wisconsin) said last Friday that the House will consider a package of six criminal justice reform bills – including the Sentencing Reform and Corrections Act of 2015 (H.R. 3713) in September.

In an interview on National Public Radio, Ryan promised to give floor time to a package of criminal justice bills advanced by the House Judiciary Committee. The House of Representatives adjourned on Friday until after Labor Day, to give members time to campaign for re-election.

House passage may put pressure on the Senate to vote on S. 2123, its own version of the SRCA. Getting that measure passed is going to be a taller order, given Senate Majority Leader Mitch McConnell’s refusal thus far to commit to bringing the measure up for a vote.

Ironically, Speaker Ryan’s surprise announcement came only a day after Families Against Mandatory Minimums candidly admitted that while “the Sentencing Reform Act (H.R. 3713) and the Sentencing Reform and Corrections Act (S. 2123) made it past the committee review process, they are not at all likely to get voted on or passed this year. There were some good reforms in those bills, but also some bad sentencing changes that would have made things worse. FAMM had been hoping for chances to improve those bills and has been asking Congress to do more. We won’t stop doing that, and we won’t stop working while Congress is away.”

The House version of SRCA picked up two additional sponsors last week, Jim McDermott (D-Washington) and Rob Blum (R-Iowa), bring the number of co-sponsors to 73.  S. 2123 also picked up a pair of additional co-sponsors, Sherrod Brown (D-Ohio) and Dean Heller (R-Nevada). That bill now has 36 co-sponsors.

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HOW ARE THE LOWER COURTS TREATING THE BECKLES CERT?

By now, everyone is aware that before it left for summer vacation, the Supreme Court granted certiorari to Beckles v. United States. This means by the end of the year or early in 2017, the justices will decide whether Johnson v. United States applies to “career offender” sentences under the Sentencing Guidelines (a decision which probably will also dictate whether Johnson applies to the many other references in statute and the Guidelines to “crimes of violence.”

A reader recently asked us what courts were doing with pending 2255 motions that argued Johnson should apply to “career offenders” and people with 924(c) gun convictions based on crimes of violence. Last Thursday, the Court of Appeals for the 2nd Circuit gave us a hint.

Michael Blow pleaded guilty to one count of conspiring to distribute 5 grams or more of cocaine base. The district court sentenced him to as a career offender under the Sentencing Guidelines. He recently filed an application with the 2nd Circuit for leave to file a second-and-successive 2255 motion under Johnson, to argue that one of his predicate offenses was no longer a violent crime.

The 2nd Circuit noted the Supreme Court’s recent grant of certiorari in Beckles, and that the 4th Circuit had previously decided that a “career offender” Johnson challenge would support a second-and-successive 2255, in In re Hubbard. The 2nd said that “in sum, there is substantial disagreement among other circuits on the question on which the Supreme Court has granted certiorari in Beckles.” For that reason, the court granted Michael Blow the right to file a second and successive 2255, and said that “because the Supreme Court will likely decide in Beckles whether Johnson applies retroactively to the Guidelines, the district court is instructed to hold Blow’s § 2255 motion in abeyance pending the outcome of Beckles.”

Blow v. United States, Case No. 16‐1530 (2nd Cir. July 14, 2016)

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BEATING YOUR HEAD AGAINST THE WALL

Gary Baptiste is a guy who never gives up. When he wasn’t able to convince the 11th Circuit that he should be allowed to file a Johnson claim in a second-and-successive 2255 motion, he turned right around and tried again..

Gary’s problem is that he has an 18 U.S.C. Sec. 924(c) sentence for carrying a firearm during a drug trafficking offense or crime of violence. The Court previously found that the underlying crime – trying to rip off a drug stash house – was a drug trafficking offense. Gary argued it was a really a crime of violence, and that it didn’t count after Johnson v. United States.

The 11th Circuit didn’t buy the argument when he first presented it a month ago, and it didn’t buy it this time, either. But in so doing, the Court made some troubling precedent.

A number of prisoners applied for leave to file second-and-successive 2255 motions addressing Johnson’s application to the Guidelines “career offender” residual clause or the “crime of violence” defined in 18 U.S.C. Sec. 16, or even 924(c). They filed prior to June 26th to meet the 2255(f) procedural deadline, only to have circuits like the 11th hold that Johnson didn’t reach beyond the Armed Career Criminal Act. Now, with Beckles v. United States pending before the Supreme Court, it is reasonably likely that Johnson will be extended to all definitions of “crime of violence,” wherever found in the criminal code or sentencing guidelines.

In Gary’s case, the 11th Circuit observed that 28 U.S.C. Sec. 2244(b)(1) directs that a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” The 11th said that while it was written to apply to state prisoners, the “command of § 2244(b)(1) applies with equal force where a prisoner seeks leave to file a second or successive habeas motion based on a claim we rejected in a previous application seeking such leave.”

The appellate panel held that “Sec. 2244(b)(1)‘s mandate applies to applications for leave to file a second or successive § 2255 motion presenting the same claims we have already rejected on their merits in a previous application… In short, where we have already denied an application for leave to file a second or successive motion under § 2255 on the merits, we are required by statute and our caselaw to reject a subsequent application raising the same claim.”

In re Gary Baptiste, Case No. 16-13959 (11th Cir. July 13, 2016)

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IT’LL BE THE DEATH OF ME

In 2011, Logan Gaylord pleaded guilty to a conspiracy to distribute oxycodone. During the drug distribution, Evins – one of Logan’s customers – died of an overdose of oxycodone and cocaine. This was obviously unfortunate for the deceased: it was unfortunately for Logan as well, because 21 U.S.C. § 841(b)(1)(C) provides for a mandatory minimum sentence of 240 months when death results from the unlawfully-distributed drugs. His plea agreement specified that the “death results” enhancement applied because of the customer’s demise.

In 2014, the Supreme Court ruled in Burrage v. United States that the “death results” enhancement in § 841(b)(1)(C) required that the government show that “but for” the drugs provided by the defendant, death would not have resulted. Six months after Burrage, Logan filed a § 2255 motion, arguing that his attorney was ineffective for failing to object to the sentencing enhancement incorporated in the plea agreement. The district court dismissed the § 2255 motion, holding that the Burrage claim was a non-constitutional claim that could have been raised on direct appeal, and thus had been waived. As well, the district court said that Logan had waived his right to bring a collateral attack in his plea agreement.

On Tuesday, the 7th Circuit reversed the decision and sent the case back for an evidentiary hearing. The Court held that Logan had not waived the § 2255 in the plea agreement, because he was in effect claiming that his lawyer was ineffective in advising him to take the plea deal. Although Logan “did not cite Strickland v. Washington or an analogous case, Gaylord did argue that his guilty plea was ‘uninformed, therefore involuntary’ because his counsel insufficiently investigated his case… Thus, Gaylord was mistakenly led to believe that the oxycodone he distributed was the but-for cause of Evins’s death. This is enough to raise a claim of ineffective assistance of counsel, especially given the lenient standard under which we review pro se filings. And since Gaylord argues that his plea agreement was the product of his counsel’s ineffective assistance, he can overcome the waiver provision in the plea agreement.”

The appeals panel concluded that Logan had “alleged facts sufficient to support his claim of deficient performance. There… was no evidence that the oxycodone he distributed was the but-for cause of death. Rather, the postmortem and forensic pathology reports stated that the cause of death was ‘oxycodone and cocaine intoxication.’ In other words, even without the oxycodone, the cocaine concentration may have been enough to result in Evins’s death. It is unclear from the record whether Gaylord’s counsel was aware of the but-for cause standard… examined the postmortem and forensic pathology reports, and provided Gaylord with the information necessary for a knowing and voluntary guilty plea. Thus, Gaylord may have a viable claim of deficient performance.”

The Court held that without the “death results” sentencing enhancement, Logan Gaylord’s sentencing range would have been 210 to 262 months imprisonment. With the enhancement, he faced 240 months to life. What’s more, Logan “alleged in his § 2255 motion that he made his decision to plead guilty based on incomplete information. He claimed that his counsel did not show him the postmortem and forensic pathology reports or explain the issue of causation, and thus his plea was involuntary and uninformed. Construing this pro se filing liberally, this is enough to establish a reasonable probability that but for counsel’s ineffective assistance, Gaylord would not have pled guilty.”

Gaylord v. United States, Case No. 15-1297 (7th Cir.  July 12, 2016)

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STINGRAY SEARCH REQUIRES WARRANT

The DEA was stalking Washington Heights, New York, looking to bust an international drug ring. Agents got a warrant to pull cell site records on Ray Lambis’s smartphone, but the information they got only narrowed their search to a street corner that was home to several apartment buildings.

The agents decided to try for something more accurate, so they brought in a Stingray, a device that spoofed cellphones into thinking it was a cellphone tower and transmitted. So fooled, the phones transmitted identifying information to the Stingray every 7 seconds, letting the DEA home in on the exact location of the phone. The agents were moving fast, so they did not bother with a search warrant. Sure enough, the Stingray led agents to Ray’s dad’s apartment, and he let them search the place.

Yesterday, a Southern District of New York judge threw out the evidence they obtained from the search, holding that a Stingray search requires a search warrant. The DEA argued that Ray Lambis had not expectation of privacy in the pings his phone emanated. But relying on the 2001 Supreme Court decision in Kyllo v. United States, the District Court said “the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the “pings” from Lambis’s cell phone to the nearest cell site were not readily available “to anyone who wanted to look” without the use of a cell-site simulator. The DEA’s use of the cell-site simulator revealed ‘details of the home that would previously have been unknowable without physical intrusion,’ namely, that the target cell phone was located within Lambis’s apartment. Moreover, the cell-site simulator is not a device ‘in general public use.’ In fact, the DEA agent who testified at the hearing had never used one.”

The Court concluded that “The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

Opinion and Order, United States v. Lambis, Case No. 15cr734 (S.D.N.Y. July 12, 2016)

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THE CASE IS BLACK AND WHITE

It’s not racial bias – it’s empirical. Federal defendants hoping to win on appeal (because, after all, hardly anyone wins in the district court – will do better if the trial judge is black.

According to a Harvard Kennedy School of Government study, black federal judges are “significantly more likely” to be overruled than white judges. Researcher Maya Sen studied 1,000 judges appointed by presidents ranging from Lyndon Johnson to Barack Obama, and found that over the period 2000 through 2012, about 2,800 more black judge-written decisions were reversed on appeal than would have been the case if black and white judges were overruled at the same rate.

NPR reported on the study this morning, with the reporter and host speculating at length that the difference was probably due to the trial judges’ ideology being more liberal than the mainstream.

NPR Morning Edition, Research: Black Judges Are Reversed On Appeal More Than White Judges (July 12, 2016)