Think Global, Indict Local – Update for January 4, 2024

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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.

CRIMINAL CASE VENUE MEANS SOMETHING

Former Congressman Jeff Fortenberry (R-NE) was investigated for a $30,000 illegal campaign contribution funneled to him at a 2016 Los Angeles fundraiser. Two years later, the FBI – which had been running the investigation from its Los Angeles office – had a cooperating witness call Jeff with an FBI agent secretly listening in to tell him that a Nigerian businessman was probably the source of a $30,000 donation that Jeff had gotten at the fundraiser.

nigerianprince240104After that, two Los Angeles-based FBI agents went to Lincoln, Nebraska, to interview Jeff. He denied anyone had ever told him about any illegal foreign contributions to his campaign. Jeff was later interviewed again in his Washington, DC, office, and again denied having been told that any campaign contributions were illegal.

In October 2019, Jeff was charged with three counts related to making false statements to federal investigators. He was convicted by a jury in 2021 and promptly resigned from Congress. In June 2022, he was sentenced to two years’ probation, community service, and a $25,000 fine.

Santa came late for Jeff, but the jolly old elf arrived in a big way. The day after Christmas, the 9th Circuit reversed Jeff’s convictions for lack of venue.

“Questions of venue in criminal cases… are not merely matters of formal legal procedure,” the Circuit said. “They present policy concerns deeply rooted in the Constitution. Article III, sec 2, cl. 3, requires that the ‘trial of all Crimes… shall be held in the State where the… Crimes shall have been committed… This command is reinforced by the Vicinage Clause of the 6th Amendment, which “guarantees ‘the right to… an impartial jury of the State and district wherein the crime shall have been committed.”

The government admitted that Jeff had lied to them in Nebraska and Washington, DC, but claimed that his lies affected an investigation in California, so venue in California’s Central District was proper. The 9th disagreed.

To determine the locus delicti – the location of the crime – the Circuit said, “We look to the essential conduct elements of the offense.” Under 18 USC § 1001, which criminalizes “knowingly and willfully… making any materially false, fictitious, or fraudulent statement or representation,” the essential conduct of the offense is the making of a false statement. Section 1001(a)(2) “does not contain a venue clause, nor is there any language suggesting any ‘essential conduct element’ other than making a false statement,” the 9th said. “It is the act of uttering a false statement that is the criminal behavior essential to liability” under § 1001.

venue240104The Circuit agreed that while the government had to prove materiality, that fact was irrelevant to determining venue. The venue inquiry instead “turns on the action by the defendant that is essential to the offense, and where that specific action took place,” the appellate court held. “Materiality is not conduct because it does not require anything to actually happen. We have previously held that materiality requires only that a statement must have the capacity to influence a federal agency…In other words, the “test is the intrinsic capabilities of the false statement itself, rather than the possibility of the actual attainment of its end as measured by collateral circumstances.”

Jeff is not out of the woods, but the government will have to decide whether it wants to retry him in Nebraska or Washington, DC, where it will have to enlist the interest of the U.S. Attorney in either of those venues to expend resources on a case that will end in probation for a guy who is already a few years out of politics and the headlines.

United States v. Fortenberry, Case No. 22-50144, 2023 U.S.App. LEXIS 34167 (9th Cir. December 26, 2023)

– Thomas L. Root

Clemency: Out With The Old, In With the New – Update for January 2, 2024

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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.

THROWING OUT THE LEFTOVERS

Sometime this week, we’ll clean out the refrigerator. We stored our Christmas dinner leftovers eight days ago in Tupperware containers with the best of intentions: we would have several great meals where we could reprise the Christmas feast, remembering that fine meal while being frugal.

throwaway240102But somehow we never get to the leftovers. Finally, this week, we’ll just sigh and decide to throw all of the old leftovers away because they’ve just been sitting around too long. We don’t have the appetite to eat plum pudding over a week later, and we don’t know whether the Christmas goose is still safe to eat, no matter how carefully we stored it.

The Biden Administration has its own leftover problem, and like we’ll do in a couple of days, the Dept of Justice is addressing clemency by throwing everything out and starting over. Last week, DOJ – in a time-honored government agency tradition – hailed its good intentions as a cover for its historical failings. The agency announced an all-new initiative on clemency that tacitly admitted its management of the pardon/commutation program over the last 1,079 days or so has been an unmitigated FUBAR.

A DOJ “Fact Sheet” issued last Thursday announced the rollout of a new simplified clemency form that runs eight pages (not including instructions) compared to the old form’s six pages. The 33% expansion isn’t necessarily a bad thing: The new form includes for the first time questions about prison programs completed and details about release plans – logical considerations, perhaps, in a clemency determination and information an applicant previously had to know should be included in an attachment to the form.

The DOJ also promises that it “is taking steps, including providing additional staffing and technical support for the Office of the Pardon Attorney, to reduce the processing times to ensure that clemency petitioners receive answers in a timely fashion.”

So that’s good, not bad, right? Yes, except for the DOJ’s next improvement:

The current Administration inherited an unprecedented backlog of clemency petitions. Soon, the Justice Department will begin issuing letters to petitioners that have not been granted clemency in order to deliver closure to those waiting for answers they deserve. Those receiving letters are welcome to submit new petitions.

do-over240102If a federal prisoner is one of the 18,000 applicants on file, he or she has just won the right to apply for commutation again, using a new form. All that work done on the prior form? All the BOP staff’s work in responding to Office of Pardon Attorney requests for information (and there’s been a lot of that)? Consider it practice…

To be sure, Biden’s DOJ clemency team did inherit an incredible backlog of clemency petitions from President Trump, who inherited an incredible backlog of clemency petitions from President Obama, Still, with Biden’s first (and maybe only) term 75% completed – the current President’s clemency grant rate is the worst in modern presidential history. Unlike all of his predecessors, he has not denied any petitions at all, meaning that the number of backlogged petitions has just gotten bigger.

clemency220418Still, candidate Biden once promised to assemble a “60-person agency independent of the DOJ, composed of people with diverse backgrounds” to review clemency cases. Less than a month into Biden’s term, Politico reported that the White House was seeking suggestions on how to reform the clemency system and deal with the backlog. But even then, some advocates doubted that Biden’s team had a plan for dealing with the backlog.

Ohio State University law professor Douglas Berman, writing in his Sentencing Policy and the Law blog, said at the time:

Regular readers will not be surprised to hear me endorse the sentiments of Cynthia Roseberry, namely that “It’s time. It’s past time.” I also share Mark Osler’s view that this could have and should have been a transition priority for the Biden team. Still, I am not inclined to aggressively criticize the Biden Administration if it currently has advisers and insiders talking to and working with advocates about how to put together a “comprehensive plan” for effective clemency reform. But, as the title of this post is meant to highlight, taking a careful and deliberative process toward grander reform of the entire clemency process should not be an excuse for Prez Biden to hold back entirely on the use of his clemency pen.

football140422Prisoners and their families can probably be forgiven for being skeptical of any Administration promise now that it is going to do anything, where its prior assurances have proven to be hollow.

Lucy. Charlie Brown. Football. C’mon, prisoners, try another kick. The DOJ promises to hold the ball for you this time.

For those more optimistic than I, the new commutation form is available at

https://www.justice.gov/media/892361/dl?inline

DOJ also promises that it “is working to educate the public about how to submit a clemency application in order to demystify the process and help ensure broader and more equitable access.” The only mystery is why we have gone three years into the presidential term of a man who in his first 100 days promised to fix clemency, only to have 18,000 people be told to start over.

DOJ Press Release, Fact Sheet: Justice Department Improvements to the Clemency Process (December 28, 2023)

DOJ, New Clemency Form (December 28, 2023)

Politico, Trump left behind a clemency mess. The clock’s ticking for Biden to solve it. (February 11, 2021)

Sentencing Law and Policy, How about some clemency grants from Prez Biden while his team works on grander clemency plans? (February 11, 2021)

– Thomas L. Root

Last Gift in the Bag: Something For The First Step Act – Update for December 29, 2023

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FINALLY, A CANDY CANE FOR THE FIRST STEP ACT (BUT A LUMP OF COAL TO THE BOP)

I end my year-end emptying of Santa’s bag with this: The First Step Act turned five years old last week.


candycane231229I still wonder how the First Step Act ever passed. Back then, back in those dark November and December days in 2018, I was wondering how the bill would make it through the 115th Congress before the session expired. In fact I wrote its obituary several times in those waning days.

Back then, I publicly lamented the bill’s “dumbing down” to appease the Senator Tom Cottons, Josh Hawleys and Ted Cruzs of the world and wondered how quickly prisoners would see any advantages. It didn’t unfold like I thought it would, but then, who saw the pandemic coming?

First Step emerged from Congress leaner and definitely meaner than it started. Changes in 18 USC 924(c) to limit draconian mandatory sentences for successive violations were made nonretroactive. The list of convictions excluded from getting credit for successful completion of programming intended to reduce recidivism got longer and longer.

But for all of the belly-aching at the time, there has not been a piece of criminal justice reform legislation like First Step for at least 50 years. It’s easy to complain about the failings of the bill, largely due to political horse-trading needed to get the measure passed and Federal Bureau of Prisons administrative misfeasance and malfeasance. For the public, it has been an unqualified success. Without it, the federal prison population would be substantially higher than it is today. What’s more important, as The Hill put it last week, “since the First Step Act passed, thousands more people leaving the federal prison system have rebuilt their lives without reoffending — in fact, the federal recidivism rate has dropped by an estimated 37%t since the law was enacted.”

compassion160124What’s more, nearly 4,000 people received retroactive Fair Sentencing Act sentence reductions, over 4,600 people went home on compassionate releases, almost 1,250 elderly offenders went to home confinement under the 34 USC 60541(g)(5) pilot program, and almost 27,000 inmates have gotten earlier release through FSA credits.

As we approach the 2024 elections, some Republican candidates have been grousing about the First Step Act. Florida Gov Ron DeSantis, who voted for First Step as a Congressman in 2018, denounced the bill last summer as a “jailbreak bill” and said he would get it repealed. But last week, Trump published his campaign’s “Platinum Plan” including a commitment to “continue to make historic improvements to the criminal justice system through common sense actions like the First Step Act” with a “Second Step Act.”

One commentator said that “the Act’s positive outcomes, such as significantly lower recidivism rates among those released under its provisions, demonstrate that public safety reforms are not inherently linked to the recent surge in violent crime… On the other end of the spectrum, we find the likes of Chris Christie and Nikki Haley. Their records of reform in New Jersey and South Carolina, respectively, have been lauded as models of successful criminal justice reform.”

lumpofcoal221215One piece of coal fell out of Santa’s bag along with First Step’s candy cane. The coal goes to the BOP for its disingenuous press release last week that said “the Federal Bureau of Prisons is proud of the work accomplished implementing the First Step Act. Including the support and collaboration of our partners and stakeholders, the dedication and hard work of our employees, and the courage and resilience of the AICs [‘adults in custody’ for you Philistines who still think of them as prisoners and inmates]and their families.”

Anyone who recalls the BOP’s approving 36 out of 31,000 compassionate release requests during the pandemic (an average of 1 in 1,000), its mean-spirited and chary November 2020 proposed rules for FSA credits that were rejected only by new leadership in the Dept of Justice just before adoption a year later, and its ham-handed efforts to timely credit and post FSA credits knows that First Step’s successes have been despite, not because, of BOP administration.

The Hill, Five years on, Congress must build on the First Step Act successes (December 21, 2023)

BNN, The First Step Act: A Pivotal Landmark in Criminal Justice Reform and its Political Implications (December 18, 2023)

BOP, Fifth Anniversary of the First Step Act (December 21, 2023)

– Thomas L. Root

Continuing Our Santa Gift Review: A Lump of Coal for a Pro Se Defendant – Update for December 28, 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.

‘I AIN’T NO SNITCH – I’M JUST AN IDIOT’

Henry Underwood chose to represent himself at trial on a felon in possession of a firearm charge. After all, what do those lawyers know that Hank doesn’t?

snitchin200309Well, for starters, try this one on for size. Hank took the stand to testify in his own defense to the 18 USC § 922(g) felon-in-possession count. He explained to the jury that the gun found under his car seat belonged to someone else, not to him.

OK, so far, so good. But on cross-examination, the prosecutor asked the obvious question: if not Hank, exactly to whom did the gun belong? Hank tried to plead the 5th Amendment, saying he did not want to name the owner because he was no “snitch.”

You see, Hank, that dumb lawyer you didn’t want would have told you that by testifying, you were waiving your 5th Amendment rights. But Hank had jettisoned his mouthpiece as unnecessary. For his continued refusal to answer the prosecutor’s question, Hank found himself on the receiving end of a criminal contempt finding. Oh, yeah, and the jury found his testimony not credible and thus voted him guilty of the charged offense.

On appeal, Henry (now represented by counsel, a classic “too little, too late” decision if ever there was one, argued that his pretrial waiver of the right to counsel was not knowing and voluntary.

lumpofcoal221215Last week, the 7th Circuit gave Henry a lump of coal. The Circuit reviewed the four factors considered in determining whether a waiver is knowing and voluntary. The first is whether the court had made a formal inquiry into the defendant’s decision to represent himself. Hank argued that the court should have advised him of what his defenses were (and that he’d better be ready to answer questions on cross-examination if he took the stand). The 7th rejected that notion out of hand. The judge is not there to counsel the defendant.

The appellate panel also held that Henry’s “active participation at trial and regular consultation with standby counsel indicate that he knew the choice he was making when he elected to proceed pro se. Reliance on standby counsel reflects an appreciation for the difficulties of self-representation,” the Circuit held.

Besides, the Circuit said, Henry was no virgin. He had two prior felony convictions and one murder acquittal by a jury, “indicat[ing] he possessed knowledge of the complexities of procedure and trial sufficient to make him aware of the task she was undertaking.”

argueidiot180215Finally, the Court said, Hank “chose to proceed pro se after a disagreement with his appointed counsel over his defense and trial strategy. A defendant who waives his right to counsel for strategic reasons, including the decision to proceed without counsel due to differences in opinion regarding defense strategy, tends to do so knowingly… We therefore presume Underwood’s choice in this instance to have been strategic and intentional.”

If Henry thought that he could select which questions he was going to answer when he took the stand, he did not understand the 5th Amendment right against self-incrimination and thus had no business firing his lawyer.

 United States v. Underwood, Case No 23-1303, 2023 U.S.App. LEXIS 33404 (7th Cir., Dec 18, 2023)

– Thomas L. Root

The Santa Report: A Lump of Coal for Congress – Update for December 26, 2023

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A LUMP OF COAL FOR CONGRESS

The House of Representatives held 700 votes in 2023, but managed to pass only 27 bills, a “dramatic productivity decline relative to previous years, even when compared to other eras of divided government,” NPR reported last week.

grid160229Yeah, it’s true that generally speaking, “[n]o man’s life, liberty or property are safe while the Legislature is in session.” (It is not true that Mark Twain originated that chestnut: it really belonged to  Surrogate Judge Gideon J. Tucker, writing in Final Accounting in the Estate of A.B. back in 18660. But “do-nothing” Congresses have been derided before, despite the fact that Truman’s original “do-nothing” Congress was more productive than many and beat the hell out of the 118th.

clowncar231226The New York Times reported that “some Republican lawmakers have expressed frustration at their inability to get things done. ‘If we don’t change the foundational problems within our conference, it’s just going to be the same stupid clown car with a different driver,’ Representative Dusty Johnson of South Dakota vented to reporters in October after Mr. McCarthy’s ouster. But those foundational problems remain.”

For all of those who regularly ask where the EQUAL Act stands, when Congress is going to “fix” 18 USC § 924(c), reinstate the elderly offender home detention program, “do something for sex offenders,” or pass the mythical “65% law” (yeah, I was once again asked about that rumor last Friday), there’s your answer.

NPR, Congress passed so few laws this year that we explained them all in 1,000 words (December 22, 2023)

New York Times, House Dysfunction by the Numbers: 724 Votes, Only 27 Laws Enacted (December 19, 2023)

– Thomas L. Root

Uncle Joe Goes Light on Clemency Gifts This Christmas – Update for December 22, 2023

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CLEMENCY FOR CHRISTMAS

clemencyjack161229I had a post prepared wondering whether we would see any clemency from President Biden this year. As I was putting it up this morning, the President announced one mass pardon and commutations of sentences for “11 fellow Americans who are serving unduly long sentences for non-violent drug offenses.”

First, the mass marijuana pardon. The President granted a pardon 

to all current United States citizens and lawful permanent residents who, on or before the date of this proclamation, committed or were convicted of the offense of simple possession of marijuana, attempted simple possession of marijuana, or use of marijuana, regardless of whether they have been charged with or prosecuted for these offenses on or before the date of this proclamation.” The pardon covers people violating 21 USC § 844 (simple possession on federal property), 21 USC § 846 (attempts to possess pot), DC Code sections prohibiting simple possession of marijuana, and any of a thundering herd of Federal regulations that prohibit “only the simple possession or use of marijuana on Federal properties or installations, or in other locales, as currently or previously codified.

numbersBeyond that, the President commuted the sentences of 11 people convicted of drug offenses. His clemency picks by the numbers:

• Two of the recipients had trafficked in methamphetamines and nine in cocaine or crack;

• Four of the recipients were serving life terms, five were serving 20-year sentences, one a 22-year sentence, and one a 15-1/2 year sentence;

• For the non-life sentence people, the average sentence was 235 months. The commutations cut those sentences by an average of 19%;

• One life sentence recipient had served 15 years, the other three had served from 25-27 years;

• Two of the life-sentence inmates still have substantial time left to serve, one 8 years and the other 12 years; and

• Nine of the recipients were in prison, two were already on home confinement or in halfway house;

Any clemency is good clemency, but President Biden’s production is a little paltry. Last year, Biden issued pardons to six people on December 28, four for various low-level drug offenses, one for the illegal sale of whiskey, and one to an 80-year-old woman who killed her husband 47 years ago. All of the people were convicted for crimes that occurred at least 20 years before. No one had served more than two years.

At the time, the White House said the pardoned people had served sentences and “demonstrated a commitment to improving their communities and the lives of those around them.” This time around, the President said that the commutation serves “to uphold the values of redemption and rehabilitation.”

President Biden’s clemency performance to date is tepid. Law professor Mark Osler, one of a handful of clemency scholars in the US, wrote in The Atlantic:

Obama granted more than 1,700 commutations, which, unlike a pardon, shorten a sentence while leaving the conviction standing. But he accomplished this by cranking the broken system hard; he never changed the process. The news since then has been depressing. Donald Trump used clemency largely to reward tough guys, fraudsters, and others he knew or admired, and only a couple hundred of them at that. Joe Biden is the most lackluster user of the pardon power in memory. He has done little beyond granting commutations to people who are already out of prison and pardons to minor marijuana offenders. He has yet to even deny any petitioners by presidential action. An enormous backlog of petitions languishes, ignored.

clemency231222The politically safe but meaningless blanket pardon for simple marijuana possession will likely garner the headlines. Remember, when the President announced a mass pardon in October 2021, none of the eligible recipients was even in prison. President Biden’s action today has cut the number of pending petitions for clemency by an estimated six-one hundredths of a percent. There’s a reason I tell people wanting a federal clemency to use the $1.00 it will cost to mail it for a lottery ticket instead: the odds of winning big in Powerball are so much better.

White House, A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana, Attempted Simple Possession of Marijuana, or Use of Marijuana (December 22, 2023)

White House, Clemency Recipient List (December 22, 2023)

Reuters, Biden reduces sentences of 11 facing non-violent drug charges (December 22, 2023)

The Atlantic, The Forgotten Tradition of Clemency (December 16, 2023)

AP, Biden pardons 6 convicted of murder, drug, alcohol crimes (December 30, 2022)

– Thomas L. Root

An “AIC” Would Get More Prison Time For Doing What the BOP and ACA Did – Update for December 21, 2023

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INSPECTOR GENERAL UNMASKS BOP-ACA INSPECTION SCAM

Adults in Custody (that’s “prisoners” in normal-speak and so far, the new label is about all the progress BOP Director Colette Peters has made in 17 months at the helm) are fortunate that the institutions in which they’re housed are regularly audited by the American Correctional Association to ensure that they continue to meet that organization’s uncompromising high standards.

badcheck231221Of course. And the check’s in the mail, too…

A report issued by the Dept of Justice Inspector General last month found that instead of providing an independent evaluation of Federal Bureau of Prisons facilities, the ACA “instead relied on the prisons’ own internal reports during reaccreditation reviews.” In other words, as the DOJ put it, “it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

The BOP awarded a $2.75 million contract to the ACA in 2018 to obtain accreditation and reaccreditation for BOP facilities. Five years into the agreement, the DOJ audit was intended to evaluate “the value the BOP receives through ACA accreditation for its prisons” and “how the BOP uses ACA’s accreditation to improve BOP standards for health, safety, and security of inmates and staff; and (3) the BOP’s contract administration and ACA’s performance and compliance with terms, conditions, laws, and regulations applicable to the contract.

nothingtosee230313The IG’s report found that “[a]lthough the contract requires ACA to perform its accreditation and reaccreditation in accordance with ACA’s policies, manuals, and procedures, current BOP and ACA officials… agreed that ACA would only perform independent reviews of BOP facilities as provided for in ACA policy during initial accreditation. For reaccreditation reviews, which was most of ACA’s work under the contract, the BOP and ACA agreed that ACA would rely on the BOP’s internal program review reports. As a result, it appears the BOP is, in effect, paying ACA to affirm the BOP’s own findings.”

The auditors also wrote they “did not identify instances where the BOP used ACA’s accreditation process to improve BOP standards for health, safety, and security of inmates and staff.” Of course not. If the BOP did a self-audit that the ACA signed off on, why bother to improve? Remember that only three months ago, NPR reported that the BOP claimed on its website that its medical centers were accredited by the Joint Commission, which accredits the vast majority of US hospitals, when in fact the certification had lapsed two years before.

NPR’s investigation – showing that federal prisoners die from treatable conditions that the BOP does not diagnose or treat in a timely way – was behind a call last week from Sens Richard Durbin (D-IL) and Charles Grassley (R-IA) for better BOP healthcare.

drquack191111“It is deeply upsetting that families are mourning the loss of their loved ones because they were not afforded the proper medical care they deserved while incarcerated,” Durbin, who is chairman of the Senate Judiciary Committee, told NPR. “BOP must immediately prioritize correcting the ineffective, harmful standards and procedures used to determine when an incarcerated person will be seen by medical professionals.”

Grassley, also a member of the Judiciary Committee, agreed. “BOP needs to be held responsible for this failure and take action to raise its standards.”

In response, a BOP spokesperson told NPR the Bureau “‘appreciates the Senators’ focus on this important issue’ and is committed to continue working with them on oversight.”

DOJ Office of Inspector General, Audit of the Federal Bureau of Prisons’ Contract Awarded to the American Correctional Association (November 16, 2023)

Lincoln, Nebraska, Journal-Star, Federal audit blasts nonprofit responsible for accrediting Nebraska’s prisons (December 10, 2023)

NPR, Lawmakers push for federal prison oversight after reports of inadequate medical care (December 12, 2023)

– Thomas L. Root

Supremes Will Review Four More Criminal Cases – Update for December 19, 2023

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SUPREME COURT ENDS YEAR WITH CRIMINAL-CASE CERTIORARI BLOWOUT

In what was probably its last certiorari grant order for 2023, the Supreme Court issued probably added four criminal cases last week.

blowout231219The highest profile case is Fischer v. United States, which arises from a defendant convicted of obstruction of Congress for the January 6th Capitol riot. He was convicted of an 18 USC § 1512(c) offense, which prohibits corruptly obstructing, influencing, or impeding “any official proceeding.” The district court dismissed the § 1512(c) charge, holding that Congress only intended it to apply to evidence tampering that obstructs an official proceeding. The D.C. Circuit Court of Appeals reversed that decision in a 2-1 opinion, ruling that “[u]nder the most natural reading of the statute,” the law “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence-tampering language of § 1512(b). One judge dissented that the government’s interpretation of the statute would render it “both improbably broad and unconstitutional in many of its applications.”

SCOTUS also will review a 9th Circuit ruling in favor of Danny Lee Jones, sentenced to death for two murders. A federal district court in Arizona rejected Jones’s claims that his lawyer had provided inadequate assistance, but the 9th reversed that decision, upholding its position in an order denying an en banc rehearing with ten judges dissenting.

The issue is how evidence not presented by a defense attorney because of failure to investigate should be weighed in determining Strickland v. Washington prejudice in a post-conviction proceeding. Although the issue relates to an Arizona death penalty case, the outcome could provide the first new ruling on Strickland prejudice in well over a decade.

goodpros170330In Chiaverini v. City of Napoleon, the high court will consider whether a claim for malicious prosecution can proceed for a baseless criminal charge, even if there was probable cause for prosecutors to bring other criminal charges. In Snyder v. United States, the Supremes will consider whether the federal bribery statute – 18 USC § 666(a)(1)(B) – makes it a crime to accept “gratuities” — that is, payment for something a government official has already done, without any prior agreement to take those actions in exchange for payment.

The Court will rule on the cases by the end of its current term on June 30, 2024.

Sentencing Law and Policy, Four criminal cases of note in latest SCOTUS cert grants (December 13, 2023)

Fischer v. United States, Case No. 23-5572 (certiorari granted December 13, 2023)

Thornell v. Jones, Case No. 22-982 (certiorari granted December 13, 2023)

Chiaverini v. Napoleon, Case No. 23-50 (certiorari granted December 13, 2023)

Snyder v. United States, Case No. 23-108 (certiorari granted December 13, 2023)

– Thomas L. Root

Sentencing Commission Proposes Acquitted Conduct Sentencing Change – Update for December 18, 2023

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MOVING RIGHT ALONG…

USSC170511Last Thursday the U.S. Sentencing Commission acted with uncharacteristic alacrity, adopting proposed amendments for the 2024 amendment cycle about a month earlier than has been typical over the past 30 years.

The Commission proposes seven changes in Guideline policy in a 755-page release, the most anticipated of which is the use of acquitted conduct at sentencing.

The Commission proposes adopting one of three acquitted conduct options:

Option 1 would amend § 1B1.3, the “relevant conduct” Guideline, to provide that acquitted conduct is not relevant conduct for determining the guideline range. It would define “acquitted conduct” as conduct constituting an element of a charge of which the defendant has been acquitted by the court, except for conduct establishing the instant offense that was “found by the trier of fact beyond a reasonable doubt.”

Option 2 would amend the § 1B1.3 Commentary to provide that a downward departure may be warranted if the use of acquitted conduct has a “disproportionate impact” on the guideline range.

Option 3 would amend USSG § 6A1.3 (which addresses the standard of proof required to resolve Guidelines disputes) to provide that while a “preponderance of the evidence” standard generally is sufficient, acquitted conduct should not be considered unless it is established by clear and convincing evidence.

acquitted230106The Supreme Court last June denied 13 petitions for writ of certiorari related to use of acquitted conduct in sentencing. Four Justices felt the Commission should first address the issue. US District Judge Carlton W. Reeves, chairman of the USSC, said, “When the Supreme Court tells us to address an issue, the Commission listens… [A]ll options are on the table.”

The USSC proposal also addresses counting juvenile convictions for criminal history. The Commission proposed changes that would limit the impact of those convictions on criminal history scoring and expand consideration of a defendant’s youth at sentencing.

One piece of bad news is the Commission’s proposal to undo the effects of the 2019 Supreme Court Kisor v. Willkie decision. A year ago, the 3rd Circuit relied on Kisor in United States v. Banks to hold that the loss enhancement under USSG § 2B1.1(b)(1) includes only what was actually lost. The Circuit reasoned that the word “intended” appears only in the 2B1.1 commentary and not in the Guideline itself, and thus “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Sentencing for “intended loss” is the fraud equivalent of “ghost dope“:  Often, “intended loss” is what the government says it is, and that figure shoots the Guidelines sentencing range to the moon.

Banks sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines. The 3rd said the USSC lacked authority to use its commentary – which is not subject to Congressional approval before adoption – to expand the meaning of “loss” to include what was intended but did not happen.

loss210312The USSC now intends to short-circuit the Kisor v. Willkie debate (and to kneecap the Banks decision) by moving “intended loss” from the commentary into the text of 2B1.1. Because that amendment will be subject to a possible (but improbable) veto by Congress veto, the Kisor v. Willkie problem with 2B1.1 will melt as fast as snowflakes on a hot stove.

The USSC drew its proposed amendment from policy priorities adopted last August. Not making the final cut were policy priorities on career offender (and not for the first time) and methamphetamine.

The proposed amendments will be open for public comment period until February 22, 2024. A public hearing will occur after that. Final proposed amendments will be sent to Congress by May 1 to become effective next November 1, 2024.

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (December 14, 2023)

USSC, US Sentencing Commission seeks comment on proposals addressing the impact of acquitted conduct, youthful convictions, and other issues (December 14, 2023)

USSC, Public Hearing (December 14, 2023)

USSC, Federal Register Notice of Final 2023-2024 Priorities (August 24, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir. 2022)

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

– Thomas L. Root

Whose Motion Did You Just Deny, Judge? – Update for December 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.

I NEVER SAID THAT

Neversaidthat231215Ever feel like the court was reading something other than your motion when it denied you relief?

Robin Sims filed for compassionate release under 18 USC § 3582(c)(1)(A), arguing that COVID had wrecked his health and the Federal Bureau of Prisons was not giving him adequate care. The government agreed that at least one of Robin’s chronic medical conditions was an “extraordinary and compelling” reason for a compassionate release, but it opposed Robin’s motion because the 18 USC § 3553(a) sentencing factors failed to support letting Robin out at this time.

The district court, however, released an opinion smacking of alternate reality. It first held that Robin’s argument for release “due to the increased risk of contracting COVID and changes in the law arguments [did] not amount to an extraordinary and compelling reason warranting a sentence reduction.” The court also noted the government’s opposition claim that there were no extraordinary and compelling reasons for granting compassionate release. Finally, the district court concluded, the § 3553(a) factors weighed against grant. The court denied the compassionate release on those bases.

twooutofthree231214Last week the 9th Circuit reversed the district court denial, holding that “the government and the district court misread Sims’s pro se motion.”

The district court and government were unforgivably sloppy. First, the government summarized Robin’s argument as being that “extraordinary and compelling reasons exist because the coronavirus (COVID-19) places him at risk if he remains in the custody of BOP.”

Robin never said that. Rather, he argued that he was experiencing ongoing medical complications because of the COVID he had had. He challenged the adequacy of the BOP medical care. Robin relied on these reasons, in addition to intervening changes in the law, to show extraordinary and compelling reasons in support of a reduced sentence.

The 9th also ruled that the district court’s order misstated the government’s position by mistakenly saying that the government opposed Robin’s motion because he had failed to show extraordinary and compelling reasons.  The government had said just the opposite.

mistake170417Doesn’t matter, the government told the 9th Circuit. The district court errors were harmless, the government contended, because the judge had also found that the § 3553(a) factors disfavored Robin’s motion. The Circuit disagreed. “[M]otions for compassionate release require an individualized inquiry,” the Circuit held, and “here, we see no indication that the district court considered Sims’s argument that his health and medical care needs were ‘extraordinary and compelling,’ or that it reviewed the medical records [he] submitted in support of his motion.

The case now goes back to the district court to consider the 18 USC § 3553 factors in light of the extraordinary and compelling reasons Robin had shown.

United States v. Sims, Case No 22-3430, 2023 U.S.App. LEXIS 32310 (8th Cir., December 7, 2023)

– Thomas L. Root