Benefit of the Dout – Update for December 2, 2022

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6TH CIRCUIT CUTS INMATE FILER A BREAK ON CONFUSING PLEADING

cutbreak221201Eighty-three days after his judge denied his 28 U.S.C. § 2255 motion, Joe Reho filed something with the district court. It may have been a motion for an extension of time to apply for a certificate of appealability. It may have been a notice of appeal. No one was quite sure what it was, but everyone was quite sure it was written without the benefit of a dictionary nearby.

The district court decided it must be a notice of appeal and dismissed it as being 23 days late.

Last week, the 6th Circuit remanded the case, concluding that Joe’s motion, which repeatedly asked for an extension of time, “is better construed as a motion for extension of time to file a notice of appeal.”

grammar221201Under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, district court may extend the time to file a notice of appeal based on “excusable neglect or good cause” if an extension is filed within 30 days after the notice of appeal due date. Here, Circuit said, construing Joe’s “filing liberally, we conclude that he moved for an extension of time to file a notice of appeal. While the district court docketed the document as a notice of appeal, Joe’s motion requested, in the opening paragraph, ‘a extention of time to filed a certificate of Appealability… and to proceed inform a peuperis on appeal.”

CantSpell221201“This court construes pro se habeas petitions liberally,” the 6th held, apparently even where spelling and grammar are butchered. “For instance, we regularly construe notices of appeal as applications for a certificate of appealability… We have also construed motions for extension of time as notices of appeal… Repo’s motion appears to ask for an extension to apply for a certificate of appealability rather than for an extension to file a notice of appeal. But his motion is a far cry from the simple notices of appeal that we have refused to construe as motions for extension… Repo’s motion reads as a motion for extension of time to file a notice of appeal and will be treated as such.”

Reho v. United States, Case No 22-3784, 2022 U.S.App. LEXIS 31392 (6th Cir., Nov. 14, 2022)

– Thomas L. Root

Pardoning Turkeys, Not People – Update for December 1, 2022

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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.

BIDEN TURKEY PARDONS DRAW CRITICISM

President Joe Biden continued a 75-year tradition last week, pardoning a pair of North Carolina turkeys named Chocolate and Chip after his favorite flavor of ice cream.

turkeypardon221201“The votes are in, they’ve been counted and verified,” Biden said, granting the pardons. “There’s no ballot stuffing. There’s no fowl play.”

Vote counting apparently did not include the over 18,000 people whose applications for pardons or commutations are piled up at the Dept. of Justice Pardon Attorney’s office.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, referred to the ceremony as “the annual turkey pardon silliness at the White House.”

clemencybacklog190904Reason magazine was not much kinder to Biden’s clemency for those convicted of simple marijuana possession announced in October. The mass pardon was “an example of all hat and no cattle,” Reason said. “‘I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,’ [Biden] said in October. ‘None…’ But not a single person was released from custody by the Bureau of Prisons due to Biden’s proclamation… The presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.”

Associated Press, Biden opens holidays, pardons turkeys Chocolate and Chip (November 21, 2022)

Sentencing Law and Policy, Does Prez Biden’s clemency record in 2022 deserve some praise on the day of turkey pardons? (November 21, 2022)

Reason, Pardon People, Not Turkeys (November 23, 2022)

– Thomas L. Root

Congressional Cannabis Reform Predicted for December – Update for November 29, 2022

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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.

INTEREST INCREASES IN PASSING MARIJUANA REFORM

marijuana221111While no one is talking about pushing the EQUAL Act (S.79) over the finish line before the current Congress expires on January 2nd, the last two weeks have seen a flurry of activity in marijuana reform raising hopes that legislation that includes relief for people serving pot-related sentences may yet pass the Senate next month.

On November 16, the Senate passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act, and sent the bill to President Joe Biden. The bill removes barriers making it difficult for researchers to study the effectiveness and safety of marijuana-derived medicines. When it passed, Senate Majority Leader Charles Schumer (D-NY) – who controls what bills come up for a full Senate vote – said, “I hope after passing this bill the Senate can make progress on other cannabis legislation, too. I’m still holding productive talks with Democratic and Republican colleagues in the House and the Senate on moving additional bipartisan cannabis legislation in the lame duck.”

Marijuana Moment reported last week that “talks are intensifying over a marijuana banking and expungements bill that Senate leadership is working to finalize, with advocates feeling increasingly optimistic about seeing action” during the final weeks of this Congress.

On January 2, 2023, the 117th Congress comes to an end. Any pending bills that have not been passed will be discarded. A new Congress, the 118th, begins the next day. This means the EQUAL Act, the MORE Act, the First Step Implementation Act, and everything else in the legislative hopper will disappear.

lameduck221201The MORE Act (H.R. 3617) (which has twice passed the House), has been stalled because of the Cannabis Administration and Opportunity Act (CAOA), S.4591, a competing bill introduced by Senators Schumer, Ron Wyden (D-OR) and Cory Booker (D-NJ) last summer. A compromise pot bill was blocked from receiving a unanimous consent Senate vote in September.

While the latest signals indicate that compromise legislation will be less wide-ranging than some initially expected, banking and criminal justice reform appear to remain at the center of the talks. The text of any compromise has yet to be released so it remains unclear what will make it into the final bill.

The negotiations in their current form are leading to “unprecedented levels of optimism” about passing a cannabis reform package by the end of the current Congress, one advocate familiar with the status of negotiations told Marijuana Moment.

Colorado Springs Indy, Landmark bill reaches  president’s desk (November 23, 2022)

Marijuana Moment, Congressional Talks On Marijuana Banking And Expungements Bill Intensify As Advocates Push For Equity Amendments (November 23, 2022)

NORML, NORML Deputy Director Testifies on Marijuana Legalization Before House Subcommittee (November 15, 2022)

– Thomas L. Root

Fraud Takes the Stage at Supreme Court – Update for November 28, 2022

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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.

SCOTUS TO HEAR TWO CRIMINAL FRAUD ARGUMENTS TODAY

Fraud170406The Supreme Court will hear arguments today on two criminal fraud cases that explore whether people who work privately for government officials owe a duty of honest services to the public under what the Wall Street Journal calls “the ill-defined honest-services fraud statute.”

In the first case, former state official Joseph Percoco was serving as campaign manager for former New York Gov. Andrew Cuomo at the time he accepted a $35,000 payment from a real-estate developer to help obtain government approval for a project. The government declared him to be “functionally a public official” because he had clout with state agencies. Thus, the US Attorney said, Joe committed honest-services fraud.

Joe complained in his Supreme Court brief that the 2nd Circuit’s“functionally a public official” rule could have “sweeping implications not only for lobbyists and donors but also for the family members of public officials, who ‘hold unparalleled access and influence’ and whose ‘independent business interests may be in a position to benefit from state action,'” according to SCOTUSBlog.

ambiguity221128The federal prosecutorial approach to fraud has created confusion in lower courts for years. In the last decade, the “right of honest services” has been especially pernicious: nowhere in the statute or a definitive Supreme Court ruling is the “right of honest services” defined.  In fact (as Joe has argued), the Supreme Court’s 2010 Skilling v. United States decision and 2016 McDonnell v. United States have pretty much established that bribery laws are “concerned not with influence in the abstract, but rather with the sale of one’s official position.” Private citizens cannot take official action or use their positions to bring about government action, Joe contends, because they have no such positions. Thus, they cannot violate federal fraud laws.

In Skilling v. United States, the Supreme Court limited criminal liability for fraud to kickback and bribery schemes, but at the time three Justices – Scalia, Thomas and Kennedy – believed the law’s vagueness made it unconstitutional. Lower courts have held that public officials owe a “right of honest services” to their constituents, but the Supreme Court has never ruled that private individuals owe a fiduciary duty to the public.

Last week, the Wall Street Journal complained,

Was Mr. Percoco paid to leverage his political clout? Of course. His simultaneous employment as Cuomo’s campaign manager and a business consultant is certainly sketchy. But the government’s theory… could be used to prosecute any powerful lobbyist, including former lawmakers who don’t act in the putative public interest…This would present First Amendment concerns since citizens have the right to petition their government. It would also impair due process for private citizens who have no way of knowing if they are covered by the honest-services law.

In the second case, the government charged contractor Louis Ciminelli, a Cuomo campaign contributor, with conspiracy to commit fraud by rigging a construction contract for a state-subsidized solar panel plant. A member of a nonprofit overseeing the project drafted the proposal to favor Lou’s construction firm. There was no evidence Lou directed the proposal’s terms, nor that either the state or nonprofit suffered any loss of property as a result of Lou’s firm being chosen.

moneyhum170419But the government claimed Lou defrauded the nonprofit of its “right to control its assets” by “exposing it to the risk of economic harm through false representations about the fairness and competitiveness of the bidding process.” Prosecutors did not produce evidence linking Lou to any bribes or kickbacks. Instead, the prosecutors discussed deprivation of a “right to control”: Lou’s deception deprived the nonprofit board of its right to control the funds and the allocation process.”

As the Wall Street Journal put it, “If you’re struggling to understand the government’s convoluted theory, you’re not alone.”

SCOTUSBlog said Lou’s “main wrongdoing appears to be his ‘sneaking to the front of the line’ in the negotiation process. If the Supreme Court continues its trend of narrowing the scope of federal fraud criminalization, it can do so by eliminating the ‘right to control’ theory of fraud.”

Lou has completed his sentence, while Joe is on home confinement. A Supreme Court win won’t give them back the time they served, but their names could be cleared.

Wall Street Journal, The Supreme Court gets a Fraud Test (November 25, 2022)

SCOTUSBlog, A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting (November 25, 2022)

SCOTUSBlog, Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law (November 27, 2022)

– Thomas L. Root

Right Claim, Wrong Vehicle? – Update for November 23, 2022

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MAGISTRATE THROWS OUT FCI SHERIDAN LOUSY-CONDITIONS HABEAS PETITIONS

judge160620An Oregon federal magistrate judge last week recommended that some 200 habeas corpus actions alleging insufficient medical care at FCI Sheridan be dismissed.

The magistrate judge ruled that the petitioners have been pursuing the wrong legal strategy. Rather than habeas corpus, the inmates “should have worked to address their concerns through other means.

The Opinion and Order stated that while

the Court is sympathetic to Petitioners’ difficult experiences at Sheridan during the pandemic, the Court cannot conclude that merely alleging that no conditions of confinement could satisfy the Eighth Amendment is sufficient to confer habeas jurisdiction under circumstances such as those present here… Petitioners insist that they are challenging the fact of their confinement, but they do not allege that their convictions or sentences are invalid in the first instance or that they are being held in excess of a lawfully imposed term of imprisonment. Instead, Petitioners allege that the harsh conditions at Sheridan place them at risk of serious harm from COVID-19, allegations premised on the conditions, and not the validity, of their confinement… Indeed, Petitioners’ claims “would not exist but for [the] current conditions” at Sheridan.

The Court ruled that the prisoners’ “argument that habeas jurisdiction exists simply because they allege that nothing short of their release may remedy the unconstitutional conditions at Sheridan thus improperly ‘conflates the nature of relief with the substance of the claim.’

Stirling v. Salazar, Case No. 3:20-cv-00712-SB, 2022 U.S. Dist. LEXIS 206892 (D. Or. Nov. 15, 2022)

Oregon Public Broadcasting, Federal judge dismisses claims of mistreatment in Oregon prison as wrong legal strategy (November 17, 2022)

– Thomas L. Root

‘Words’ of Compassion – Update for November 22, 2022

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WORDS MATTER IN COMPASSIONATE RELEASE DECISIONS

Too Few Words Matter: Legally, there’s no limit to how many times a federal prisoner can file a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i)).

judge160425Practically, however, endless and repetitive motions have the remarkable capacity to really infuriate the judge.  Colloquially (and crudely), the correct formula for the number of such filings is

JR = POJ -1

where “JR” = Just the right number of filings and “POJ” = Pissed-off Judge

Some prisoners refile compassionate release motions endlessly, often making the same arguments but expecting a different outcome. Judges often just tune them out.

Bob Handlon filed a compassionate release motion that the court rejected because he had not exhausted administrative remedies by asking the BOP to file on his behalf first. Bob fixed that error and refiled his motion.

The district court denied his second compassionate release motion with a brief order saying only, “After considering the applicable factors provided in 18 USC § 3553(a) and the applicable policy statements issued by the Sentencing Commission, the Court [denies] the Defendant’s motion on its merits.”

A year later, Bob filed a third compassionate release motion, mostly rebutting government claims that he was dangerous but also raising new facts, that he had caught coronavirus again and was now suffering lasting medical problems from “long COVID.”

The district judge, who became impatient with Bob pretty early in the game, it seems, merely made a docket entry denying the third motion “for the same reasons stated in the court’s [previous] Order.”

Last week, the 5th Circuit reversed, holding that the district court had abused its discretion. The fact that Bob raised new facts in his third compassionate release motion made the district court’s terse order a little too little.

afewwords221122“A court cannot deny a second or subsequent motion for compassionate release ‘for the reasons stated’ in a prior denial where the subsequent motion presents changed factual circumstances and it is not possible to discern from the earlier order what the district court thought about the relevant facts,” the Circuit ruled. “Judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.”

A Lot of Words Matter, Too: Terry Rollins was left a paraplegic after a gunshot wound that cost him his right leg. When he was arrested for drug distribution in 2018, police found him septic and malnourished, lying in his bodily wastes. “But for his arrest,” the court said, Terry “likely would have died of his severe wounds and infections.” His condition was so bad that doctors recommend an operation called a “hemicorporectomy, which would ‘essentially cut him in half to remove the infected part of his body,’” the court said.

Terry moved for compassionate release while still in Marshal custody, arguing that he needed extensive surgery and the Marshal Service had already spent more than $1 million without providing him complete medical care.

manyguns190423The district court said Terry’s condition was “dire” but denied compassionate release. The court found Terry’s possession of seven guns and ammunition inside his home along with heroin, cocaine powder and crack were “very serious.” Terry argued that he could hardly be dangerous confined to a wheelchair, but the court noted that Terry’s paraplegia hadn’t kept him from armed drug dealing. Because Terry had not shown “he will no longer pose a threat to the public,” the district court denied his compassionate release motion.

Last week, the 5th Circuit upheld the denial. The Circuit agreed that Terry had made “a colorable argument. The hemicorporectomy “surgery is rare, often fatal, and comes with various complications, even if the procedure is successful… Mr. Rollins will need around-the-clock care for the foreseeable future… Without this grave surgery, Rollins ‘cannot perform basic functions without assistance.’ Rollins is not wrong to suggest that it seems highly unlikely that he will revert to criminal behavior… [and] contrary to the district court’s reasoning, all this indicates that the prison system is not the place that can provide medical care most effectively.”

“Yet,” the 5th admitted, “the abuse-of-discretion standard is a demanding one. It is not this court’s place to question the reasonable judgment of the district court in assessing the § 3353(a) factors.”

The district court used a lot of words, and adequately explained its reasons for denying compassionate release, the Circuit said.

Under the “abuse-of-discretion” standard, that was enough.

United States v. Handlon, Case No. 22-50075, 2022 U.S.App. LEXIS 31669 (5th Cir., Nov. 16, 2022)

United States v. Rollins, Case No. 22-30359, 2022 U.S.App. LEXIS 31870 (5th Cir., Nov. 17, 2022)

– Thomas L. Root

BOP Relents on FSA Credit Takeaway With “Grace” – Update for November 21, 2022

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FSA-ELIGIBLE INMATES HAVE REASON TO BE THANKFUL (EVEN WHILE REMAINING A BIT CONFUSED)

Responding to mounting criticism about the Bureau of Prisons’ messy implementation of the First Step Act’s earned-time credits (ETCs), the BOP last week finally rolled out a program statement articulating its ETC policies.

firststepB180814For those just tuning in, the First Step Act – passed in December 2018 – established a program in which federal inmates could earn credits for successfully completing programs that were designed to reduce recidivism or participating in “productive activities” that are linked to resulting in less recidivism. Those credits (called “FSA credits” [First Step Act credits]) or “FTCs” [“Federal Time Credits) or “ETCs”) could be used by prisoners to reduce their sentences by up to 12 months or earn more time in halfway houses or home confinement. Although disrupted by the COVID pandemic and chronic staffing shortages, the BOP has been implementing the ETC program in fits and starts.

The latest snafu came in the implementation of a computer system to automatically calculate each prisoner’s ETCs (“Auto-Calc”). The system – planned for August 1 but actually launched the last week of September – automatically rescinded a lot of ETCs already granted, mostly because inmates had not completed online “needs assessment” surveys a year or more before, “surveys” that neither they nor the staff knew were mandatory in order to earn ETCs.

oddcouple210219Earlier last week, Senators Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, and Senator Charles Grassley (R-IA), ranking Republican on the Committee, jointly wrote to Attorney General Merrick Garland criticizing the BOP for (1) Auto-Calc’s having rescinded previously-awarded ETCs for some prisoners; (2) setting an arbitrary rule that the BOP would stop applying ETCs to the up-to-12 months’ sentence reduction when inmates are 18 months from the door; (3) not granting ETCs to people in halfway house and home confinement; and (4) failing to clean up the PATTERN risk assessment tool to address “unjustified disparities that have arisen.”

The BOP responded to Durbin and Grassley with alacrity (a sentence I never thought I’d write). As noted, when Auto-Calc came online, many prisoners who had seen their release dates move up due to award of ETCs months before suddenly lost some or all of their time because they had not completed online needs assessment surveys in 2020 and 2021. Of course, the BOP never told inmates that completion was mandatory if inmates wanted to earn credits. The BOP itself admitted that nearly half of staff interviewed for a March report indicated no familiarity with, or declined comment on, the needs assessment process and FSA incentives policies,” according to Forbes magazine.

In a press release issued Friday, the BOP said, “With the automation, some inmates noticed their time credit balance decreased due to incomplete needs assessments and/or declined programs. This policy includes a grace period, available until December 31, 2022, for inmates who have not completed all needs assessments or who have declined programs to try to address these issues. Beginning January 1, 2023, any incomplete needs assessments or any declined to participate codes will lead to the inmate not earning FTCs in accordance with the federal regulations.”

grace221121So people in federal custody now have until New Year’s Eve to figure out what needs assessments they “failed” to complete and to get them done.

The “grace period” policy is not written into the new Program Statement, suggesting that it is an 11th-hour change. Its absence from the Program Statement is a little worrisome: no one relishes going to court to enforce the terms of a press release.

Although the Program Statement doesn’t say anything about “grace” as such, it does contains a lot:

•   Every eligible prisoner with a low or minimum PATTERN score will receive a conditional projected release date based on the maximum number of ETCs he or she can earn during the sentence.

•   Prisoners remain eligible for ETCs even those locked up in the Special Housing Unit, unless they are in disciplinary segregation.

•    Productive activities have been defined in greater detail. Besides the “structured, curriculum-based group programs and classes” already defined in the First Act Approved Programs Guide, the new Program Statement provides examples such as “recreation, hobby crafts, or religious services,” visitation, ACE classes, institution work programs, community service projects, and even participation in an FRP plan.

The Program Statement provides little clue as to who determines which unstructured activities will count as “productive activities.” It only says, “Additional groups, programs, classes, or unstructured activities may be recommended to assist the inmate in establishing positive institutional adjustment and involvement in pro-social activities. The inmate’s risk level, needs assessment results, and program recommendations will be documented on the inmate’s Insight Individualized Need Plan, and the inmate will receive a copy.”

That suggests the BOP line employees will determine what unstructured programs will count, but it does not explicitly say that. The omission provides an excellent opening for confusion and unwarranted denial of ETC credit as managers at 122 separate BOP facilities define what is a productive activity in 122 different ways.

•  The Program Statement says “inmates with unresolved pending charges and/or detainers may earn FTCs, if otherwise eligible, but “they will be unable to apply them” to sentence reduction or halfway house/home confinement “unless the charges and/or detainers are resolved. An inmate with an unresolved immigration status will be treated as if he/she has unresolved pending charges with regard to the application of FTCs.”

So good news here: The BOP has consistently been defining inmates with detainers as being ineligible to even earn ETCs. Now, detainers will no longer prevent people from earning ETCs. But for some reason, the BOP continues to refuse to use ETCs for sentence reduction when people have detainers.

• The Program Statement makes it clear that inmates with medium/high PATTERN scores may earn ETCs, but that they cannot use them unless they work their way down to low or minimum risk assessment status.

What the Program Statement does not mention is how people in halfway houses or on home confinement can earn ETCs, despite the fact the First Step Act and the BOP’s own final rules contemplate it. In fact, reference to “community service projects” and “religious services” as unstructured activities seems to be perfectly suited for people on prerelease custody.

In the Merrick Garland letter, Senators Durbin and Grassley complained that the BOP has no mechanism to allow people on prerelease custody to earn ETCs.

makingitup221121Also unmentioned in the Program Statement is the BOP’s “18-month rule” that inmates with 18 months or less remaining on their sentences may not apply ETCs towards reducing their sentences. Senators Durbin and Grassley complained in their letter that the 18-month rule “is not supported by the FSA, nor does it further the FSA’s goal of incentivizing recidivism reduction programming for returning persons. Moreover, under this guidance, any federal prisoner with a sentence of 18 months or less would be unable to earn an earlier release date. BOP should therefore not implement an arbitrary cutoff on earning ETCs toward release.”

U.S. District Judge Lorna G. Schofield granted habeas corpus last week to a prisoner who complained that the BOP had arbitrarily refused to apply any of his ETCs earned after January 2022 to a shortened sentence. The BOP explained that it was not applying any ETCs to a reduced sentence once the inmate was within 18 months of release.

Judge Schofield ordered the BOP to apply the prisoner’s ETCs to a shortened sentence up to the 365-day limit. She ruled,

Letter to Attorney General (November 16, 2022)

Forbes, U.S. Senators Express Concern With Bureau Of Prisons’ Implementation of First Step Act (November 17, 2022)

BOP, P.S. 5410.10, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (November 17, 2022)

BOP, First Act Approved Programs Guide (August 2022)

Brodie v. Warden Pliler, 2022 U.S.Dist. LEXIS 202749 (S.D.N.Y., Nov 7, 2022)

– Thomas L. Root

A Rare Sentencing Reversal on Evidentiary Failing – Update for November 18, 2022

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WHEN ‘SOME’ CAN BE ENOUGH

Antwain Moore was sentenced to 120 months for multiple drug offenses. One factual foundation for the sentence was the district court’s finding that the 56 grams of methamphetamine found in Antoine’s house were 100% pure. At sentencing, Antwain submitted an affidavit from a chemist that slammed the DEA’s lab technique for measuring purity as pure bunk.

madscientist221118The district court was unimpressed. When the DEA argued that the defendant’s expert affidavit was “not conclusive that the government’s procedures were improper or led to a bad result” and that “the DEA’s testing procedures are well accepted in the scientific community.” After all, the government said, Antwain could have retested the methamphetamine himself, but he did not.

On appeal, Antoine argued that a chemist’s affidavit he submitted met the “some evidence” standard sufficient to call into doubt the government’s purity claim, especially where the government did not bother to rebut his expert’s claim with evidence of its own.

Antwain’s chemist said in his affidavit that the DEA’s purity test method, comparing the meth sample to a reference graph could not yield a reliable result. Instead, the chemist said, the meth had to be tested against an actual meth sample of known purity. If Antoine’s argument was right, his guideline sentencing range would fall from 130-162 months in prison to 77-96 months.

He got slammed with 120 months.

Last week, the 7th Circuit reversed. “If Antwain had done nothing more by way of objection,” the Circuit said, “he would have offered what we have repeatedly described as only a ‘bare denial’ of the presentence report information, which ordinarily is not enough to shift the burden of production or to require a hearing.”

destroyevidence200615But Antwain did offer more than a bare denial. “He offered the opinion of an independent expert about the reliability of the DEA’s test results. Dr. Beauchamp explained that the DEA’s results were potentially inexact and inconsistent, pointing out in particular that the DEA’s report did not enable him to determine whether the purity level of drugs was consistent throughout the 55.6 grams.” To rebut this, the DEA offered only an evidence-free argument.

Noting that Antwain “has a due-process right to be sentenced based on reliable information,” the 7th ruled that the district court was wrong to hold that “there was no indication here or no evidence before the Court that the DEA protocols are not reliable.” In fact, the only evidence in the record was that those protocols were unreliable.

“The government submitted DEA test results that were not supported by any affidavit,” the Circuit wrote. “When the reliability was questioned in Dr. Beauchamp’s affidavit, the government chose to rest on an assumption that the district court adopted: that the DEA has reliable and generally accepted methods of testing drug purity. We assume that’s probably true as a general matter, but in a particular case, a defendant whose liberty is at stake is entitled to hold the government to its burden of proof by a preponderance of reliable evidence. An unsupported assumption does not tell us anything about whether test results in a particular case can reasonably be relied upon.”

Hearsayevidence210809The 7th held that “when the government relies on hearsay — such as the laboratory results here — and a defendant raises a plausible objection about whether its contents are indeed reliable, the government can reasonably be required to provide more of a foundation.”

Antwain’s case was remanded for resentencing.

United States v. Moore, Case No. 21-2485, 2022 U.S. App. LEXIS 30831 (7th Cir., Nov. 7, 2022)

– Thomas L. Root

SCOTUS to Review Identity Theft Overreach Claim – Update for November 17, 2022

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SCOTUS WILL DECIDE MEANING OF IDENTITY THEFT

The aggravated identity theft statute (18 U.S.C. § 1028A) provides in part that anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”

Who could be opposed to that? Everyone knows what identity theft is. Computer hacking, tricking old people, credit card skimming… those bums have it coming, and § 1028A is what’s going to give it to them.

Except… as with any good federal statutory idea, there are those people who will run it into the ground. Look at the PATRIOT Act.  Everyone in Congress thought the expanded police powers were a wonderful thing, because of course law enforcement would never use those tools against Americans in plain vanilla criminal cases.  It was only the terrorists who needed to look out.

The same with identity theft.  You may think you know what identity theft is, using some other person’s identity in the process of committing another crime. David Dubin was convicted of Medicaid fraud. He was also convicted under 18 U.S.C. § 1028A for aggravated identity theft, Federal prosecutors contend that Dubin’s use of his patient’s name on false Medicaid claims violated the aggravated identity statute, adding an extra two years to his one-year sentence for fraud.

Dubin’s conviction and sentence were upheld by the 5th Circuit in a very divided en banc decision, but last week, the Supreme Court granted review.

IDthief221117In an amicus brief supporting grant of certiorari, The National Association of Criminal Defense Lawyers complained that the 5th Circuit, “disregarding this Court’s directive, the reasoning of the majority of its sister circuits that have considered the issue, and the statute’s title and unmistakable purpose, the 5th Circuit adopted the broadest possible reading of Sec. 1028A to bring appellant’s conduct within the statute. This approach defies common sense and sanctions the ill-advised prosecutorial overreach that this Court has continually rejected.”

The case will be decided by the end of next June.

Dubin v. United States, Case No. 22-10, 2022 U.S. LEXIS 4925 (Nov. 10, 2022) (certiorari granted)

– Thomas L. Root

Adding a Dollop of Uncertainty to the Already Conflicted Anders Brief – Update for November 14, 2022

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3RD CIRCUIT MUDDLES ANDERS BRIEF STANDARDS

Many prisoners have become belatedly familiar with the concept of the Anders brief, an appellate brief filed by an attorney looking to be relieved of further representation because he or she believes the defendant has no decent issues to raise. In the brief, which takes its name from the Supreme Court case Anders v. California, the attorney is expected to identify potential issues and explain while raising them would be frivolous.

The inverse of an Anders brief, where the lawyer wants to be found innocent by arguing that his client is guilty.
The inverse of an Anders brief, where the lawyer wants to be found innocent by arguing that his client is guilty.

If a defendant’s lawyer files an Anders brief, the defendant is entitled to file a pro se response, arguing that the issues have merit or that the attorney has missed other issues that are solid. If the appeals court accepts the Anders brief arguments, the appeal is dismissed. If the appeals court finds the Anders argument deficient, the defendant’s appeal will go forward, usually with a new attorney representing the prisoner.

I have never thought much of the Anders procedure.  The notion that the attorney for the defense is arguing to an appellate court that his or her client’s appeal is meritless seems to me to be the very antithesis of zealous representation. Add to that the very real psychological aspect: the attorney has decided to bail from the case, meaning that the entire approach of the brief is to convince the court that the lawyer should be released rather than the client.

In law school, we were taught the difference between legal briefs and legal memoranda. A brief was used to argue that your client’s case should win. On the other hand, a memorandum was intended to be a dispassionate recitation of the facts and law, a document to be used in the office to assess the strengths and weaknesses of a client’s case and develop a strategy for achieving the best outcome for the client.

An Anders brief should really not be a brief at all, but rather a memorandum. At a minimum, it’s hard to advocate for your own interests and against your client’s – which, after all, is what an Anders brief does – while trying to appear that that’s not what you’re trying to do. Writing the Anders brief as a memorandum instead of a brief, however, while fairer to the client is less fair to the lawyer (if we should care about that). The memorandum should not advocate for one position over another, which is exactly what the attorney is trying to accomplish in arguing that he or she should be permitted to walk from the case.

paradox221114On top of all of that, attorneys filing Anders briefs confront a paradox. “On the one hand,” as the 3rd Circuit held last week, “to discharge her obligations under Anders, precedent and our Local Rules require counsel to identify all issues that might ‘arguably support’ the defendant’s appeal – only to explain why those issues are frivolous. On the other hand, we have advised that counsel need not raise every frivolous issue. That paradox is even more confounding where a defendant subsequently files a pro se brief raising frivolous issues that counsel did not address.”

Gang-banger Rick Langley got charged with a crack cocaine distribution conspiracy.  He made a plea deal with the government to plead to one count for a recommended 60-month sentence. At sentencing, the court calculated that his Guidelines sentencing range was really more like 110-137 months, but in deference to the plea deal, the Court sentenced him to the 60 months he had agreed to.

The case was pretty plain vanilla, and just about any appellate attorney would agree there was not much to work with on appeal. But Rick wanted to appeal, so the Court appointed a lawyer to represent Rick’s tilt at the windmill.  Rick’s lawyer asked to withdraw and filed an Anders brief.

That is, if your lawyer's name is Jack...
That is, if your lawyer’s name is Jack…

Last week, the 3rd Circuit accepted the brief and let Rick’s lawyer hit the road. Admitting that its prior decisions on Anders briefs were all over the map, the 3rd explained “that counsel’s failure to address issues raised in her client’s pro se brief does not render an Anders brief inadequate per se. It may be relevant, however, in illustrating a more general failure to identify and discuss potentially appealable issues, in highlighting counsel’s failure to raise non-frivolous issues identified by the defendant, or in otherwise demonstrating that counsel has failed to provide sufficient indicia that she thoroughly searched the record and the law in service of her client.”

The Circuit admitted that “what constitutes ‘sufficient indicia’ of a conscientious examination cannot be laid down in a formulaic manner, as it will vary with the nature of the proceedings in the district court.”

So, the 3rd said, the adequacy of your attorney’s excuse for abandoning your appeal is a lot like Potter Stewart’s definition of obscenity: the court will know it when it sees it.

United States v. Langley, Case No. 21-2114, 2022 U.S. App. LEXIS 30809 (3d Cir., Nov. 7, 2022)

– Thomas L. Root