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

CAPTAIN OBVIOUS

Two cases decided last week serve as reminders that some arguments are so obviously futile as to constitute a waste of everyone’s time.

Anthony Shockey violated supervised release by using methamphetamine. Use of a controlled substance is a Grade C violation, but new criminal conduct is a Grade B or A violation. His probation officer charged him with possession of meth, a violation of state law. Tony argued to the judge that he had not possessed the meth, just used it.

Guess how that turned out.

The district court found a Grade B violation, and imposed a prison term. On appeal, Tony Shockey contended that his use of meth did not require a finding that he also possessed it. The 7th Circuit would entertain none of that. “The district court reasonably could infer possession from use,” the Circuit said. “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.”

Meanwhile, in the Western District of New York, George Moses had a proffer deal with the government. The government says that he lied through his teeth, so much so that it obtained a superseding indictment accusing him of making false statements to federal agents.

George moved to dismiss the new counts, arguing that the proffer agreement was ambiguous about whether the government could prosecute him for any lies he told, and the ambiguity should be resolved in his favor. Last week, the district court refused to throw out the counts.

The Court noted that in the proffer agreement, George had “agreed to provide complete and truthful information regarding any and all criminal matters of which the witness may have knowledge.” Under the agreement, the government could demand George take a polygraph. And paragraph 5 provided that while the information he provided could not be used against him, “any statements… provided by the witness may be used against the witness in a prosecution for perjury, making false statements or obstruction of justice.”

The district court said that plainly, the parties’ intention gleaned from the the proffer agreement was that George would tell the truth during the proffer session. “The agreement repeatedly makes it clear that Defendant must be truthful at the proffer session,” the district judge wrote. “That was the bargain struck by the parties. To interpret the agreement in the manner urged by Defendant would constitute a tortured reading of the proffer agreement that would ultimately permit Defendant to lie with impunity at the proffer session in direct contravention of the purpose of the agreement.”
Yeah, that was pretty obvious.

United States v. Shockey, 2019 U.S. App. LEXIS 31474 (7th Cir. Oct. 22, 2019)

United States v. Moses, 2019 U.S. Dist. LEXIS 181823 (WDNY Oct. 21, 2019)

– Thomas L. Root