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Trending Now… Running Out of Lawyers and Poor People – Update for February 13, 2026

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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.

LEGAL TRENDS YOU SHOULD KNOW

This is where current events affect federal prisoners.

Government Running Out of Troops:  Generally, federal prisoners and defendants would think that the fewer resources the government has to throw against them, the better. Whether that’s true may soon be put to the test.

The ranks of skilled litigators in US Attorneys’ offices (USAOs) nationwide – especially on the criminal side of the office – have been gutted by resignations over what many Assistant United States Attorneys complain is “efforts by senior department leaders to push career prosecutors into doing Mr. Trump’s bidding,” according to The New York Times.

The DOJ’s workforce declined by 8% between November 2024 and November 2025, according to Office of Personnel Management data. At the same time, USAOs have lost 14 pct of their employees, “a staggering one-year reduction unlike anything the department has seen in recent memory,” The Times reported that former officials said. “Worse still, the departures have hit the upper tier of prosecutors in premier offices the hardest, simply because those with the most experience were the most likely to have lucrative job prospects on the outside.”

In a little-noticed 8th Circuit filing last week, the U.S. Attorney for the District of Minnesota, Daniel Rosen, says his short-staffed office has been abandoning “pressing and important priorities” to manage the flood of immigration cases stemming from Operation Metro Surge, the Trump administration’s mass deportation push in the Twin Cities, which is now ending.

Rosen said his office is buckling under the crushing weight of hundreds of emergency lawsuits filed by immigrants detained by ICE in recent weeks. He said 427 had been filed in January alone, and that the pace is expected to continue into February.

In a filing accompanying Rosen’s statement, DOJ attorneys wrote that the “crushing burden” caused by immigration cases had led US attorneys nationwide to “shift resources away from other critical priorities, including criminal matters.”

Rosen said his team of attorneys handling civil litigation is “down 50%” — a reference to a wave of resignations and departures at the start of Operation Metro Surge — and that those who remain “are appearing daily for hearings on contempt motions.”

I have been seeing an increasing number of unusually long-date requests for extension of time from USAOs to respond to prisoner § 2255 motions and compassionate release cases. At the same time (although this is very hard to quantify), it seems to me that the quality of legal scholarship in government filings has fallen.

SCOTUS Running Out of IFP Filers:  The National Law Journal reported last week that “a large pool of cases at the U.S. Supreme Court has been drying up in recent years, and experts aren’t sure why.” Appeals from indigent litigants (“in forma pauperis” or “IFP” filers) have fallen precipitously over the past several Supreme Court terms and are now at their lowest level in the 21st century.

In its most recent term, SCOTUS received around 2,500 appeals from indigent petitioners, fewer than half the number of indigent appeals from six years ago, and about a third of the number filed 20 years ago. Historically, IFP filings have accounted for the majority of annual cases filed in the Supreme Court. In the October 2006 term, for example, 7,132 IFP filings came in compared to 1,723 cases filed by paying petitioners.

“Despite this,” the NLJ said, “the Supreme Court overwhelmingly chooses to take up cases from the paid docket, rejecting all but a handful of IFP appeals each year… In the October 2006 term, for example, the court granted certiorari, or review, of 15 petitions filed by indigent litigants. By contrast, the court accepted just four in forma pauperis petitions during its most recent completed term.”

Politico, Top Minnesota prosecutor says ICE cases are sidelining ‘pressing priorities’ (February 5, 2026)

The New York Times, Demanding Support for Trump, Justice Dept. Struggles to Recruit Prosecutors (February 7, 2026)

National Law Journal, At the Supreme Court, a Stark Drop in Appeals From the Poor (January 29, 2026)

~ Thomas L. Root

Supreme Court Separates 924(c) and (j) – Update for January 15, 2026

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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.

ONE TO A CUSTOMER

Cigarettes are bad for you, whether you’re smoking them or stealing them. Dwayne Barrett found that out too late. But his campaign to stamp out smoking by robbing vendors of their tobacco products led to a Supreme Court decision yesterday on the reach of the federal criminal code’s harsh and unforgiving gun penalty statute.Dwayne and his gang – unimaginatively just called the “Crew” – committed a series of at least eight robberies in New York, New Jersey and Pennsylvania between August 2011 and January 2012. Their niche was knocking over convenience stores and illegal cigarette vendors, guys who sell untaxed cowboy killers smuggled from southern states at a discount because the merch is untaxed. Such people made good marks for Dwayne and his Crew because the victims can hardly file police reports.

But it’s hard to hide a heist from the authorities when someone gets killed. During one robbery, Dwayne and two other Crew members stuck up three guys selling untaxed cigarettes out of the back of a minivan. Brandishing guns, two of the Crew hijacked the minivan and drove off with one of the victims, Gamar Dafalla, still aboard. Mr. Dafalla surreptitiously threw $10,000 in sales proceeds out of the moving vehicle. Enraged by this, the Crew member shot Mr. Dafalla to death.

Dwayne was following the van in a car, so he wasn’t present when the killing occurred, but he was charged with the robbery, with tried to prevent his merchandise from being stolen.

Dwayne was convicted of Hobbs Act robbery and conspiracy, as well as several 18 USC § 924(c) counts for using guns to commit the robberies (crimes of violence under § 924(c)). In the case of the death of Mr. Dafalla, Dwayne was convicted of both a § 924(c) count – because his co-conspirator was using and carrying a gun during the robbery – and an 18 USC § 924(j) offense (because death resulted from the § 924(c) conduct). Thus, he was convicted under both statutes for the same act, essentially treating the gun use that caused Mr. Dafalla’s death as a basis for two separate convictions.

Dwayne was sentenced to 90 years in prison, later reduced to 50 years. Twenty of those years came from concurrent sentences on three Hobbs Act robbery counts. Twenty-five years came from a consecutive term on the § 924(j) conviction, into which the District Court – believing that § 924(c) and § 924(j) were not separate offenses that could be punished cumulatively – merged into the § 924(c) conviction.

The Second Circuit, however, rejected the District Court’s position that the Double Jeopardy Clause required it to treat § 924(c) and § 924(j) as the same offense. Although the Government regularly concedes that § 924(c) and § 924(j) overlap and may not be punished cumulatively and qualify as the same offense under the governing test laid out in Blockburger v. United States, it convinced the Circuit that the two provisions “are separate offenses for which Congress has clearly authorized cumulative punishments.”

The 5th Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” In the 1932 Blockburger decision, the Supreme Court directed reviewing courts to evaluate whether one criminal statute required proof of any element that another did not.  If no different proof was needed, double jeopardy barred additional prosecution and punishment.

While Congress may pass two different statutes directed at prohibiting the same offense, the Blockburger presumption holds that Congress ordinarily does not intend to do so. This means that courts must find evidence of Congress’s intent before finding that different statutes punish the same crime, and thus that a defendant cannot be charged or punished for violating both under Blockburger.

Yesterday, the Supreme Court sided with Dwayne and the District Court, applying the Blockburger presumption that Congress did not clearly authorize convictions under both §§ 924(c) and (j) for a single act that violates both provisions. In other words, one conviction and one sentence for one violation. One to a customer.

Blockburger addresses whether multiple convictions, not just multiple sentences, are allowed by the 5th Amendment. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes, where punishment means a criminal conviction and not simply the imposition of sentence.

When enacted, § 924(c) made it a discrete offense to use or carry a firearm in connection with a predicate federal crime of violence or drug trafficking crime. Congress later added § 924(j) to provide a different penalty scheme for § 924(c) violations that cause death. Section 924(j) has no mandatory minimums, the Supreme Court observed, but instead authorized significant maximum sentences – including the death penalty or life in prison – when the underlying violation is murder committed with a gun.

In a unanimous opinion (but for a partial concurrence by Justice Neil Gorsuch, Justice Ketanji Brown Jackson wrote that § 924’s text “suggests strongly, perhaps conclusively,” that Congress did not disavow Blockburger here. Congress included Blockburger-surmounting language twice within § 924(c) itself: It mandated that a § 924(c)(1) conviction must be “in addition to the punishment provided for” the underlying violent or drug crime and it also mandated that a conviction under § 924(c)(5)—for using or carrying armor piercing ammunition—must be “in addition to the punishment provided for” the conviction under” § 924(c)(1).

Such “in addition to” language has previously been found to be “crystal clear” evidence of a legislature’s intent to overcome Blockburger. But Congress used no similar language with respect to the interplay between subsection (c)(1) and subsection (j).

Dwayne’s case could have implications for future convictions across the country.

Gorsuch argued in his concurrence that the Court has been confusing about double jeopardy in the past. The Supreme Court has at times said the clause “protects against multiple punishments for the same offense,” he wrote, and has held that multiple convictions for the same offense constitute multiple punishments, even when secured in a single proceeding. “From this, it would seem to follow that Congress cannot authorize multiple convictions for the same offense in concurrent prosecutions. But this Court has also sometimes said that, in the concurrent-prosecution context, the Clause merely directs courts to ascertain statutory meaning accurately,” Gorsuch wrote.

He said the court will someday need to resolve that “tension.”

Barrett v. United States, Case No. 24-5774, 2026 U.S. LEXIS 433 (January 14, 2026)

Blockburger v. United States, 284 U.S. 299 (1932)

The National News Desk, Supreme Court limits dual charges in overlapping gun statutes (January 14, 2026)

~ Thomas L. Root

March Will Bring Cherry Blossoms and Supreme Court Arguments – Update for January 5, 2026

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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 SCHEDULES ARGUMENT ON TWO CRIMINAL CASES OF NOTE

The Supreme Court has issued its February oral argument schedule, including two cases of substantial interest to federal defendants and prisoners.

The two arguments actually fall the first week of March, not in February… but then this is the Supreme Court, where the last week of next June will still be “October Term 2025.” Nevertheless, we can be confident that before the cherry blossoms bloom along the Tidal Basin, we may have some idea of the high court’s thinking on two consequential criminal cases now before it.

The cases:  First, the one not getting much press but arguably the more important of the two is Hunter v. United States, a case that asks whether a federal appeals court properly dismissed a Texas man’s appeal of a mandatory-medication condition when he had waived his right to appeal as part of his plea agreement, but the judge who imposed the condition told him that he had a right to appeal.

The importance is this: Something like 94% of federal criminal cases end in guilty pleas, and virtually all of those pleas are entered pursuant to a written plea agreement between the defendant and the government. And virtually all of those agreements have the defendant agreeing to waive his or her rights to appeal, to file post-conviction attacks on their conviction and sentences, and to give up other rights – such as to seek compassionate release or even bring a Freedom of Information Act request for records from the government.

The Hunter issues before the Supreme Court include what, if any, are the permissible exceptions to waiver in a plea agreement, now generally recognized as only being claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum. A second issue is whether an appeal waiver applies when the sentencing judge advises the defendant that he or she has a right to appeal and the government does not object.

The Supreme Court case getting more attention is United States v. Hemani, in which the government is challenging a 5th Circuit ruling that 18 USC § 922(g)(3) – that prohibits an “unlawful user” of a controlled substance from possessing a gun – violates the 2nd Amendment as applied to the defendant. Mr. Hemani was a regular marijuana user but was not high while in physical possession of his handgun.`

Law Professor Joel Johnson, a former Supreme Court litigator with the Dept of Justice, recently argued in a SCOTUSBlog post that the Supreme Court could easily dispose of the Hemani case by relying on the rule of lenity instead of the 2ndAmendment. He said, “If the court decides that the law applies only to people who are armed while intoxicated, the 2nd Amendment concerns largely vanish. There is stronger historical support for disarming someone who is high – and thus not of sound mind – than there is for disarming someone who happened to smoke a joint last weekend but is no longer impaired.”

Also in a SCOTUSBlog post, NYU Law Professor Danial Harawa argued for a revival of the rule of lenity:

Congress has enacted thousands of criminal laws, many written broadly and enforced aggressively. With an overly bloated criminal code, lenity should function as a meaningful check – a reminder that punishment must rest on clear legislative authorization… At bottom, the rule of lenity is about who bears the risk of uncertainty in the criminal law. For most of the court’s history, that risk fell on the government. When Congress failed to speak clearly, defendants were entitled to the benefit of the doubt. If it wanted, Congress could rewrite the law to clarify its reach. There is no cost for congressional imprecision, however, and thus no real need for Congress to legislate carefully and clearly. When lenity is weakened, the cost of ambiguity shifts from the government to defendants, and the result is more defendants. Given the pedigree and importance of this rule, the Supreme Court needs to resolve when the rule applies sooner rather than later.

Second Amendment advocates and scholars hope that Hemeni will advance the 2nd Amendment debate begun by Heller, Bruen, and Rahimi. But even if it does not, it may provide some enduring guidance on the rule of lenity, an issue of less sexiness but perhaps more import to criminal law.

SCOTUSblog, Court announces it will hear case on gun rights among several others in February sitting  (January 2, 2026)

Hunter v. United States, Case No. 24-1063 (oral argument set for March 3, 2026)

United States v. Hemani, Case No, 24-1234 (oral argument set for March 2, 2026)

SCOTUSblog, An off-ramp for the court’s next big gun case (December 18, 2025)

SCOTUSblog, Reviving Lenity (December 26, 2025)

~ Thomas  L. Root

Meanwhile, in the Supreme Court Certiorari Petition Pile – Update for November 20, 2025

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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.

MORE FUN WITH SCOTUS

The Supreme Court has relisted a case that asks whether sentencing decisions based on uncharged, acquitted, or dismissed conduct violate the 5th and 6th Amendments.

A “relist” means that the Court could not decide whether to hear the case at its initial conference and has relisted it to consider it again. Cases rarely get picked for review without being relisted one or more times.

In 2023, the Supreme Court relisted a group of about 10 cases asking the same question before denying review to all of them at once at the end of the term in July.

In other news, the Supreme Court will consider Melynda Vincent’s petition for certiorari that asks whether 18 USC § 922(g)(1)’s felon-in-possession provision violates the 2nd Amendment by prohibiting her from acquiring a gun. Vincent was convicted of bank fraud 15 years ago for writing some bad checks while in the throes of drug addiction. Since then, she cleaned up, graduated from a drug treatment program, earned an undergraduate degree and two graduate degrees, and founded the Utah Harm Reduction Coalition – a nonprofit organization for drug treatment and criminal-justice reform – and a mental health counseling service, Life Changes Counseling.

Bartunek v. United States, Case No. 25-5720 (petition for certiorari pending)

Vincent v. United States, Case No. 24-1155 (petition for certiorari pending)

~ Thomas L. Root

You Don’t Have to Cheat Someone Out of Money to Commit Wire Fraud – Update for May 27, 2025

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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.

STAM’S SCAM SLAMMED

Savingmoney250527The Supreme Court last Thursday upheld the fraud conviction of painting contractor Stamatios Kousisis. Stam got two government contracts that required him to work with disadvantaged business enterprises (DBEs), companies owned by racial minorities.

Stam set up a scam, a “pass-through” DBE company that was supposed to be supplying paint but really was just a front. Stam bought the paint, sold it to the DBE and then bought it back for a small markup that the minority “front” man got to keep for his part in the scam.

The catch was that Stam’s bid – with the sham DBE “front” – was below everyone else’s. As a result, the government paid less than it would have if it had accepted a bid from one of the other contractors who put their bids together with a legitimate DBE. The government charged Stam with wire fraud under the theory that he had fraudulently induced Pennsylvania to save money by contracting with him based on his claim that he was working with a real DBE. Stam argued that under the fraudulent inducement theory, the government had to show Stam intended to harm the government financially, which the government could not do.

The 3rd Circuit held that DBE participation in the deal was “an essential part of the contract,” and that was good enough to establish wire fraud, even if the government did save money. Last week, the Supreme Court agreed.

dbe250527The Supremes held that wire fraud simply requires someone to “devise” a scheme to “obtain money or property” through “false or fraudulent pretenses, representations, or promises.” The fraudulent-inducement theory, Justice Barrett wrote, does that: By using “a pass-through entity,” she said, Stam “‘devised’ a ‘scheme’ to obtain contracts through feigned compliance with PennDOT’s disadvantaged-business requirement.” The goal of the scheme was to obtain “tens of millions of dollars” from PennDOT by “making a number of ‘false or fraudulent… representations’ — first about their plans to obtain paint supplies from [the DBE] and later about having done exactly that.”

Fraud160811Obtaining money or property must be the goal of the wire fraud scheme, SCOTUS said, but the scheme does not “depend[] on economic loss.” The unanimous Court (with three concurring opinions) acknowledged that the wire fraud statute potentially has a “broad” sweep, “[b]ut Congress enacted the wire fraud statute, and it is up to Congress—if it so chooses—to change it.”

Kousisis v. United States, Case No 23-909, 2025 U.S. LEXIS 1982 (May 22, 2025)

SCOTUSBlog, Court upholds federal fraud conviction even without economic harm (May 22, 2025)

– Thomas L. Root

SCOTUS Starts October 2024 Term With A Docket That Leaves Plenty of Space for New Cases – Update for October 8, 2024

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NEW SUPREME COURT TERM LEAVES PLENTY OF ROOM ON DOCKET FOR GUNS, ELECTIONS AND TRUMP

Yesterday was the first Monday in October, and everyone knows what that means. The Supreme Court’s new season, known as October Term 2024, began its nine-month run with a couple of dry-as-toast non-criminal oral arguments.

vacationSCOTUS180924At this point, there are not many cases of interest on this year’s Supreme Court docket for federal criminal law followers. But the ABA Journal last week reminded readers that “a year ago, the 2023-24 term looked like it might be relatively sleepy. But that was before the court added cases on guns, abortion medication and two matters involving former President Donald Trump and the Jan 6, 2021, riot…”

The SCOTUS news for readers of this blog was released last Friday, when the Justices announced 15 new cases they would hear this term, all coming out of last week’s annual “long conference,” the annual culling of certiorari petitions that marks the end of SCOTUS’s summer recess.

Four of the certiorari grants involved criminal law issues. The only substantive federal criminal statute case is Thompson v. United States, which asks whether 18 USC § 1014 — making a “false statement” to influence certain financial institutions and federal agencies — also prohibits making a statement that is misleading but not false.

In Barnes v. Felix, the court will consider (in the context of a civil rights suit) whether the 4th Amendment, which prohibits police from using “unreasonable” force, depends on “the totality of the circumstances” or just under the “moment of the threat.” The reasonableness of an officer’s actions for 4th Amendment purposes is a fact-intensive inquiry. The question is whether the entire encounter with the person who is later contesting the seizure is examined in gauging whether the officer’s force is appropriate or whether only what happened in the narrow window when the officer’s safety was threatened is at issue.

In Perttu v. Richards, the issue is the technical but consequential question of whether under the Prison Litigation Reform Act, prisoners have a right to a jury trial concerning their exhaustion of administrative remedies where disputed facts regarding exhaustion are intertwined with the underlying merits of their claim.

Finally, Gutierrez v. Sanz, a capital case, deals with standing issues in conjunction with efforts by a state defendant to secure post-conviction DNA testing.

gunknot181009One issue sure to make it onto the Supreme Court docket is the constitutionality of 18 USC § 922(g). The leading case on the question of the constitutionality of the felon-in-possession statute, § 922(g)(1) – the 3rd Circuit Range v. Garland en banc decision – was remanded by SCOTUS in light of United States v. Rahimi last spring. The 3rd Circuit will hold oral argument on Range tomorrow.

So far this past summer, three circuits have grappled with Rahimi, resulting in three different approaches. Last August, the 8th Circuit held in United States v. Jackson that § 922(g)(1) was constitutional. A few weeks later, the 6th Circuit ruled in United States v. Williams that § 922(g)(1) is constitutional on its face and as applied to “dangerous people,” but not necessarily to all felons. On Sept 18, the 5th Circuit held in United States v. Diaz that § 922(g)(1) was constitutional as applied to a defendant once convicted of stealing a car based on the fact that 18th-century laws “authoriz[ed] severe punishments for thievery and permanent disarmament in other cases.”

mario170628Meanwhile, in Greene v. Garland, a case brought against the Dept of Justice by a Pennsylvania district attorney who is a registered medical marijuana user but wants to possess a gun, DOJ attorneys argue that the nationwide ban on marijuana users owning guns is constitutional, saying it aligns with other restrictions on gun ownership by dangerous, mentally ill or intoxicated people.

The DOJ’s position makes some sense here. Everyone knows how dangerous a district attorney can be…

SCOTUSBlog.com, Justices take up “false statement” dispute and rare capital case (October 4, 2024)

Thompson v. United States, Case No. 23-1095 (certiorari granted October 4, 2024)

Barnes v. Felix, Case No. 23-1239 (certiorari granted October 4, 2024)

Perttu v. Richards, Case No. 22-1298 (certiorari granted October 4, 2024)

Gutierrez v. Sanz, Case No. 23-7808 (certiorari granted October 4, 2024)

ABA Journal, Supreme Court’s sleepy-looking docket leaves room for potentially bigger cases to come (October 3, 2024)

Marijuana Moment, DOJ Says Allowing A Pennsylvania Prosecutor Who Uses Medical Marijuana To Possess A Gun Would Be ‘Dangerous’ (October 3, 2024)

United States v. Jackson, 110 F.4th 1120 (8th Cir. 2024)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

United States v. Diaz, Case No. 23-50452, 2024 U.S. App. LEXIS 23725 (5th Cir. Sep. 18, 2024)

Greene v. Garland, ECF 32, Case No 1:24-cv-21 (W.D. Pa., filed October 1, 2024)

– Thomas L. Root

Supreme Court Long Conference is Today – Update for September 30, 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.

LONG CONFERENCE KICKS OFF SCOTUS OCTOBER 2024 TERM

longconf210706“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, At the long conference, the rate is roughly half of that, about 0.6%.

The Court returns to the bench on October 7th to start a new term that includes cases on transgender rights, ghost guns, flavored vapes, and securities fraud. One case generating interest is Hewitt v. United States, which seeks to reverse a 5th Circuit holding that First Step Act mandatory minimum changes cannot be applied to people sentenced before the Act was passed but whose cases were remanded for resentencing after the Act became law. Federal circuit courts are split on this question.

Last week, a bipartisan group of senators led by Majority Whip Richard Durbin (D-IL), Chairman of the Senate Judiciary Committee, filed a brief in the Hewitt case. The Senators told the Court that in “designing the First Step Act, Congress sought to ensure that individuals who committed an offense before the Act was enacted, but who were not yet subject to a sentence for that offense, would benefit from Section 403. That group, as Congress conceived of it, includes both individuals facing an initial sentencing proceeding as well as individuals facing resentencing following vacatur of a prior sentence.”

The group, including Sen Charles Grassley (R-IA), Cory Booker (D-NJ), and Mike Lee (R-UT), argued that the 5th Circuit’s “reading of Section 403 is inconsistent with Congress’ intent as reflected in its chosen text.”

vacationSCOTUS180924The Dept of Justice has refused to argue in support of the 5th Circuit’s decision. The Supreme Court therefore has appointed Michael McGinley, a partner in the Dechert law firm, as a “friend of the court” to brief and argue in support of the judgment below, a practice that happens about once every term.

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

Time, The Biggest Supreme Court Cases to Watch (September 25, 2024)

Senate Judiciary Committee, Durbin, Bipartisan Group Of Senators Urge Supreme Court To Maintain Strength Of Landmark Criminal Justice Reform Provision In Hewitt v. US (September 24, 2024)

Hewitt v. United States, Case No 23-1002 (Supreme Court, oral argument pending)

SCOTUSBlog, Justices appoint former clerk to argue First Step Act cases (July 26, 2024)

– Thomas L. Root

“In My Expert Opinion, You’re Guilty” – Update for March 25, 2024

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SUPREMES SPLIT ON GOVERNMENT EVIDENTIARY CAT-SKINNING

catskinning240325The Supreme Court last Tuesday appeared divided over a case arguing that letting a DEA agent testify that most drug mules knew they were carrying drugs across the border violated the Federal Rules of Evidence and led to an unfair conviction.

Delilah Diaz was caught at the Mexican border with over $350,000 in meth hidden in the door panels of the car she was driving. She claimed not to know the drugs had been hidden in the car. A DEA agent expert witness testified, however, that drug mule drivers as a class typically know they are transporting drugs.

Federal Rule of Evidence 704 generally states that an expert in a criminal case may not give an opinion on the defendant’s criminal intent, or mens rea. Yolanda argued that the expert’s “class” testimony was a back-door introduction of evidence not allowed by Rule 704.

While some justices appeared to favor the government’s position of allowing such testimony, others appeared to favor reining it in.

expert160905The problem for the justices during arguments Tuesday was where to draw the line on ambiguous evidentiary rules, as evidence prohibited under one rule might be permissible under another. Circuits are split on whether testimony about a class of defendants is the “functional equivalent” of testimony about the defendant being tried for purposes of Rule 704 or whether “class” testimony is permissible evidence of how drug cartels usually operate. “There’s always a way to skin the evidentiary cat,” said Justice Neil Gorsuch, who appeared firmly on the side advocating for a more limited rule.

Justice Clarence Thomas pressed the government, saying that when you testify about the probabilities that someone knows she is carrying drugs, “you are in effect talking about the defendant, that you could only be concerned about the conduct of the defendant.”

Justice Samuel Alito suggested that other evidentiary rules might knock out such evidence, like Rule 703, which allows a court to exclude otherwise permissible evidence if it is more prejudicial to the defendant than helpful to the jury.

game180103Both sides have “line-drawing problems,” Justice Elena Kagan said. Even if the Court ruled for the petitioner, “all the expert has to do is tweak the way he says something and the exact same testimony can come in”, she said. “It just seems at that point a kind of game.”

Gorsuch observed that if the government is allowed to introduce such “class” testimony, a defendant will, too. “What’s going to be good for the goose here is going to be good for the gander,” he suggested.

Diaz v. United States, Case No 23-14 (Supreme Ct, argued March 19, 2024)

Reuters, US Supreme Court appears split over appeal by convicted border drug ‘mule’ (March 19, 2024)

Sentencing Law and Policy, A little interesting coverage of an interesting SCOTUS argument on drug mule case experts (March 20, 2024)

Bloomberg Law, Justices Search for Sweet Spot on Testimony on Criminal Mind (March 19, 2024)
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– Thomas L. Root

Supreme Court Decides What Congress Really Meant on Safety Valve – Update for March 19, 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.

A CONSPIRACY OF DUNCES…
This website was down all day yesterday due to a dark conspiracy of the people at Bluehost, LISA’s web provider, who decided to all become incompetent at once. Not really. Incompetence has been Bluehost’s theme for years…

TEXTUALISM TAKES IT ON THE CHIN

The Supreme Court on Friday narrowly interpreted 18 USC § 3553(f), the “safety valve” provision that was rewritten as part of the First Step Act, to “den[y] thousands of inmates a chance of seeking a shorter sentence,” according to NBC News.

caterpillar240319Many Supreme Court observers believed the Court would approach Friday’s case – Pulsifer v. United States – textually. “Textualism” is the interpretation of the law based exclusively on the ordinary meaning of the legal text. You know, like “and” means “and” and not “or.”  But the Court surprised the parties and observers in more ways than one.

Justice Elana Kagan’s opinion at first blush seems to be something only your high school English teacher could love. The case concerned the “safety valve” provision, which exempts some drug defendants from mandatory minimum sentences if they meet a list of conditions. One of those (3553(f)(1)) says the defendant can’t have “more than 4 criminal history points… a prior 3-point offense… AND a prior 2-point violent offense…” (I emphasized “AND” for reasons that will become apparent).

Mark Pulsifer had a prior 3-point felony, so his sentencing judge said he was ineligible for the safety valve. Mark, however, argued that the way (f)(1) is written, a defendant is ineligible only if he fails all three conditions. That is, Mark said, he was qualified for the safety valve unless he had all three of “more than 4 criminal history points AND a prior 3-point offense AND a prior 2-point violent offense.

grammar240319The Court’s lengthy ruling was little more than an English grammar lesson. In a decision surprising for scrambling ideological alliances on the Court, liberal Justice Kagan wrote for a 6-3 majority made up of traditionally conservative justices, while conservative Neil Gorsuch was joined by two traditionally liberal justices, Sonia Sotomayor and Ketanji Brown Jackson. The holding essentially holds that in the case of the safety valve, “and” means “or.”

SCOTUSBlog.com reported that

Kagan’s acceptance of the government’s argument relies squarely on a problem of superfluity.” The opinion focused on the fact that under Pulsifer’s reading of the provision, to be ineligible a defendant would have to have a prior 3-point conviction and a prior 2-point conviction. If that were so, the first requirement – that he or she have more than 4 points – was meaningless because to meet conditions two AND three, the defendant would already have to have 5 points. “In addressing eligibility for sentencing relief, Congress specified three particular features of a defendant’s criminal history — A, B, and C,” Kagan wrote. “It would not have done so if A had no possible effect. It would then have enacted: B and C. But while that is the paragraph Pulsifer’s reading produces, it is not the paragraph Congress wrote… [I]f a defendant has a three-point offense under Subparagraph B and a two-point offense under Subparagraph C he will always have more than four criminal-history points under Subparagraph A.

In other words, if reading the plain text of a statute yields a result that seems at odds with what Congress must have intended, the Supreme Court’s interpretation of what Congress must have intended prevails.

To prove her grammatical point, Kagan cites both The Very Hungry Caterpillar and Article III of the Constitution. She notes that Article III extends the “judicial Power… to all Cases… arising under this Constitution, the Laws of the United States, and Treaties.” This, she says, plainly applies to cases arising under any one of the three listed bodies of law but does not require that the cases arise under ALL three.

and-or240319In his dissent, Gorsuch complained that the decision significantly limits the goals of the First Step Act. “Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result,” Gorsuch wrote. “Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering.”

Besides dramatically limiting those eligible for a safety valve non-mandatory drug sentence, Friday’s decision dashes the hope of some seeking a zero-point retroactive Guidelines 4C.1 2-level reduction. One of the conditions to qualify for that reduction is that a “defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC 848.” Some read this as being that a defendant has to have both a 3B1.1 aggravating role AND a 21 USC 848 conviction. Other courts have read this as disqualifying all defendants having either a 3B1.1 enhancement OR an 848 conviction.

The decision stamps “denied” on the 5 pct of defendants annually getting a USSC § 3B1.1 leader/organizer/manager/supervisor enhancement.

Writing in his Sentencing Policy and Law blog, Ohio State University law professor Doug Berman observed that the Pulsifer “serves as still more evidence that SCOTUS is no longer one of the most pro-defendant sentencing appeals courts. I got in the habit of making this point for a number of years following the Apprendi/Blakely/Booker line of rulings during a time when most federal circuit courts were often consistently more pro-government on sentencing issues than SCOTUS… But we are clearly in a different time with different Justices having different perspectives on these kinds of sentencing matters.”

Pulsifer v US, Case No 22-340, 2024 U.S. LEXIS 1215 (March 15, 2024)

Reuters, US Supreme Court says thousands of drug offenders can’t seek shorter sentences (March 15, 2024)

Sentencing Law and Policy, In notable 6-3 split, SCOTUS rules in Pulsifer that “and” means “or” for application of First Step safety valve (March 15, 2024)

SCOTUSBlog.com, Supreme Court limits “safety valve” in federal sentencing law (March 15, 2024)

NBC, Supreme Court denies ‘thousands’ of inmates a chance at shorter sentences (March 15, 2024)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 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.

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root