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Supremes Hand Down a Federal Criminal Pair – Update for June 19, 2018

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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.

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HIGH COURT DECIDES A COUPLE OF PROCEDURAL ISSUES, DRY BUT IMPORTANT

vacation180618I had no sooner gotten done writing in yesterday morning’s newsletter to federal inmates that the Supreme Court still had a plateful of decisions to hand down – including five criminal cases – than the Court reduced its remaining opinion load by 25 percent, dropping five decisions at Monday’s session, including two federal criminal procedure opinions.

For those keeping score, SCOTUS has 14 opinions yet to issue, and has scheduled an extra opinion day for Thursday this week in order to push decisions out the door before vacation begins on June 30th.

SUPREME COURT SAYS GUIDELINES ERROR ALMOST ALWAYS WARRANTS RELIEF

Every year, a lot of sentencing guidelines mistakes appear in presentence reports but never get caught by defense counsel or the court.

errorB160425On appeal, errors not raised in the district court may only be addressed by Federal Rule of Criminal Procedure 52(b), and then only as long as (1) the error was not “intentionally relinquished or abandoned,” (2) the error is plain, and (3) the error “affected the defendant’s substantial rights.” If those conditions are met, “the court of appeals should exercise its discretion to correct the forfeited error if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” These standards were adopted by the Supreme Court in United States v. Olano. Thus, an appellant wanting to raise a mistake at sentencing to which no one objected has to ring Olano’s first three bells. If he or she does that, the Court of Appeals then muses about whether the error seriously affected the fairness, integrity or public reputation of judicial proceedings – you might say, whether it makes the courts look bad – and, if it does, the Court of Appeals will do something about it. Maybe.

If you ever wanted to see the legal equivalent of a stacked deck, Olano’s “plain error” test is it.

The issue in the first of yesterday’s decisions, Rosales-Mireles v. United States, was whether a Guidelines error that satisfies Olano’s first three conditions warrants relief under the fourth prong. The 5th Circuit, not content with loaded dice Olano had already given it, decided that unless the complained-of error “shocked the conscience,” it did not meet Olano’s fourth prong. This is tough for people like me, because the older I get, the harder it is for my conscience to be shocked. And unsurprisingly, the ages of the judges on the courts of appeal skew much more toward Metamucil than they do Monster energy drinks. So (and this will come as no surprise), the 5th’s conscience is not easily shocked.

metamucil180619Florencio Rosales-Mireles pleaded guilty to illegal reentry into the United States. In calculating the Guidelines range, the Probation Office’s presentence report mistakenly counted a state misdemeanor conviction twice. As a result, the report yielded a Guidelines range of 77 to 96 months, when the correctly calculated range would have been 70 to 87 months. No one caught the mistake at sentencing.

On appeal, Flo challenged the incorrect Guidelines range for the first time. The 5th Circuit found that the Guidelines error was plain and that it affected Flo’s substantial rights because there was a “reasonable probability that he would have been subject to a different sentence but for the error.” The Circuit nevertheless declined to remand the case for resentencing, concluding that Flo had not established that the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings because neither the error nor the resulting sentence “would shock the conscience.”

shocked180619As an aside, I would observe that someone whose conscience is not shocked that a judicial blunder would deprive a human of liberty for as much as 26 months has never been locked up. But no matter. The defendants serve the sentences, not the judges.

But to its credit, the Supreme Court disagreed with the 5th Circuit. Yesterday’s decision held that a miscalculation of a Guidelines sentencing range that has been determined to be plain and to affect a defendant’s substantial rights requires a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence “in the ordinary case.”

Although Rule 52(b) is permissive, not mandatory, the Court said, it is well established that courts “should” correct a forfeited plain error affecting substantial rights “if the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.” The 5th Circuit’s shock-the-conscience standard too narrowly confines the extent of the court of appeals’ discretion. It is not reflected in Rule 52(b), nor in how the plain-error doctrine has been applied by the Supreme Court, which has before reversed judgments for plain error based on inadvertent or unintentional errors by the court or the parties. The errors are not required to amount to a “powerful indictment” of the system.

An error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence greater than “necessary” to fulfill the purposes of incarceration. That risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error, the Court said, because Guidelines miscalculations ultimately result from judicial error, as the district court is charged in the first instance with ensuring the Guidelines range it considers is correct.

bell180619Ringing the first three Olano bells will not make 52(b) relief inevitable, however, the Court ruled, because any exercise of discretion at the fourth prong of Olano inherently requires “a case-specific and fact-intensive” inquiry. Countervailing factors may satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction. But for now, an appellate judge’s conscience need not be shocked in order for him to do the right thing.

Rosales-Mireles v. United States, Case No. 16-9463 (June 18, 2018)
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COURT LEAVES QUESTION OF ADEQUACY OF DISTRICT COURT EXPLANATION FOR SENTENCE TO ANOTHER DAY

Adaucto Chavez-Meza pled guilty to possessing methamphetamine with intent to distribute. The judge reviewed the Guidelines, determined the range to be 135 to 168 months, and imposed a sentence at the bottom of the range. The Sentencing Commission later lowered the relevant range to 108 to 135 months, and Adaucto sought a sentence reduction under 18 USC 3582(c)(2) to the bottom of the new range. The judge reduced his sentence to 114 months instead. The order was entered on a form certifying that the judge had “considered” Adaucto’s “motion” and had “taken into account” the 18 USC 3553(a) factors and the relevant Guidelines policy statement.

On appeal, Adaucto argued the sentencing judge did not adequately explain why he rejected petitioner’s request for a 108-month sentence. The 10th Circuit Court of Appeals disagreed.

can180619A lot of us thought the Supreme Court would use this case to explain the degree of detail a judge had to provide on sentences, even in-Guidelines sentences. But yesterday the Court punted, holding simply that because the record as a whole demonstrated the judge had a reasoned basis for his decision, the judge’s explanation for Adaucto’s sentence reduction was adequate.

The government argued Adaucto was not entitled to an explanation at all because the statute governing sentence-modification motions does not expressly require a sentencing judge to state his reasons for imposing a particular sentence at all. While implying it might have sympathy to that view, the Court said, “it is unnecessary to go as far as the government urges, however, because, even assuming the District Court had a duty to explain its reasons when modifying petitioner’s sentence, what the court did here was sufficient.”

Chavez-Meza v. United States, Case No. 17–5639 (June 18, 2018)

– Thomas L. Root

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SCOTUS Hems and Haws, Then Passes on Change to Refine Beckles – Update for June 1, 2018

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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. 

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SUPREME COURT NIXES CHANCE TO ANSWER QUESTION LEFT HANGING BY BECKLES

A few weeks ago, we reported that the Supreme Court had relisted three related cases an unusual number of times. (A relist is when the Supreme Court schedules a certiorari petition for a decision at the weekly Friday justices’ conference, but then defers any decision until the next conference, essentially “relisting” it on the next week’s conference list).

missedopp180531Last week, the Court denied review without comment on those cases, Allen v. United States, Gates v. United States, and James v. United States. All of these cases asked whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague. Now that question will go unanswered for now.

SCOTUSBlog noted last week, “It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.”

Supreme Court, Order (May 21, 2018)

– Thomas L. Root

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Minus One, Plus Two at Supreme Court – Update for December 12, 2017

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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.

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CERTIORARI DENIED TO DAN MCCARTHAN, BUT TWO OTHER SENTENCING CASES GRANTED SCOTUS REVIEW

You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”

futility171212Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.

Meanwhile two new sentencing cases have been added to the Supreme Court docket. Hughes v. United States revisits the 2011 Freeman v. United States decision. Freeman said that a defendant with a F.R.Crim.P. 11(c)(1)(C) sentence – one where the sentence was fixed in the plea agreement – could get a sentence reduction under retroactive Guidelines changes only were the sentence was somehow tied to the Guidelines. Freeman was a 5-4 decision, and the fifth Justice only concurred, which made her concurring opinion the one that controlled.

undo160812Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.

It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1 of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.

Hughes v. United States, Case No. 17-155 (certiorari granted Dec. 8, 2017)

Koons v. United States, Case No. 17-5716 (certiorari granted Dec. 8, 2017)

– Thomas L. Root

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Not With a Bang But a Whimper – SCOTUS October Term 2016 ends – Update for June 27, 2017

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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.

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SUPREME COURT BEATS FEET FOR SUMMER, LEAVES DIMAYA STRANDED


The Supreme Court ended its October 2016 term yesterday by issuing several higher-profile decisions, including one on not denying state programs to churches, and granting certiorari on the Trump Administration’s travel ban. 

scotus170627But we are nothing if not one-issue commentators here, so we left the final session of the term unsatisfied, as the Court left two immigration cases –  including the long-awaited Sessions v. Dimaya – undecided.

The Court is adjourned until October 2, 2017, when its next 9-month session begins.

The issue in Sessions v. Dimaya, Case No. 15-1498, is this:

When a noncitizen is convicted of a crime, he can be deported if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined in 18 U.S.C. § 16 as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, the court ruled in Johnson v. United States that the “residual clause” in the Armed Career Criminal Act had a definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – that was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence,” and by extension, the 18 U.S.C. § 16 definition of a crime of violence.

punt1606134Yesterday, the Supreme Court punted, setting the case for reargument next fall. This suggests that the Court was splintered as to how to decide it, probably split 4-4 (the case was argued before Justice Gorsuch joined the court). That means Justice Gorsuch will be the swing vote.

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No Justice announced retirement yesterday, although rumors flew that Justice Anthony Kennedy, who just turned 80, might do so. Justice Kennedy’s wife, Mary, was not present in the courtroom (as she often is), leading SCOTUS observers to discount the likelihood of a Kennedy retirement this year.

The failure of any Justice to make a retirement announcement is not terribly significant. Justices announce retirement at any time, not specifically on the last day of the term. If one would retire before October, a reargument could still leave the court deadlocked.

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The Court also issued two orders of interest:

gun160711Sessions v. Binderup, Case No. 16-847: The question was whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms and ammunition, is unconstitutional under the Second Amendment based on the petitioners’ claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

The Court relisted the petition six times – an unusual number of times to reconsider a petition for writ of certiorari – but yesterday it denied the petition for certiorari.

The multiple relistings suggest that the court may be close to accepting a case on this topic.

Hicks v. United States, Case No. 16-7806: When Marcus Hicks was sentenced, he was eligible for the lower sentence for crack cocaine offenses under the Fair Sentencing Act, because while he committed the crime before the FSA passed, he was being sentenced after it passed. But no one noticed, and before the 5th Circuit, nobody argued it. Marcus got the higher sentence. He asked the Supreme Court for certiorari to correct it.

errorA160425Yesterday, the Supreme Court GVR’d the case (which is SCOTUS shorthand for granted certiorari, vacated and remanded all at once) summarily reversing the 5th Circuit, and sending  the case back. Everyone agreed Marcus met the first two elements of plain error: The court could see a mistake had been made, error was obvious. But two other elements had to be met also: Marcus’s substantial rights to a lower sentence had to have been harmed, and the error had to implicate the fairness, integrity, or public reputation of judicial proceedings.

The Supreme Court sent the decision back to the 5th Circuit to determine the last two factors.

Justice Neil Gorsuch, only two months on the Court, filed a concurring opinion on Marcus’s remand which hints that he may approach federal criminal law matters with an open mind and a sense of fairness. The Justice wrote:

Everyone agrees that Mr. Hicks was wrongly sentenced to a 20-year mandatory minimum sentence under a now-defunct statute. True, Mr. Hicks didn’t argue the point in the court of appeals. But before us the government admits his sentence is plainly wrong as a matter of law, and it’s simple enough to see the government is right…

A plain legal error infects this judgment—a man was wrongly sentenced to 20 years in prison under a defunct statute. No doubt, too, there’s a reasonable probability that cleansing this error will yield a different outcome. Of course, Mr. Hicks’s conviction won’t be undone, but the sentencing component of the district court’s judgment is likely to change, and change substantially. For experience surely teaches that a defendant entitled to a sentence consistent with 18 U. S. C. §3553(a)’s parsimony provision, rather than pursuant to the rigors of a statutory mandatory minimum, will often receive a much lower sentence.

When it comes to the fourth prong of plain error review, it’s clear Mr. Hicks also enjoys a reasonable probability of success. For who wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?”

– Thomas L. Root

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Defendant Who Could Not Win at Trial Can Still Argue Bad Plea Advice – Second Update for June 23, 2017

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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.

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HILL V. LOCKHART ‘OBJECTIVE” TEST DEFANGED

If a post-conviction petitioner argues in a 28 USC 2255 motion that he or she would never have taken a plea deal if defense counsel had done a competent job of explaining it, the courts have held that the prisoner must show (1) the advice was deficient (either bad or missing altogether); and (2) but for the bad representation, he or she would have rejected the plea and gone to trial. This is the Hill v. Lockhart test, from a 1985 Supreme Court decision.

pleading170502A prisoner might have a lot of reasons for going to trial that have nothing to do with whether he or she can win. But over the years, the government has convinced courts that if the petitioner had no reasonable chance of winning at trial, he or she cannot prove that but for the lousy advice, he or she would have rolled the dice with a jury.

Korean-American restaurant owner Jae Lee was in that boat. Jae had moved to the United States from South Korea with his parents when he was 13. In the 35 years he spent in this country, Jae has never returned to South Korea, but neither had he become a U. S. citizen, living instead as a lawful permanent resident.

In 2008, federal law enforcement found drugs, cash, and a loaded rifle in Jae Lee’s house. Jae admitted that the drugs were his, and a grand jury indicted him. His attorney talked pleas with the Government. During the plea process, Jae repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison.

plea161116The attorney was dead wrong. Jae was subject to mandatory deportation as a result of the plea. When Jae learned of this consequence, he filed a 2255 motion, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Jae and his lawyer testified that “deportation was the determinative issue” to Jae in deciding whether to accept a plea. The attorney acknowledged that although Jae’s defense to the drug charge was really weak, if he had known Jae would be deported upon pleading guilty, he would have advised him to go to trial anyway.

The district court denied the 2255, holding that while Jae Lee’s counsel had performed deficiently, Jae could not show that he was prejudiced by his attorney’s erroneous advice. The 6th Circuit agreed.

Today, the Supreme Court reversed, 6-2, in a substantial victory for Jae. The Supremes noted that the basic rule since Hill v. Lockhart has been that when a defendant claims his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

The problem with Government’s per se rule that a defendant without a viable defense cannot show prejudice from the denial of his right to trial, Chief Justice Roberts wrote, is that “categorical rules are ill suited to an inquiry that demands a case-by-case examination of the totality of the evidence.” What’s more, the Government overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

hailmary170613The Court said the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Jae, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.

The Government argued that “a defendant has no entitlement to the luck of a lawless decisionmaker,” quoting Strickland v. Washington. The Court said that the “lawless” quote was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent.

The Supreme Court said that district courts should not upset a plea solely because of after-the-fact assertions by a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. Here, Jae has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.

The Government argued that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances, since deportation would almost certainly result from a trial. But the Chief Justice was not willing to let courts decide that “that it would be irrational for some-one in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

We think this decision will have a significant effect on 2255 petitioners seeking to set aside an incompetently-advised plea.

Lee v. United States, Case No. 16-327

– Thomas L. Root

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Brady Takes a Hit (Maybe) – Update for June 23, 2017

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SUPREME COURT DECIDES THREE AGAIN

The Supreme Court issued three opinions yesterday, all on criminal matters.

  • Brady Material Not Material

Turner v. United States, Case No. 15-1503:  The case concerns the murder of Catherine Fuller, a District of Columbia mother, nearly a quarter-century ago. The petitioners in the case were a group of Washington, D.C., men who were convicted of the crime, based primarily on testimony from alleged eyewitnesses. Years later, a reporter learned that the men’s lawyers had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had not turned over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts. However, last fall the justices agreed to review the case, focusing on whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant.

The Supreme Court affirmed, 6-2, holding that the government did not violate Brady. Justice Breyer wrote that the question before the court was whether the withheld evidence was material under Brady. In the case, a group attack was the very cornerstone of the Government’s case, and virtually every witness to the crime agreed that Fuller was killed by a large group of perpetrators.

Pat Brady - Roy Rogers' comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.
Pat Brady – Roy Rogers’ comical sidekick back in the 1950s – had nothing to do with Brady v. Maryland, which is deadly serious for many defendants.

The Court held that it was not reasonably probable that the withheld evidence could have led to a different result at trial. Petitioners’ problem, Justice Breyer wrote, is that their current alternative theory would have had to persuade the jury that two defendants had  falsely confessed to being active participants in a group attack that never occurred; that another person falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that an otherwise disinterested witness wholly fabricated his story; that two other witnesses likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave together to rob her.

The case is very fact-bound, meaning that it may not have a lot of relevance to other Brady cases.

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Maslenjak v. United States, Case No. 16-309:

Divna Maslenjak was an ethnic Serb who came to the United States as a refugee from what is now Bosnia, fleeing the conflict in the former Yugoslavia.  She became a U.S. citizen but was later stripped of her U.S. citizenship and deported (along with her husband) to Serbia after the U.S. officials discovered that she had made false statements during the naturalization process. Divna told immigration officials (among other things) that her family feared persecution from Muslims, and that they might be abused because her husband had evaded service in the army.

That turned out to be false, Her husband actually had served in the army, and was part of a unit that participated in an infamous massacre of Muslims.

Divna admitted she lied to U.S. immigration officials, but she argued that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application. 

Well, we're calling you a liar, Ms. M... But was your lie material?
Well, we’re calling you a liar, Ms. Maslenjak… But was your lie material?

In an opinion by Justice Kagan, the Court vacated and remanded, by 9-0, with three concurrences. The Justices held that the government must establish an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means the government must demonstrate that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts that would justify denial.

The Court did not decide whether the lie Divna told was disqualifying. In all likelihood, it is. But that is for the district court to decide on remand.

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Weaver v. Massachusetts, Case No. 16-240:

This case explored whether a criminal defendant who contends that his lawyer provided constitutionally inadequate representation that resulted in a “structural” error – that is, a fundamental error that affects the entire structure of a trial – must also show that he was harmed by that inadequate representation.

Kentel Weaver was arrested in 2003 at the age of 16 for the murder of a 15-year-old in Boston. He eventually confessed. However, Weaver’s case went to trial anyway, with a jury pool of approximately 90 potential jurors.

courthouseclosed170605When Weaver’s mother and other supporters arrived for the trial, they were told – on two separate days – that the courtroom was “closed for jury selection.” Weaver’s lawyer was aware that Weaver’s supporters had not been admitted to the courtroom, but he did not object. Several years later, Weaver sought a new trial, citing (among other things) his lawyer’s failure to object when the courtroom was closed during jury selection. The judge ruled that the courtroom had indeed been closed, in violation of Weaver’s Sixth Amendment right to a “public trial.” But he also ruled that Weaver would have to show that he was prejudiced by the courtroom closure, which he had failed to do.

In an opinion by Justice Kennedy, the Supreme Court held, 7-2, that although the right to a public trial is important, “in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint.”  Here, Weaver had not shown a “reasonable probability of a different outcome but for counsel’s failure to object, and he had not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial.”

The Court said the proper remedy for addressing violation of the right to a public trial depends on when the objection was raised. If an objection is made at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show deficient performance and that the attorney’s error “prejudiced the defense.” To demonstrate prejudice in most cases, the defendant must show “a reasonable probability that . . . the result of the proceeding would have been different” but for attorney error.

In other words, if the defendant’s trial counsel is incompetent, and if his appellate counsel is incompetent, he is prejudiced by having to show prejudice at the post-conviction stage? Whew. We suspect we have not heard the last of this theory.

– Thomas L. Root

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Supreme Court Decides Two Forfeiture Cases, Picks Up Cellphone Data Case for Next Term – Update for June 6, 2017

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SUPREME COURT DECIDES TWO FORFEITURE ISSUES, GRANTS CERT ON CELLPHONE DATA QUESTION
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Terry Honeycutt was just a clerk, not an owner – but the Court of Appeals tried to stick him for the illegal profits.

The Supreme Court was busy yesterday – as it will be all this month – deciding two cases that relate directly or indirectly to the monetary side of sentencing and granting certiorari in a Detroit robbery case on a cutting-edge cellphone data issue.

In Honeycutt v. United States, a 6th Circuit case, the Court held that forfeiture under the Comprehensive Forfeiture Act of 1984, 21 USC § 853(a)(1), which requires forfeiture of any property “constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” some drug crimes, is limited to property that the defendant himself actually obtained as the result of the crime.

This means that the statute cannot require forfeiture by Terry Honeycutt, the petitioner in the case, who was a clerk at his brother’s grain and feed store. Terry and his brother sold large quantities of an iodine-based water purification product that they knew could be used to manufacture methamphetamine. Terry had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. Despite this, the government asked the district court to hold Terry jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the profits from the conspiracy. The district court refused, holding that Terry was a salaried employee who had not received any profits from the sales.

The 6th Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds.

Yesterday, the Supreme Court said that because forfeiture under 21 USC § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, a court cannot order forfeiture from Terry Honeycutt, who had no ownership interest in his brother’s store and made nothing from the sales.

Honeycutt v. United States, Case No. 16-142 (June 5, 2017)

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The Securities and Exchange Commission has authority to investigate violations of federal securities laws and to bring enforcement actions in district court if its defendant “disgorge” illegal profits and pay civil fines.

limitations170606In 2009, the SEC brought an enforcement action against Charles Kokesh, arguing he has violated securities laws by concealing $34.9 million he had unlawfully pocketed from four business- development companies from 1995 to 2009. The Commission asked for civil penalties and disgorgement.

A jury found for the SEC, but the district court held that a 5-year limitations period in 28 USC § 2462 applied to the monetary civil penalties but not the disgorgement. The 10th Circuit agreed, holding that disgorgement was neither a penalty nor a forfeiture.

Yesterday, the Supreme Court reversed the 10th Circuit, concluding that SEC disgorgement operates as a penalty under the terms of 28 USC § 2462. Therefore, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim arose. Because a lot of what Kokesh did was older than 5 years when the suit was brought, those sums will have to be carved out of the district court award.

The decision could have favorable implications for some forfeiture and restitution issues in federal criminal cases.

Kokesh v. SEC, Case No. 16-529 (June 5, 2017)
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Finally, the Court granted certiorari and agreed to review a 6th Circuit decision in which Timothy Carpenter was convicted of multiple counts of aiding and abetting the use of a gun in a series of cellphone store robberies. Tim was the lookout man/getaway driver, and did not carry a gun himself.

cellphoneloc170606Tim was convicted on six counts of robbery after police combed through a month’s worth of location points collected by cell towers and placed him near storefronts where armed robberies occurred. Relying on the Stored Communications Act, which allows phone companies to disclose records when the government provides “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation,” the government got an order to obtain phone records for 16 phone numbers, including Tim’s cellphone. The several months’ worth of historical cell-site records received showed which cell towers were linked to which cellphone while it was in use. The records allowed the government to determine that, over a five-month span in 2010 and 2011, Tim’s cellphone connected with cell towers in the vicinity of the robberies.

Tim argued in district court and at the 6th Circuit that the records should be suppressed because the government had not obtained a warrant for them. The 6th rejected Tim’s argument that disclosure of his phone records was a search for which the government needed a warrant, holding cellphone companies collect the location data “in the ordinary course of business” for their own purposes. What’s more, the Circuit said, Tim had no reason to think his cellphone records would be kept private, the court explained, because the records only show his cellphone connecting to specific cell towers, without providing any information about the content of his calls.

The U.S. Supreme Court picked the Carpenter case from a thundering herd of similar cert petitions to rule on the question of whether law enforcement is required to obtain a probable-cause court warrant to access such cellular location data.

“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Wessler, a staff attorney with the ACLU Speech, Privacy and Technology Project said in a statement. “The time has come for the Supreme Court to make clear that the longstanding protections of the 4th Amendment apply with undiminished force to these kinds of sensitive digital records.”

Carpenter v. United States, Case No. 16-402 (certiorari granted  on June 5, 2017)

International Business Times, Can Police Track Your Phone Without Warrant? Supreme Court To Decide On Location Data (June 5, 2017)

Amy Howe, Justices to tackle cellphone data case next term, SCOTUSBlog.com (June 5, 2017)

– Thomas L. Root

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Live by the Sword, Die by the Sword – Update for April 4, 2017

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SUPREMES SAY COURT CAN CONSIDER MANDATORY GUN SENTENCE WHEN SENTENCING ON UNDERLYING CRIME

Outside of TV cop shows, no one likes drug dealers or violent criminals waving firearms around, which is probably why no crime this side of kiddie porn is easier to demagogue than laws that slam gun-toting criminals.

gun160718Take 18 USC 924(c), which sets penalties for criminals who use, carry or possess a gun “during and in relation to” a crime of violence or drug-trafficking offense. A defendant convicted of a 924(c) offense must get a mandatory sentence of at least 5 years (with increased penalties if the perp “brandished” it or fired it, and whopping increases if, for example, it was fully automatic). What’s even more impressive, the statute raises the mandatory minimum to 25 years for the second offense. Oh yeah, and all 924(c) penalties must be consecutive to any other sentence.

Watch how the math works: On Monday, Bart Badguy robs a convenience store with a .44 Klutzman stuck in his waistband, and makes off with a bag of Doritos. Realizing later that he has nothing to dip it in, he robs another convenience store the next day, the same revolver displayed under his belt, and grabs some French onion dip. The federal sentencing guidelines set him at 63-78 months for the two robberies, and the court sentences Bart at the bottom (understanding what hunger can do to a man).

doritos170404But Paula Prosecutor is a canny lawyer, and she thus had the foresight to get Bart indicted for two 924(c) counts along with the two robberies. The first 924(c) count adds 60 months to the 63 months the district court imposed for the robberies. The second 924(c) count – arising from Bart’s going back for the dip – adds 300 months to the robberies and the first 924(c) conviction. Total sentence: 403 months (35¼ years) for chips and dip.

No one would argue against punishing crimes of violence involving guns more harshly than other offenses. Shooting legend Elmer Keith is credited with observing that one should never bring a knife to a gunfight, and the sentiment – that people carrying guns are likely to use them – undergirds 924(c).

knifegunB170404But the statute is inflexible, and the government has had its fun with it as a result. While Congress probably meant that a second 924(c) conviction – carrying a 25-year mandatory minimum – had to follow a prior 924(c) conviction, prosecutors years ago sold the Supreme Court that the statute did not say there had to be an intervening conviction. In Deal v. United States, a 1994 decision, the Supreme Court held that a drug-addled bank robber who held up six banks in a 3-month period – carrying a gun for all of them – had to get a 105-year sentence.

Yesterday, the government – which had lived by the sword – died by the sword.

The Supreme Court unanimously reversed the 8th Circuit, holding that a sentencing court may consider the length of a mandatory consecutive sentence when setting the length of an underlying sentence.

In Dean v. United States, the defendant was charged with committing two robberies with a gun. The robberies carried a guidelines sentence of 84 to 105 months. One of the two 924(c) counts carried a mandatory 5 years, and the second carried a mandatory 25 years. Both sentences had to be consecutive to the underlying sentence and each other.

So Levon Dean got to sentencing knowing that he had a minimum 360 months coming. His lawyer argued that it was more than enough, and the judge hardly needed to pile on another 84 months for the underlying offense. While the district court, the judge said he was not allowed to adjust the sentence of the underlying robbery to zero to account for the two consecutive gun sentences. Levon got 400 months.

knifegun170404The 8th Circuit agreed with the government that the underlying offense had to be sentenced as though the 924(c) counts were not there, and then the consecutive sentences had to be stacked on like pancakes. Anything else, the Justice Department argued, would thwart the will of Congress.

How convenient for the government that the will of Congress becomes a crucial consideration in Dean, while it was utterly irrelevant 24 years ago in Deal! Yesterday, however, the Supreme Court found it not so convenient, holding that while adjusting the underlying offense guidelines to zero might negate the will of Congress, that did not matter. The plain text of the statute was clear, and the plain text governs:

The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate 924(c) offenses whenever they think a mandatory minimum under 924(c) is already punishment enough. But no such intent finds expression in the language of 924(c). That language simply requires any mandatory minimum under 924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under 924(c) when calculating an appropriate sentence for the predicate offense.

The government argued that Congress’s intent that the underlying offense be sentenced without regard to the 924(c) count could be inferred from the statute’s silence. But in another consecutive-sentencing statute for identity theft, Congress included specific language limiting the district court’s ability to adjust the underlying sentence.

Sentencestack170404The Supremes ruled that because “Congress has shown that it knows how to direct sentencing practices in express terms,” but did not in 924(c), a sentencing court may impose a sentence on the underlying offense of one day, in order to make the overall sentence consistent with what the court considers appropriate under 18 USC 3553 (the sentencing statute). The Court said, “we ordinarily resist reading words or elements into a statute that do not appear on its face.”

Dean will go back to court for resentencing, where he will receive 30 years and a day.

Dean v. United States, Case No. 15-9260 (Apr. 3, 2017)

– Thomas L. Root

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Vitamins Not Healthy For Illinois Man – Update for March 22, 2017

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SUPREMES BRING 7TH CIRCUIT INTO LINE WITH EVERYONE ELSE; LEGAL COMMUNITY YAWNS

Earlier this week, the Supreme Court ruled that a man who spent 48 days in jail on charges fabricated by the police could sue under the 4th Amendment for an unreasonable seizure, that being the seven weeks he spent in stir.

Dangerous controlled substance?
       Dangerous controlled substance?

Elijah Manuel was riding in a car pulled over for a turn-signal violation. He complained that the Joliet, Illinois, police beat him and called his racial epithets. The police found a vitamin bottle containing pills (amazing thing, that). When field tested, the pills were found to be negative for illegal drugs, but that didn’t stop the officers from claiming the pills were Ecstasy and arresting Elijah anyway.

The pills tested negative again at the station, but the police report falsely said otherwise. A magistrate found probable cause, and kept Elijah locked up. A short while later, a grand jury – relying on the false police reports and testimony – indicted him.

Eventually, the state crime lab report came back reporting the pills were vitamins. Even then, it took a few weeks for the district attorney to dismiss charges and set Elijah free.

The issue before the Supreme Court was whether a claim for malicious prosecution could be brought under the 4th Amendment even after “legal process” – that being the magistrate’s finding of probable cause – issued. The 7th Circuit said it could not be: once legal process issued, such a complaint had to be brought under the 5th Amendment.

false170322In the event readers wonder why we don’t always report on Supreme Court cases like this one, the reason is this: Ten out of 12 federal circuits already held that Elijah’s 4th Amendment claim worked even after legal process issued, and in fact, even after a grand jury indictment, because legal process, like the initial seizure at the time of arrest, is unreasonable if it is based on fabricated evidence. The 8th Circuit had never ruled on the issue, and the 7th Circuit – ruling in Elijah’s case – got it wrong. As far as significance, this case is a yawner.

The decision includes dissents by Alito and Thomas, as well as a number of subsidiary issues orbiting the majority opinion like a legal planetary system. The case only got to where it is today because Elijah waited to the very last minute to file the case, and in fact missed the deadline to sue for false arrest, but not to sue for continued detention. The Justices debate the proper starting point for calculating the statute of limitations, a debate that has a kind of number-of-angels-dancing-on-the-head-of-a-pin quality to it.

At most, Manuel v. Joliet provides a clear basis for an additional constitutional claim – the 4th Amendment – when someone is locked up on bogus charges. It does not, however, really plow much new ground.

Manuel v. Joliet, Case No. 14-9496 (Supreme Court, Mar. 21, 2017)

– Thomas L. Root

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Lies, Damn Lies and Statistics… Update for March 10, 2017

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ROACH MOTEL

Besides the obvious fact that society abhors sex crimes against children – including the possession of kiddie porn – one of the rationales for handing out Draconian sentences to defendants convicted of such offenses is that they pose such a danger to the public if they’re roaming free.

Everyone knows that’s true. After all, the Supreme Court itself has recognized that an “frightening and high” percentage of untreated child porn offenders “re-offend” – which is sociologist-speak for “commits the same crime again” – after release. The statistic everyone loves to cite is 80%.

roach170310Except it now appears that the statistic is wrong. But like roaches at the Roach Motel, the “alternate fact” has checked into federal jurisprudence, and it shows no sign of checking out.

A New York Times article published last Monday took the State of North Carolina to task for an argument its attorney made during the Supreme Court oral argument the week before in Packingham v. North Carolina. “This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” attorney Robert C. Montgomery told the court during his defense of a state law that bars sex offenders from using social media services.

Attorney Montgomery was literally correct. The Supreme Court observed in a 2003 decision, Smith v. Doe, that the risk that sex offenders will commit new crimes is “frightening and high.” The Times said the holding, in a decision affirming Alaska’s sex offender registration law, has been “exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.”

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited McKune v. Lile, a decision from the year before, which noted that “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” That decision cited a 1988 Justice Department study entitled A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender, which was a collection of studies by experts in the field. Ironically, most of the recidivism rates cited in the Guide showed slight recidivism rates for sex offenders. One source, however, claimed an 80% re-offense rate, a number that the Guide itself cautioned might be an outlier.

80pct170310That source was a 1988 article published in the popular trade magazine Psychology Today. The Psychology Today piece simply asserted that “most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This statistic was not supported by any empirical evidence. In a recent Boston College Law Review article, Dr. Melissa Hamilton (who is both a criminologist and a lawyer) writes, “The Psychology Today authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training. Evidently, the authors’ “statistic” was simply based on personal observations from their local treatment program.”

Hamilton argues that

In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending. Unfortunately, the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.

That may soon change. Pending before the Supreme Court is a petition for writ of certiorari in Doe v. Snyder, the 6th Circuit’s maverick decision to reject the “frightening and high” recidivism canard, in holding that Michigan’s civil sex offender law is unconstitutional. Hamilton argues that “Snyder’s engagement with scientific evidence has the potential to change the jurisprudence surrounding sex offender laws.”

reoffend130310With the Doe v. Snyder certiorari issue to be decided in the next few weeks, the argument against the 80% figure gain traction yesterday with a U.S. Sentencing Commission release of The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders. The study, which is third in a USSC series on the topic, reported that persons convicted of child pornography had a recidivism rate of 37.6%, lower than any other category of offense except economic crimes (which, at 35.9%, was almost indistinguishable). Violent crime offenders, by contrast, reoffended at a 64.1% rate, and drug traffickers at a 50.0% rate.

lies170310Benjamin Disraeli (or Mark Twain, no one’s really sure) famously said, “There are three kinds of lies: lies, damned lies, and statistics.” He has a “frightening and high” 80% chance of being right.

New York Times, Did the Supreme Court Base a Ruling on a Myth? (Mar. 6, 2017)

Hamilton, Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 58:E.Supp Boston College Law Review, (2017)

U.S. Sentencing Commission, The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders (Mar. 9, 2017)

– Thomas L. Root

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