Tuesday, November 18, 2014

New Website: Collateral Consequences Resource Center

The Collateral Consequences Resource Center was launched November 18, 2014. Its "purpose is to fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates," according to the press release. Another goal "is to foster public discussion and disseminate information about what has been called the 'secret sentence.'” The website will be a source for news and commentary about developments in courts and legislatures, resources for practice and advocacy, and information about getting relief from collateral consequences in various jurisdictions.It intends to reach a broad audience, and is soliciting submissions and tips about developments and proposals for blog entries. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, gather practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records. For more information, visit the Collateral Consequences Resource Center.

Monday, November 17, 2014

Sentence, Supervised Release Conditions Affirmed in Child Porn Case

US v. Morrison, No.13-7051 (ED Okla), 11/13/14 - Published. Child porn case in which defendant, who had over 20,000 images on his computer, got stat max of 120 months and appealed procedural reasonableness of the sentence and conditions of supervised release. Held: (1) no procedural error where district court refused to vary downward based on policy disagreement with the child porn guidelines; (2) no procedural error in imposing two-level increase for use of a computer. The court was free to agree with defendant on these points, but simply chose not to and explained, albeit briefly, why it thought the sentence was reasonable; (2) challenge to ban on use of computers without permission of the PO was waived, where defendant argued that the ban would serve to deter, and thus made a conscious choice not to challenge the ban, but rather tried to turn it to his advantage; (3) ban on use of cameras without permission of the PO was OK, even though defendant did not use a camera to amass his collection. Having 20,000+ images means defendant might use a camera to record CP in the future and besides, he can always ask the PO for permission to use a camera.

New NACDL Report on How Courts Impede Fair Disclosure

Today the National Association of Criminal Defense Lawyers released the report Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases. According to NACDL's press release, "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person," NACDL President Theodore Simon said.

The release describes the study's findings as "extensive and dramatic". Findings include:

The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.

Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.

Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.

The complete press release and report are available here.

Thursday, November 06, 2014

Tenth Rejects Equal Protection Challenge to Armed Career Criminal Act Enhancement

U.S. v. Titley, 2014 WL 5580706 (11/4/14) (OK)(published) - Using the equal protection clause, Mr. Titley challenged the meaning of “serious drug offense” in the Armed Career Criminal Act (ACCA). He argued that although his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma otherwise qualify for the ACCA enhancement, these crimes should not count because they would not be “serious drug offense[s]” had he committed them in 19 other states or D.C. The court dismissed his argument. It said that by limiting “serious drug offense” under state law to manufacturing and distribution crimes and by including only those offenses carrying at least a ten-year maximum sentence, Congress acted rationally. A state crime meeting these criteria as a qualifying offense for ACCA sentencing enhancement serves the legitimate government purpose of incapacitating repeat offenders who have been convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and deterring others from committing ACCA predicate crimes and a § 922(g) offense.

Monday, November 03, 2014

Petitioner obtains remand for an evidentiary hearing

U.S. v. Adams, 2014 WL 5394293 (10/24/14) (Ut.) (unpub'd) - The 10th remands for an evidentiary hearing on a number of ineffective assistance of counsel claims. Mr. Adams alleged his trial attorney, Mr. Leavitt, interviewed his girlfriend-co-defendant in prison. She indicated she and Mr. Adams were common-law spouses. Mr. Leavitt prepared an affidavit to establish a spousal privilege to keep her from testifying against Mr. Adams. Unfortunately, the girlfriend had previously entered into a plea agreement that required her to testify for the government. When the government informed her attorney, Mr. Jaenish, about Mr. Leavitt's scheme, Mr. Janeish was displeased. He threatened to file a bar complaint against Mr. Leavitt for talking to a defendant who had counsel. The girlfriend testified against Mr. Adams at trial. Mr. Leavitt conducted a less-than-scintillating cross. When Mr. Adams complained about this, Mr. Leavitt promised to recall her to get out information that was favorable to Mr. Adams and impeaching of the girlfriend. That didn't happen after a shouting match between Mr. Leavitt and Mr. Jaenish in which Mr.Jaenish once again threatened a bar complaint When Mr. Adams asked why his girlfriend was not recalled, Mr. Leavitt explained that the prosecution would revoke her plea bargain and she would serve 40 years in prison. This scenario evidenced Mr. Leavitt was laboring under conflicts of interest because of his interest in avoiding a bar complaint and his apparent concern for the girlfriend's welfare. The 10th found that, if his allegations were true, Mr. Adams was entitled to relief. An evidentiary hearing was necessary to determine whether the instances of ineffective representation were the result of a conflict or Mr. Leavitt's strategic choices.

The 10th also found an evidentiary hearing was necessary to consider Mr. Adams' allegation that Mr. Leavitt lied when he told him the government had not filed an § 851 notice, which would have increased his mandatory minimum from 10 to 20 years. Mr. Adams said he would have taken the plea offer if he had known the truth. An evidentiary hearing would resolve whether Mr. Leavitt lied or instead the § 851 had not yet been filed at the time of the relevant conversation, whether the government's plea offer was made and how long it was good for, how willing was Mr. Adams to accept the plea offer, whether the government would have withdrawn the plea offer and whether the court would have accepted it.

On appeal the government changed course from its position in district court and contended an evidentiary hearing was necessary for the above two claims. The 10th rejected Mr Adams' contention that the government had waived its evidentiary hearing argument on appeal. He should be entitled to relief without such a hearing, Mr. Adams argued. The 10th reasoned that the government was not trying to better its position on appeal by making its argument. It was actually adopting a position more favorable to Mr. Adams than it had before. So no waiver.

With little discussion, the 10th also finds Mr. Adams' other two claims, if proved, would entitle him to relief, leaving to the district court the decision whether to hold an evidentiary hearing on those ineffective-assistance claims regarding: (1) appellate counsel's failure to adequately argue his life sentence was substantively unreasonable; and (2) trial counsel's failure to object to instances of prosecutorial misconduct.

Most impressively, Mr. Adams' appellate counsel sought a more-than-four-fold expansion of the word limit to 60,000 words. The 10th rules counsel could have fit in all of Mr. Adams' additional nine claims with a little more abbreviation or consolidation.

Unpublished decisions

U.S. v. Pulsifer, 2014 WL 5369397 (10/23/14) (Okl.) (unpub'd) - The 10th applies the good faith exception. Mr. Pulsifer contended there was probable cause for a warrant to search only for evidence of marijuana use, but not of distribution. The 10th found the warrant affidavit was not "devoid of factual support." An anonymous tipster claimed Mr. Pulsipher was distributing marijuana from his home and that there was heavy traffic in and out of the place. A three-week surveillance contradicted the tipster's traffic claim. Nonetheless, the matching of Mr. Pulsifer and his home to the descriptions the tipster gave, the discovery of a small quantity of marijuana in Mr. Pulsifer's trash and the 2007 delivery of 30 grams of marijuana to Mr. Pulsifer was enough to pass through the good faith portal regarding distribution. Significantly, and most troublingly, the 10th reasons the search was okay because it would have taken a "close comparison" between the affidavit and the warrant to discover any probable cause issues.

U.S. v. Stewart, 2014 WL 5354763 (10/22/14) (Col.) (unpub'd) - The 10th finds Mr. Stewart must have understood what his appeal waiver covered because he assured the judge he understood it, even though his attorney seemed a bit confused about the waiver at the plea hearing.

U.S. v. Wagner, 2014 WL 5394307 (10/24/14) (Wyo.) (unpub'd) - There was no reason for the district court to grant a further variance on the grounds that the handgun's relationship to the burglary was marginal given that it was in a locked safe in Mr. Wagner's car when he tried to break into a pharmacy. Mr. Wagner had stipulated to the enhancement for possession of a firearm in connection with a felony and counsel apologized to the district court for raising the "marginal" issue.

Pelletier v. U.S., 2014 WL 5334203 (10/21/14) (Col.) (unpub'd) - A procedural victory for a § 2241 petitioner. Contrary to the district court's ruling, Mr. Pelletier was "in custody" for habeas purposes where he was released on bond pending a removal hearing. That Mr. Pelletier must appear at immigration hearings scheduled at the discretion of the immigration court was enough to establish custody.

Cleveland v. Martin, 2014 WL 5368884 (10/23/14) (okl.) (unpub'd) - Qualified immunity applied to Mr. Cleveland's First and Eighth Amendment complaints against the prison denying him visitation with his minor children based on his previous conviction of child abuse. Although one can reasonably infer a "substantial hardship," the 10th states there is no clearly established right to familial association in the prison visitation context. Nor does visitation with minor children constitute a "necessity of life." So deprivation of that visitation is not cruel and unusual punishment.

Friday, October 31, 2014

New Guidelines go into effect November 1, 2014

The new United States Sentencing Guidelines Manual is now available online in PDF and HTML formats.

Here is a summary of the amendments.

There are changes to some commonly used guidelines, including those affecting drug quantity, felon in possession, and alien smuggling.

Monday, October 27, 2014

Tenth discusses divisibility and the modified categorical approach, and rejects 2255 petitioner's ineffective assistance of counsel claim

U.S. v. Rodriguez, 2014 WL 5201900 (10/15/14) (Okl.) (Published) - In the context of a § 2255, the 10th discusses divisibility and the modified categorical approach. Mr. Rodriguez alleged his attorney should have argued the Texas assault statute was indivisible and therefore not amenable to the modified categorical approach. The Texas statute criminalizes both intentional and reckless conduct. If Mr. Rodriguez had been convicted of reckless conduct the conviction would not count for career offender purposes. Trial counsel acknowledged the statute was divisible, but argued Mr. Rodriguez's blanket guilty plea to the indictment, which charged both intentional and reckless assault, did not show which kind of assault Mr. Rodriguez was necessarily convicted of. The 10th had ruled that he was convicted of both kinds. The 10th pointed out counsel's strategy was not a bad one, because the almost identical argument prevailed in the Fifth Cirucit two months later in U.S. v. Espinoza, 733 F.3d 568 (2013). Also, counsel was not wrong for failing to argue indivisibility based on Descamps and Marrero, which remanded a modified categorical approach case in light of Descamps. Those cases, the 10th holds, didn't have any bearing on what statutes were or were not divisible. And the 10th had already held in U.S. v. Zuniga-Soto, 527 F.3d 1110 (2008), that the Texas assault statute was divisible. The 10th also held counsel's failure to seek certiorari could not be the basis for relief because there is no constitutional right to effective assistance of counsel for certiorari review.

Unpublished Decisions

U.S. v. Gutierrez-Borjas, 2014 WL 5151975 (10/15/14) (Col.) (unpub'd) - Imposing the 4-level enhancement for possessing a firearm in connection with another felony offense under § 2K2.1(b)(6)(B) was not plain error where Mr. Gutierrez-Borjas carried a gun hidden in his waistband while he broke into a home where his recently estranged wife was staying. It didn't matter that he didn't openly hold the gun. It is enough to violate Colorado's felony menacing statute that the defendant engaged in actions that, if discovered, would place the victim in fear. The victim does not have to actually be aware she is being threatened. The 10th acknowledged Mr. Gutierrez-Borjas's argument had "some force." So maybe the argument could be successful if preserved in district court.

Saleh v. U.S., 2014 WL 5293687 (10/17/14) (Col.) (unpub'd) - Another statement of the scary notion that if a defendant does not argue in the opening brief an error satisfies the plain error reversal standard then the defendant has waived such an argument even if the defendant raises it in the reply brief after the government claims the error was not preserved. In other words, we may have to argue plain error in our opening briefs even if we believe the issue was preserved if there's the slightest chance the 10th might see things differently.

U.S. v. Brown, 2014 WL 5304891 (10/17/14) (Ut.) (unpub'd) - In the course of rejecting Mr. Brown's claim that counsel was deficient in failing to make a particular argument against the loss amount under the fraud guidelines, the 10th says: "Counsel is expected to test problematic aspects of the government's case, but cannot be expected to run to ground every factual anomaly, particularly one retrieved post hoc from the bowels of the record."

Friday, October 17, 2014

Tenth discusses the reliability prong of FRE 702

In re: Urethane Antitrust Litigation, 2014 WL 4801253 (9/30/14) (Kan.) (Published) - In the course of finding no abuse of discretion in permitting expert testimony, the 10th insists that reliability is primarily a question of the validity of the methodology employed, not the quality of the data used in applying the methodology. It is up to the jury to evaluate the reliability of the underlying data, assumptions and conclusions.

Defense-favorable decision on fraud guidelines; other issues not preserved

U.S. v. Powers, 2014 WL 4801223 (9/29/14) (N.M.) (unpub'd) - The § 2B1.1(b)(14)(A) bump for a fraud where the defendant derives more than a million dollars in gross receipts does not apply even if the whole enterprise hauled in more than a million dollars if some of the criminally-responsible participants "earned" enough money to lower the defendant's individual take below a million dollars.

The Rule 701, lay testimony argument on appeal was not preserved below. Despite numerous objections to bank employees' testimony, none mentioned the Rule 701 issue. In your basic mortgage fraud case, it was not plain error under Rule 701 to admit hypothetical testimony by bank employees that, if the fake incomes had been lower, and the buyers truthfully said the houses were investment properties, and the bank knew the money given at closing would be going to the buyers to make the mortgage payments, the bank would not have approved the loan. The witnesses did have personal knowledge of their employers' lending practices at the time of the offenses and of the particular documents involved by the time of trial. There's nothing inherently inappropriate in asking lay witnesses to answer hypothetical questions, especially when the answers are based on personal knowledge. The questions did not call for particularly specialized knowledge, only basic math, and only relied on the witness having a limited amount of expertise by virtue of his or her position in the business, not on outside expert reports.

Mr. Powers did not preserve an objection to the admission of adoptive business records (one company keeping as business records another company's business records). He did file a proper motion in limine before trial, but the district court did not issue a definitive ruling because it denied the motion "subject to foundation being laid." Mr. Powers did not object to the relevant records at trial. So he's out of luck. Any error in admitting adoptive business records was not plain. Other circuits have adopted the adoptive-business-records doctrine and the 10th has been non-committal.

Upward variance based on speculation affirmed

U.S. v. Zamarripa-Favela, 2014 WL 4921951 (10/2/14) (Kan.) (unpub'd) - Upward variance by the USDC Kansas affirmed. The court varied in a reentry case from a range of 15-21 months to a sentence of 36 months. The district court's speculation that 4 DUI convictions meant Mr. Z-F must have driven drunk on many other occasions was okay because it could sentence Mr. Z-F based on uncharged conduct. The 10th does not address the notion that due process requires some proof of uncharged conduct. The variance was not an abuse of discretion. It was based on that speculation, the dangerousness of the 4 DUIs and Mr. Z-F's 10 reentries. The court's policy disagreement as to how the Sentencing Commission treats prior DUIs is just fine. Finally, the 10th says the court didn't need to give detailed reasons for its sentence, which seems to conflict with the Lente case, 647 F.3d 1021, which requires an explicit consideration of material arguments against an upward variance.

Convictions for unlawful grazing on public lands upheld

U.S. v. Jones, 2014 WL 4938034 (10/3/14) (Wyo.) (Published) - A handy case for the next time you represent a cattle rancher. Mr. Jones is apparently a Cliven-Bundy-type rancher. He couldn't manage to keep his cattle and other stuff off of BLM property since the early 1990's. The 10th held there was sufficient evidence to convict him of 2 counts of unauthorized grazing on public lands given: testimony by several witnesses of his longstanding history of allowing his cattle to graze without permission on public lands; BLM ranger's testimony that the ranger made Mr. Jones aware of the public land boundary line; and tire marks from a dual-wheeled vehicle like Mr. Jones's found near a large number of grazing cattle. There was also sufficient evidence Mr. Jones was guilty of unauthorized use of public lands where: testimony indicated lumber, vehicles and other stuff were left on a BLM allotment; one of the vehicles left was registered to Mr. Jones; the ranger made Mr. Jones aware of the land's public status; Mr. Jones was given 60 days to remove the stuff; he promised to do so, but he didn't.

The state's fence-out law, which apparently requires people to build fences to keep livestock out, does not apply to the BLM. Federal law reigns supreme. So Mr. Jones's proffered testimony by a sheriff that the sheriff believed the fence-out law should apply was irrelevant and, in any event, its admission would violate Evidence Rule 403 because it would cause jury confusion. Mr. Jones received due process by virtue of his trial. It didn't matter that his summons didn't bear the court's seal, that the Interior Secretary did not give written approval of the prosecution, that no administrative process was followed pre-prosecution, or that Mr. Jones received no notice a grazing violation would result in a criminal charge Can you tell this guy was representing himself?

Court finds IAC based on cross-examination of witness, but no prejudice

West v. Farris, 2014 WL 4977587 (10/7/14) (Okl.) (unpub'd) - In this § 2254 case, the 10th finds it to be deficient performance when counsel crossed a state witness about his motivation to fabricate testimony to obtain a reduced sentence without knowing this would open the door to the admission of pre-snitching, consistent statements by the witness. But it was not unreasonable for the state courts to find the deficiency non-prejudicial because counsel was able to recall the witness and cross him about inconsistencies in his testimony that counsel had avoided for fear of opening the door. Also, the 10th was fine with the state courts' finding counsel's decision to be reasonably strategic in the following circumstances: the district attorney's staff told an alibi witness who showed up pursuant to a defense subpoena that she didn't have to worry about the subpoena because only the prosecution could lock her up; she disappeared; counsel couldn't find her in the courthouse and their investigator didn't find her at home; counsel eventually decided to proceed without her because the jury already heard the petitioner's alibi statement. Who needs corroboration of a defendant's alibi after all? If you can't believe the defendant, who can you believe?

Counsel was not deficient in failing to object to special conditions of supervised release

U.S. v. Ray, 2014 WL 5032439 (10/9/14) (Kan.) (unpub'd) - The Supreme Court's decisions in the plea-bargain cases---Frye and Lafler---and in Padilla has not lowered the bar to obtain relief for ineffective assistance of counsel. Counsel did not act deficiently when counsel failed to object to the following supervised release conditions for a child porn defendant: prohibition on unsupervised contact with minors, prohibition on viewing adult porn, requirement of consent to access and examine internet-capable devices; and requirement of substance abuse treatment, where Mr. Ray used to smoke marijuana 3-6 times a week and drank alcohol every month or every other month when he was 20 years old.

Helpful Opinion on Modifying Restitution Orders

U.S. v. Grigsby, 2014 WL 5072589 (10/10/14) (Kan.) (unpub'd) - A partial victory for a defendant acting for the victim. Contrary to the district court's belief, it had the authority to modify its restitution order to change the recipient for the benefit of the minor whom Mr. Grigsby had sexually exploited for child porn purposes. The authority arises from 18 U.S.C. § 3664(k) & 3572(d)(3), which allow modification when financial circumstances change. Mr. Grigsby alleged the child's mother, who received the restitution payments for the child, was neglecting the child to the point where the state had taken custody. He proposed setting up a trust fund. The 10th Circuit's reasoning might be helpful in case a defendant wants other changes in a restitution payment schedule. The 10th just said: "We can find nothing in the restitution-payment statutes which limits the district court from modifying a restitution order" for the purposes Mr. Grigsby sought. Ordinarily the 10th might want a specific authorization, but obviously the 10th wanted to do what Mr. Grigsby asked it to do.

The district court also had authority to modify restitution payments in light of Mr. Grigsby's ongoing divorce proceedings, which might change his financial situation. On the other hand, he couldn't get his supervised release conditions modified. He hadn't appealed them and, besides, his request was a bit premature: he hadn't yet finished his 260-year sentence, which he started in 2013. Nor could Mr. Grigsby change the original restitution amount. He should have appealed that. And he lost his chance to get non-porn photos from his forfeited computer. He was given one chance and gave the photos to his wife. He'll have to fight about that in the divorce proceedings.