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.

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.

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.

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.