4th Circuit Hands Down a ‘Catch-22’ in Brown Case – Update for August 23, 2017

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


catch22cvr170823Those of us approaching social security age lament that the younger among us (and that’s getting to be just about everyone) no longer recalls Joseph Heller’s classic satirical novel about allied bomber pilots in World War II named Catch-22.

The expression “Catch-22” has since entered the lexicon, referring to a type of unsolvable logic puzzle sometimes called a double bind. According to the novel, people who were crazy were not obligated to fly missions, but anyone who applied to stop flying was showing a rational concern for his safety and was, therefore, sane and had to fly.

It’s not a perfect analogy, but the 4th Circuit came pretty close to defining a “Catch-22” on Monday. Thilo Brown had been sentenced as a career offender back in the bad old days, when the Guidelines were mandatory. He had been enhanced as a “career offender” for prior crimes of violence, among those being a prior state conviction for resisting arrest. After the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act’s definition of a “crime of violence” was unconstitutionally vague, people who had been sentenced under the ACCA because of priors like Thilo’s won substantial sentence relief.

Thilo’s problem was that he wasn’t sentenced under the ACCA, despite the fact that the “career offender” Guidelines used the identical, word-for-word language defining a “crime of violence” that the Johnson court threw out of the ACCA. But he dutifully filed a post-conviction motion under 28 USC 2255 asking that his “career offender” status be vacated because of Johnson.

The government argued vociferously against Thilo, maintaining that the Guidelines are different that the ACCA, and that the same language that is unconstitutional in one is hunky dory in the other. The Supreme Court took up the question last spring in Beckles v. United States, and agreed that because the Guidelines merely recommended to the judge how to sentence offenders, if they were a little too vague, there’s no harm done.

But the Beckles Court was careful to explain that it was only deciding the case in front of it, in which the prisoner had been sentenced after the Guidelines became advisory in 2005. The Supreme Court said it was not considering whether the vague “crime of violence” language might violate a prisoner’s due process rights if used to sentence someone under the mandatory Guidelines.

catch22vis170823So Thilo pursued his 2255 motion, arguing that Johnson is a new right recognized by the Supreme Court which does extend to mandatory Guidelines people like himself. This is an important argument, because Thilo’s 2255 motion fell within the time deadline set out in 28 USC 2255(f)(3) only if it was filed within a year of the right he was asserting being recognized by the Supreme Court, and being made retroactively applicable to cases on collateral review.

Everyone had high hopes for Brown. Countless other lower court cases were stayed awaiting the decision. In fact, a 6th Circuit decision last week cited the pending Brown decision as being the one to resolve the question that went unanswered in Beckles: is the “career offender” residual clause unconstitutional when applied to mandatory Guidelines offenders?

The 4th Circuit has now ruled, and it has dodged the issue slickly. The Circuit, in a 2-1 decision, held that Brown’s 2255 petition was untimely.

The panel said the right under which an inmate proceeds has to be a right recognized by the Supreme Court. This means, the Circuit said, that only the Supreme Court can recognize the right. There is no derivative authority. That is, a lower court cannot recognize a right it may believe is implicit in analogous holdings by the Supreme Court.

vaguenes160516The Supreme Court recognized in Johnson that the residual clause of the Armed Career Criminal Act was unconstitutionally vague (a due process violation, because everyone has a 5th Amendment right to understand what conduct is or is not unlawful). However, this recognition does not mean that the right was recognized for “career offenders” sentenced under Guidelines using the same language.

The 4th noted that the Supreme Court said in Beckles that it was not deciding Johnson’s applicability to mandatory Guidelines career offender cases. This merely proved, according to the Brown court, that the Supremes had definitely not yet recognized the right being asserted by Thilo.

Here’s the Catch-22 with the 4th Circuit’s approach. First, accept that no one who has a career offender sentence under the mandatory Guidelines could have possibly been sentenced after 2004, because it would not have been final when United States v. Booker was issued in January 2005, and would have gotten the benefit of a resentencing.

If a “career offender” Guidelines sentence was final on December 31, 2004, a timely 28 USC 2255 motion had to be filed by December 31, 2005. But as of that time, the right to not be sentenced for vague residual-clause offenses was still more than nine years in the future. No 2255 raising the unconstitutionality of the residual clause had any realistic chance of success until the end of June 2015, when Johnson was handed down.

But if the Brown decision is right, in order for such a 2255 to be successful, it had to be timely under 2255(f)(3), because no other subsection would have made such a filing timely.

Except that it could not possibly be timely under (f)(3). The identical “residual clause” language found to be unconstitutional in Johnson could be tested under the advisory Guidelines, because at the time Johnson was decided, people were still being sentenced as career offenders under the Guidelines. Someone could test the language in a 2255 motion filed within a year of finality. But no one could test whether the language remained constitutional if applied to a mandatory Guidelines sentence, because no timely 2255 could be filed challenging its application to a sentence that necessarily had to have been imposed more than nine years before.

Thus, if the 4th Circuit is right in Brown, to assert a constitutional right just recently defined by the Supreme Court, a mandatory Guidelines prisoner would have to have filed the petition challenging it a decade ago, when the right did not exist and he or she would be laughed out of court.

It’s not quite a Catch-22, but it certainly carries the same level of arbitrariness and frustration.

The dissenting judge argued persuasively that the right recognized by the Supreme Court does not have to be the precise application being sought by the petitioner. Instead, alleging a rational and supportable extension of the newly-recognized to a similar fact situation is enough. Certainly, it is more efficient, and is reasonably calculated to do justice.

And should that not count for something?

United States v. Brown, Case No. 16-7056 (4th Cir., August 21, 2017)

– Thomas L. Root


Sentencing Commission Carefully Reads 90,000 Comments… and Makes No Changes – Update for August 22, 2017

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


You recall the flurry of activity in July, as the nonprofit group Prisology encouraged people – inmates, families, friends and advocates – to sign on to comments encouraging the U.S. Sentencing Commission to consider a new Sentencing Table that reduced sentencing ranges across the board?

mouse170822Prisology ended up delivering 62,236 online submissions and an additional 22,000-plus letters supporting its proposal. It delivered over 80,000. In fact, Brandon Sample, president of Prisology, reported to us by email at the end of July that he expected to exceed 90,000 submissions when all was said and done.

Brandon would probably agree with our take that getting the Sentencing Commission to address the Sentencing Table, which has not been amended for other than three minor tweaks in nearly 30 years, is a race that is more of a marathon than a sprint. Still, we thought the Commission might somehow acknowledge the widespread interest in promoting amendment of the Sentencing Table to the Commission’s listed priorities for the coming cycle.

The Sentencing Commission did not. Indeed, one wonders whether it read any of the comments it received. TL;DR, maybe? It’s pretty curious that a side-by-side comparison of the priorities it adopted for the coming amendment cycle shows that they are virtually word-for-word the priorities it originally proposed when it asked for public comment. As Aesop once put it, “The mountain labored mightily, and brought forth a mouse.”

USSC170822To be sure, some of the priorities are promising. Its first goal is to “simplify the guidelines, while promoting proportionality and reducing sentencing disparities, and to account appropriately for the defendant’s role, culpability, and relevant conduct.”

Other priorities include revision of the “career offender” guidelines to “focus on offenders who have committed at least one ‘crime of violence,’ and to adopt a uniform definition of ‘crime of violence’ applicable to the guidelines and other recidivist statutory provisions.” The Commission also hopes to expand the “safety valve” at 18 U.S.C. 3553(f), and to get Congress to eliminate mandatory “stacking” of penalties under 18 U.S.C. 924(c). As well, the Commission wants to “promote effective reentry programs” and perhaps lower guideline ranges for “first offenders.”

All of this is good stuff, but for a couple of provisos. First, the 7-member Sentencing Commission currently only has four members. President Trump and his legal sidekick, Jefferson Beauregard Sessions III, will pick the other three (with one, U.S. District Judge Henry “Hang ‘em High” Hudson as the first choice, as we noted last week). The complexion of the Commission could change drastically in the next few months, and all of the touchy-feely business about actually making the Guidelines fairer and more reasonable could be torpedoed by a 7-member commission with three staunch law-and-order types.

facts170822Second, a lot of what the Commission wants to do – fixing mandatory minimums and expanding the safety valve, for example – will require Congressional action. We have seen how effective Congress can be: last year, the bipartisan sentencing reform legislation died, and this year’s version languishes in committee.

Finally, these priorities are not the same thing as amendments, or even proposed amendments. Something will have to happen to turn intent into action, and then action into retroactivity.

Meanwhile, Prisology finds itself on the beginning mile of a marathon. How it handles the campaign for a more rational sentencing table from here on out will give us an idea of what the organization is made of.

United States Sentencing Commission, Federal Register Notice of Final 2017-2018 Priorities (August 17, 2014)

– Thomas L. Root


Soliciting Your Approval – Update for Monday, August 21, 2017

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

Today, we’re doing some cleanup of recent matters we’ve commented on in the newsletter.


solicit170821The 9th Circuit has ruled that delivery of a controlled substance under Oregon Revised Statute § 475.992(1)(a) (which is now 475.752) permits conviction for delivery based on mere solicitation to sell. Because the federal Controlled Substances Act does not punish soliciting delivery of controlled substances, the Circuit held that the Oregon statute cannot be a categorical match to an aggravated felony for immigration purposes, a holding that would apply equally to the Armed Career Criminal Act or the definition of a “controlled substance offense” under USSG Sec. 4B1.1.

The Circuit additionally held that 475.992(1)(a) was indivisible, meaning that the modified categorical approach could not be used to look at a defendant’s actual conduct leading to the conviction in determining whether it could be used for immigration, ACCA or Guidelines purposes.

Sandoval v. Sessions, Case No. 13-71784 (Aug, 8, 2017) (amended opinion)


virgin170821Other than sacrificing a virgin to stop a solar eclipse, there may be no more futile gesture that convincing a district court to include a judicial recommendation to the Federal Bureau of Prisons in a sentencing judgment. First, 18 U.S.C. 3621(b)(5) absolves the BOP from any obligation to give a flying fig about a judicial recommendation. So as a practical matter, what the court recommends means no more to the Bureau than what an inmate recommends, which is to say ‘nothing’.

Lavoris Martin must have heard ahead about the BOP’s unwillingness to grant more than six months of halfway house, despite its authority to do so, because he had his lawyer ask the sentencing judge to recommend that he get a full 12 months of “community corrections” at the end of his sentence. But the judge refused to even make the recommendation. Lavoris appealed.

Last week, the 11th Circuit ruled that it lacked jurisdiction to review a refusal to give a meaningless recommendation. The Circuit ruled that judicial recommendations to the BOP “are ‘non-binding recommendations,’ not final decisions, and are not reviewable on appeal. So a judge’s refusal to make a recommendation is likewise not a final decision, and an appellate court lacks jurisdiction to hear any complaint that the judge refused to play along with a defendant’s plan.

United States v. Martin, Case No. 16-17353 (11th Cir., Aug. 15, 2017)


The BOP announced on August 1 that it would provide a wider selection of feminine products for female prisoners, both for sale in the commissary and available without charge as part of basic hygiene. While some institutions already provided some of the products, the memo will standardize the offering throughout the system and increase availability for women who cannot afford commissary-only items.

womenprison170821The change came about three weeks after Sen. Cory Booker (D-New Jersey) and Elizabeth Warren (D-Massachusetts) introduced the Dignity for Incarcerated Women Act, aimed at guaranteeing prisoners sufficient access to such products, and to ensure women are not shackled or locked in the SHU while pregnant, charged for phone calls, or kept from contacting their families.

Curiously, the bill – S. 1524 – extends its protections not just to women, but to “primary caregiver parents” of either gender. It includes preferential institution placement for such parents, overnight family visits, and a virtual ban on strip searches by COs of the opposite gender.

Skopos Labs, which develops analytics for legislation, rates the bill as having a 9% chance of passage.

Refinery 29, Female Inmates In Federal Prisons Will Now Have More Access To Tampons & Pads (Aug. 14, 2017)

S.1524, Dignity for Incarcerated Women Act (July 11, 2017)

–Thomas L. Root


6th Circuit Holds Mandatory Guidelines Johnson Issue Not Timely – Update for August 17, 2017

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


split170818Back in medieval times (before 2005), when Guidelines sentencing ranges were mandatory, Jerome Raybon was convicted in federal court of drug distribution. His prior state convictions qualified him under the Guidelines as a “career offender,” thus mandating a much more severe sentence.

One of those prior convictions was the Michigan offense of assault with intent to do great bodily harm. On its face, such an offense sounds like a crime of violence, which is what it had to be to help qualify Jerome as a career offender. But after the Supreme Court handed down Johnson v. United States in 2015, Jerome filed a petition under 28 USC 2255, arguing that the assault conviction was no longer a crime of violence, and his “career offender” status was incorrect.

Johnson151213Of course, Johnson – which held that the part of the “crime of violence” definition that included any offense that carried a significance of injury was unconstitutionally vague – applied to the Armed Career Criminal Act. Two other means by which a prior conviction could be considered a crime of violence were not affected by the decision. Also, the definition of “crime of violence” in Chapter 4B of the Sentencing Guidelines, although identical, was never considered by the Johnson court.

Unsurprisingly, a subsequent case – United States v. Beckles – found its way to the Supreme Court in short order, asking whether Johnson should apply to Guidelines career offender sentences. Last spring, the Supreme Court said it did not, at least not to “career offenders” sentenced under the advisory Guidelines. The Court pointedly said that its decision did not extend to any old sentences under the mandatory Guidelines that might be knocking around.

For their first 16 years of operation, as everyone knows, the Sentencing Guidelines were mandatory, and a judge had to sentence within the specified range except in the rarest of circumstances, when the court could justify a “departure” up or down from the range. Even then, the departure was strictly regulated by the Guidelines.

However, in 2005, the Supreme Court held in United States v. Booker that mandatory sentencing guidelines were unconstitutional. The Court struck the requirement that the Guidelines be followed from the statute, and the Guidelines have been advisory ever since.

So we have split a hair in Johnson, and split that split hair in Beckles. It was inevitable that a case like Jerome’s would arise.

splitB170818The district court said that Jerome’s 2255 motion was untimely, because his argument against the Michigan assault conviction was not that Johnson made it inapplicable, but rather that another case addressing one of the other means of defining a crime as violent – which had been handed down in 2010 – was what disqualified the assault.

Jerome appealed. Earlier this week, the 6th Circuit agreed with the district court, but for a very different reason.

Jerome’s problem, the Court said, was that for his 2255 motion to be timely, it had to be filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 USC 2255(f)(3). But due to the Supreme Court’s repeated hair-splitting, the precise issue – whether Johnson applied to an old mandatory Guidelines sentence – has not been decided. In fact, the Supreme Court explicitly said in Beckles that it was not deciding the question of whether Johnson applied to Jerome’s situation.

violent160620Because of that, Jerome’s petition was untimely, and it had to be dismissed. While you would think that settled the matter, the 6th Circuit decided to address his argument anyway, and quickly concluded that, of course, Michigan’s “assault with intent to do great bodily harm” statute remained a crime of violence under the definition even if Johnson did apply. No surprise there.

Whether Johnson will offer relief to any of the 7% or so of federal inmates serving the old mandatory Guidelines sentences is being litigated in several Circuits. The closest case to decision is probably the 4th Circuit case, United States v. Brown, Case No. 16-7056, argued May 11, 2017.

United States v. Raybon, Case No. 16-2522 (6th Cir., Aug. 14, 2017)

– Thomas L. Root


Judge Boyle’s Mouth Buys Defendant a New Trial – Update for August 16, 2017

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


We’ve had dealings with many federal judges in our day, and we have been impressed by most of them. If we were a criminal defendant, we would want to appear in front of a Mark Bennett (N.D. Iowa), a Jed Rakoff (S.D.N.Y.), a Jack Weinstein or (retired) John Gleeson (E.D.N.Y.), or a Jeff Helmick (N.D. Ohio). Not because these guys are soft on defendants, but because they’re thoughtful and fair.

Boyle170817We won’t name any of the judges on the other end of the scale save one, who is the subject of today’s case. We have some experience with Hon. Terrence W. Boyle, U.S. District Judge for the Eastern District of North Carolina, and that experience left us all too able to believe the experience that would-be U.S. citizen Hemza Menade Lefsih, a native Algerian, had in Judge Boyle’s courtroom.

Judge Boyle has a distinction of being among the most reversed – if not the most reversed – district judge in the 4th Circuit. Twice he has been proposed for elevation to the 4th Circuit Court of Appeals – once by President George H.W. Bush and again a decade later by President George W, Bush – and twice the appointment has not been approved by the Senate. While his opponents included predictably liberal groups, Judge Boyle’s fitness has been roundly questioned “over concerns about competence not conservatism.” Notably, many of his reversals were for F.R.Crim.P. 52(b) “plain error,” mistakes so substantial and obvious that they merited reversal even when the defendant had not objected in the trial court.

Hemza could tell you all about that. Initially, he had immigrated to the United States some years ago through what’s known as the Diversity Immigrant Visa Program. The Diversity Program awards permanent residence immigration visas – “diversity visas” – to individuals from countries with historically low immigration numbers on the basis of a random lottery system. Hemza won a lottery slot and received a diversity visa. As allowed under the Diversity Program, he then applied for citizenship five years after coming here.

ticket170817Question 23 on the application form asks whether an applicant has “ever been arrested, cited, or detained by any law enforcement officer . . . for any reason.” Hemza, who had worked as a cab driver, answered “no” to Question 23, despite the fact he had gotten 11 traffic tickets during his driving career. He thought Question 23 referred only to serious criminal offenses that resulted in arrests or detentions and not to traffic tickets, and so believed that he was answering the question truthfully.

Because Hemza failed to acknowledge his traffic tickets in answer to Question 23, the government – which should have had better things to do – charged him with making a false statement and immigration fraud. The government had no direct evidence that Hemza knew his answer to Question 23 was false. Instead, it relied on circumstantial evidence and its classic “smear the defendant” strategy.

An Immigration and Customs Enforcement agent testified that Hemza was proficient in English and had advanced education. In addition, the agent called Hemza’s motives in entering the Diversity Program into question, saying that in his experience, it was unusual that someone like Hemza would apply only for a diversity visa instead of a student visa, and probably did it because there were fewer restrictions on him as a diversity program entrant.

When the government’s next witness testified that the Diversity Program was established by Congress so that people from countries with historically low immigration rates would have an opportunity to live permanently in the United States, Judge Boyle could not restrain himself:

District court:  You’re saying that Congress has set up a law that your agency enforces that invites people to come to America from places where they don’t normally come to America?

Special Agent Freitas:   Yes.

District court:   That’s incredible. And the reason that they don’t come to America is because they haven’t tried to come to America? Is that it?

Special Agent Freitas:   Usually because of – they may not have family members here from those countries or employment opportunities.

District court:   Okay. Do you think anybody in America knows about this, other than the Committee that sent it through Congress? Probably not.

Special Agent Freitas:   I didn’t know it before I started –

District court:   And it’s your job. Don’t you love Congress? I mean, unbelievable, unbelievable. I’m sitting here 32 years, first time I ever heard this. And you’re talking about the hundred countries that nobody could name if they had a list of 180 countries in the world?

Special Agent Freitas:   Yes.

District court:   The bottom hundred.

inconceivable170817Judge Boyle carried on like this for an extended period, at one point complaining that “so if you get lucky and win the diversity lottery and get a card to come to America you can drag along your ten kids and four wives or what?” He whined that where some programs admitted people Aren’t there quotas on people coming from countries that send a lot of people here, and you who had proven they were “a doctor, an engineer or a rocket scientist or someone who is going to contribute to the well-being of the United States of America and make it a better place to live because of your skill or personal characteristics,” the Diversity Program used by Hemza told people “in the bottom hundred countries in the world, just come on.”

Hemza was his own witness, explaining his incorrect answer to Question 23 was an honest mistake, rather than a knowing falsity, that “he did not understand what the word ‘cited’ meant, or that “traffic tickets are actually included in the word cited.” Instead, because the word “cited” appears between “arrested” and “detained” in Question 23, Hemza assumed that it carried a similar meaning: being taken into custody. He testified, “It never occurred to [me] that [a] traffic ticket could be [a] criminal offense.”

Hemza was convicted. Ironically, at sentencing, Judge Boyle said he believed Hemza was “sincere” in his account of his “unknowing mistake,” thus putting meat on the bones of the old saying that “it takes a good prosecutor to convict the guilty, but it takes a great prosecutor to convict the innocent.”

judge160222This time, the 4th Circuit ruled earlier this week, the “great” prosecutor had help. The appellate court reversed Hemza’s conviction, holding that Judge Boyle’s diatribe about the Diversity Program denied him a fair trial.

A federal judge need not sit silently during the presentation of evidence at trial. “There is no question,” the Court of Appeals said, “that in these core matters of trial management, a district court is granted broad discretion.”

But there are limits, and Judge Boyle – unsurprisingly to us – exceeded them. “This jury,” the 4th Circuit said, “would have no need to deduce from a pattern of interruptions or questions that the district court was skeptical of the defendant; here, the district court conveyed that skepticism directly. In the context of an immigration-fraud case – that is, with immigration front and center before the jury – the court began with a series of questions and comments suggesting a negative view of the very immigration program through which Lefsih had entered the country: ‘[U]nbelievable, unbelievable.’ And contrary to the government’s argument, what reasonably could have appeared to the jury as the court’s disapproval did not stop with the Diversity Program itself, or the Congress that established it. Instead, the court went on to provide a negative assessment of the people – like Lefsih himself – who make use of the Diversity Program to come to the United States.”

boyleB170817This was a case in which the credibility of the defendant was of “crucial importance,” and as a result, aspersions cast by the court on the trustworthiness of Diversity Program entrants would have carried special weight. The Circuit Court concluded that “it is enough to say” that Judge Boyle’s comments “taken together, would have conveyed to the jury the court’s ‘negative impression’ of the Diversity Program and the immigrants who avail themselves of the Program, and thus of Lefsih himself.”

The 4th Circuit includes the obligatory “we do not doubt that the district court in this case acted without any intent to influence the jury improperly” language, but veteran Judge Boyle watchers recognize that statement for the mandatory fig leaf that it is.

Hemza will get a new trial.

United States v. Hemza, Case No. 16-4345 (4th Cir., Aug. 14, 2017)

– Thomas L. Root


EDNY Judge Blasts Veteran Defense Attorney for ‘Inexcusably’ Abandoning Client – Update for August 15, 2017

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


hats170816Federal criminal cases generally move along at a brisk clip (“brisk” here being a relative term in the judicial system). For instance, the Speedy Trial Act requires that trials begin 70 days after indictment (although the statute has more holes than a Swiss cheese factory). Courts are usually parsimonious with continuances. Federal criminal subpoenas are sufficient to haul in witnesses from anywhere Old Glory flies, and motion deadlines are abbreviated.

When final judgment is rendered and the sentence imposed, a criminal defendant has a mere 14 days to file a notice of appeal, if he wants to challenge the conviction or sentence in the court of appeals. In the more casual federal civil world, parties wishing to appeal have 30 days, and if the party is part of the government (where nothing is done quickly), it has 60 days.

Adding to the tight appeal deadline is the fact that the defendant is often otherwise occupied, being in jail awaiting the bus ride to his or her final prison destination. It really falls to the defendant’s lawyer to get the notice of appeal – which, after all, is all of a paragraph long – on file.

deadline170816If a defendant misses the 14-day deadline, he or she has one final shot, a 30-day period after that during which the district court may extend the filing deadline for “excusable neglect or good cause.” An Eastern District of New York defendant successfully made that showing the other day – a rare occurrence – and in so doing drawing an unusual scorching for his lawyer from the court.

David Gotterup, who was convicted of mail, wire and bank fraud, was sentenced to 135 months on June 1 of this year. Although he had two lawyers representing him, he had to get his brother – who was not an attorney – to drop off his notice of appeal at the court. His brother, being a busy guy, got it there one day late, on June 16 instead of June 15. Dave promptly filed for permission to file one day late.

Eastern District of New York Judge Nicholas Garaufis held a hearing on Dave’s motion just a week ago. It found that Dave had told Joseph Conway, one of his lawyers, right after sentencing that he wanted to appeal. Dave said so. Lawyer Conway said so, but he also explained that Dave’s plea agreement contained an appeal waiver.

Dave pointed that even under the waiver, he was allowed to appeal on ineffective assistance of counsel grounds. Lawyer Conway said he told Dave that “he could file an appeal and ask for new counsel” if he wanted to. Conway even helped Dave’s brother complete the notice of appeal form and gave him filing instructions.

Dave, on the other hand, claimed he “was always under the impression that Mr. Conway was filing the appeal and that the appeal was in motion.” He thought the “only delay” was the filing fee that his brother “went and paid.” In fact, right up to the August 1 hearing, Dave “didn’t actually know that [he] was filing a motion… to be completely honest, I thought I was being represented by Mr. Conway in my appeal.”

ignore170816The District Court found excusable neglect justifying Dave’s late filing “due to the fact that Defendant reasonably believed that Trial Counsel was handling the filing of his notice of appeal.” Dave had promptly told his Conway he wanted to appeal, and because he was locked up, he had to rely on Conway to get the job done.

Judge Garaufis found that Conway’s later attempts to shift responsibility for the filing to Dave “understandably confused Defendant,” and clearly was skeptical about the lawyer’s story:

Mr. Conway represents that after the Amended Judgment was docketed, he told Defendant that he would need to file his notice of appeal pro se. Defendant avers that Mr. Conway ‘never said anything about a pro se representation.’ Even assuming that Mr. Conway’s version of the facts is true, Mr. Conway’s actions thereafter proved to be inconsistent with his directive that Defendant should proceed pro se. First, by Mr. Conway’s own account, Mr. Conway invited Defendant’s brother to his law office to help him fill out the notice of appeal form. It is not as though Mr. Conway extricated himself from the filing entirely. As such, Defendant’s belief that his brother ‘wasn’t filing a notice of appeal’ and was merely ‘picking up paperwork from Mr. Conway to drop off at the court,’ was entirely reasonable.

conway170816Second, after the Amended Judgment was entered, Mr. Conway continued to represent Defendant with respect to the restitution portion of his case. At the Hearing, Mr. Conway appeared to argue that his representation ended when the Amended Judgment was docketed on June 1, 2017; however, the Government represents that, as late as June 23, 2017, Mr. Conway was still acting as counsel for Defendant.

Judge Garaufis felt lied to, and made that clear, saying that “Conway misled the court by stating that once the Amended Judgment was filed, his ‘services to [Defendant] were over’… This splitting of hairs understandably confused Defendant. It is entirely reasonable for a defendant to think that an attorney handling one aspect of the case is handling the case in its entirety.

Conway argued that his retainer agreement did not contemplate appellate work, and that Dave’s plan to claim lawyer ineffectiveness precluded Conway – the presumed target of that claim – from filing the notice of appeal. The District Court noted that Conway was not just an experienced defense attorney but a former Assistant U.S. Attorney for 15 years who headed E.D.N.Y.’s criminal division. “As such,” the Court said, “he is quite obviously aware of trial counsel’s obligation to protect the appellate rights of a criminal defendant by timely filing a notice of appeal.”

interrupt1700816Judge Garaufis wrote that Conway “abandoned his client and left the task of filing a notice of appeal to his incarcerated client and Defendant’s brother who, importantly, is not an attorney… Based on Mr. Conway’s conduct, Defendant has a plausible claim of malpractice against his attorney. The court said Conway’s refusal to file the notice of appeal was “inexcusable as a matter of ethics and professionalism. As such, the court intends to refer this matter to the Committee on Grievances…”

Conway told New York Law Journal last Friday “I wholeheartedly disagree with the decision and look forward to an opportunity to present my case.” He apparently overlooked that he had a chance to present his case in front of U.S. District Judge Nicholas Garaufis a couple weeks ago. And that did not turn out so well.

United States v. Gotterup, Case No. 15-CR -498 (E.D.N.Y., August 14, 2017)

– Thomas L. Root


FOIA Lessons from the Feebs – Update for August 14, 2017

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


goats170815Anyone who has ever sought law enforcement records under the Freedom of Information Act has run into Exemption (b)(7), which permits agencies to withhold records compiled for law enforcement purposes if release could reasonably be expected to interfere with enforcement proceedings, constitute an unwarranted invasion of personal privacy, or do several other things. Over the years, it seems, any agency employee too uncreative to find some basis for exempting records under (b)(7) was sent to the agency office in Bighorn, Montana, to count mountain goats.

In 2008, author Angela Clemente sought FBI records about a mob informant. That FOIA litigation finally clattered to a conclusion last week, as the D.C. Circuit Court held that the district court – which had gotten tired of the plodding pace of the litigation – was right to pull the plug on the case after Angie failed to promptly respond to the FBI’s third Vaughn index (which is an index of withheld records, with an explanation of why each one is being withheld).

The case is a great primer for anyone pursuing agency records under the FOIA.

Lesson 1: Agencies have 20 working days to tell you whether they’re going to grant your FOIA request, but no one pays any attention to this deadline. You should. After the 20th day, you may assume denial and sue in district court. Angela did. Had she waited on the agency, add a couple more years to the process.

purloined1700815Lesson 2: Send all communications related to your FOIA request by certified mail. Angela did not, and the FBI swore it never saw a crucial letter that redefined the scope of her request. The Circuit said that was Angie’s tough luck, because she could not prove the agency had gotten it.

Lesson 3: Read the agency’s FOIA rules. At the time Angela filed her request, the Department of Justice rules governing requests to the FBI said that FOIA requests for field office records had to be sent to the field offices. Because she did not, the Circuit said, the New York office – which had most of the mob informant’s files – had no obligation to produce anything.

carter170815Lesson 4: The FOIA playing field is tipped in favor of the government. If an agency produces a Vaughn index with a summary statement of why each document is exempt, a requester has a very high mountain to climb to show that the agency is wrong.

Even with the help of a mountain goat.

Clemente v. FBI, Case No. 16-5067 (D.C. Cir., Aug. 11, 2017)

– Thomas L. Root


Dept. of Justice Gets Tough With Sentencing Commission – Update for August 10, 2017

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


The United States Sentencing Commission, a 7-member judicial agency charged with writing and amending the federal sentencing guidelines faced a manpower crisis earlier this year, as only two voting members remained. The Senate increased that number to the minimum needed for a quorum by approving two Obama holdover nominations in March.

Nevertheless, the shortage of a voting quorum for three months left the Commission unable to assemble a slate of sentencing guidelines amendments for 2017. To get the Commission back to fighting trim will require three more commissioners be appointed by President Trump and approved by the Senate.

Attorney General Jefferson Beauregard Sessions III

Enter everyone’s favorite compassionate conservative, Attorney General Jefferson Beauregard Sessions III. Sessions yesterday urged the White House to nominate federal judge and ex-prosecutor Henry E. Hudson to the Commission. Judge Hudson, who as a prosecutor was nicknamed “Hang ’Um High” Henry Hudson and said he lived to put people in jail, earned fame as a prosecutor for railroading a developmentally disabled man into prison for a rape he didn’t commit. Hudson’s successor exonerated the man when inconsistencies in the case led detectives to pursue other leads, ultimately linking a serial killer to the murder. Faced with the evidence that he had convicted the wrong guy, Hudson wrote in his memoirs, “I certainly wish him the best, and regret what happened. However, I offer no apologies.”

HudsonA170811At the same time, Sessions is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In public comments filed with the Sentencing Commission on July 31, the Dept. of Justice asked it to preserve mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

hudsonB170811DOJ also encouraged the Commission to abandon the categorical approach (Mathis v. United States) for determining which state crimes are crimes of violence supporting much higher sentencing ranges for “career offenders.” The Department complains that the “categorical approach,” which requires courts to “focus solely on whether the elements of the crime of conviction sufficiently match the elements of a generic version of the crime,” focuses on the abstract elements of the statute “and largely ignores the conduct that the defendant actually committed. This approach has resulted in some repeat violent offenders… receiving a sentencing range that is lower than their conduct and criminal history warrant. The categorical approach also consumes an inordinate amount of time for trial court judges, appellate court judges, probation officers, prosecutors, and defense attorneys.”

hangem170811DOJ argues that “the time has come to abandon the categorical approach in those cases involving the enumerated felonies clause. The Department would be pleased to work with the Commission to develop a workable and fair approach that focuses less on formalism and more on the defendant’s conduct.”

Of course it would. And Judge Henry “Hang ‘Em High” Hudson is just the kind of commissioner with whom DOJ would like to work.

Dept. of Justice, Response to Request for Public Comment, Proposed Priorities for Amendment Cycle, 82 FR 28381(filed July 31 2017)

Wall Street Journal, Sessions Promotes Tough-On-Crime Judge for Sentencing Panel (Aug. 10, 2017)

– Thomas L. Root


You Can Love Your Lawyer Too Much – Update for August 9, 2017

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


defiance170811There’s an old legal joke about the difference between an attorney and a rooster. The punch line goes something like “A rooster clucks defiance.

Putting some meat on those bones is New York attorney Harvey Slovis. Harv represented Oksana Romalis, a school teacher caught up in a multi-defendant scam to rip off the Conference on Jewish Material Claims Against Germany. The Conference is a not-for-profit organization that supervises and administers several funds that make reparation payments to victims of Nazi Germany, distributing hundreds of millions of dollars annually in direct payments to tens of thousands of victims in 80 countries and territories. The government alleged that Oksana and others recruited people who lived at about the right time to be victims, and engineered phony applications for compensation. The head of one of the Conference funds would then approve the bogus claims in exchange for a cut of the payment. The decade-long fraud stung the Conference for over $57 million.

Only three of the 31 defendants went to trial. Oksana was one of them. In a post-conviction petition she filed under 28 USC 2255, Oksana claimed that her lawyer was ineffective for not telling her that she could get the 46-month sentence she ended up with, which was her reason for rejecting a government offer of a 21-27 month sentencing range.

Last week, the district court rejected Oksana’s ineffective assistance claim, holding that a lawyer’s failure to accurately predict that her sentencing range might start 10 months above the sentencing range offered by the government was not a big enough difference to show that she was prejudiced by counsel’s overly-rosy predictions that she could win at trial.

lovelawyerB170811But the more interesting allegation Oksana made, rejected by the court, was that she and “and Slovis were involved in a relationship, ‘frequently went on dates together, and became intimate’.” The court noted that “in text messages between the two, Slovis and Romalis expressed affection for each other and often used terms of endearment. Romalis says that her decision to reject the Government’s plea offer was based on her intimate relationship with Slovis. Romalis also speculates that “Slovis was motivated by romance and money,” and “was stringing her along in order to prolong their relationship.”

The district court was unimpressed. To be sure, a defendant’s 6th Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel. But conflict-free counsel does not necessarily mean that the 6th Amendment enforces the canons of legal ethics. The court said, “the existence of an intimate relationship between a defendant and counsel may not always amount to a conflict of interest, even if it violates the code of professional ethics.”

lawyerlove170811Here, Oksana was obligated to prove that her affair with Harvey either adversely affected his performance or otherwise prejudiced her interests. Oksana speculates that Harvey improperly advised her in conjunction with the plea offers because he wanted to continue their relationship as long as possible. However, the district court held, Oksana had to “provide more than that to demonstrate that Slovis’s performance was adversely affected by his relationship with her.” At sentencing, Oksana tried to convince the court she had only gone to trial instead of pleading guilty because she knew that if she was convicted, she would lose her teaching license. That assertion came back to bite her. The court didn’t buy her 2255 claims that Harv had advised her wrong on plea offers because she was his “squeeze.” Instead, the court held Oksana to her prior claim she had rejected the offers because she hoped to win at trial and keep her teaching certificate.

Sec. 2255 directs a district court judge to consider a defendant’s claims in light of the entire record of the trial and post-conviction proceeding. That’s what the judge did here, much to Oksana’s chagrin.

Harv is probably not out of the woods. Most jurisdictions have rules of professional conduct that prohibit a lawyer sleeping with a client, which is enshrined in American Bar Association Model Rule of Professional Conduct 1.8(j). We at least hope that Harvey didn’t bill Oksana for the time they spent horizontally. It’s happened before.

Romalis v. United States, Case No. 1:11-cr-00120 (S.D.N.Y. Aug. 4, 2017)

– Thomas L. Root


10th Circuit Orders “Good-Faith” Review of Prosecution Refusal to Give Substantial Assistance Credit – Update for August 8, 2017

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


pleading170502Here’s a conundrum. A whopping 97% plus of federal criminal defendants resolve their cases through plea bargaining. The strong majority of those people are guilty, if not of the charged offense, then of something related to but less than what was charged. A few are innocent, but can read the handwriting on the wall.

And what is that handwriting? The federal conviction rate, including both guilty pleas and trials, was 99.6% in 2016. By comparison, China’s is 99.92%, something we find worthy of criticism as “rule by law” rather than “rule of law.” In James Michener’s historical novel, Poland, he recounts that the Gestapo ran a kangaroo court in the Warsaw Jewish ghetto during World War II. For every 10,000 defendants who appeared in front of the Gestapo officers, 9,700 were convicted of some crime or another and sent to the camps. Lucky for those Polish Jews that they were not appearing before a federal district court: had they been, 9,960 of them would have been convicted.

snitch161004All of that is interesting, but is grist for another day. Instead, we want to focus on the many plea agreements that mention a defendant’s cooperation with the government. Cooperation is critical for many defendants, because only a motion for a downward sentence departure under USSG Sec. 5K1.1 because of substantial assistance (or, after the sentence, a motion pursuant to F.R.Crim.P. 35(b)) can let a judge sentence a defendant without regard for any mandatory minimum sentence statutes.

A defendant wants the government’s promise to be set in stone to the extent possible. No one wants a plea agreement with some mealy-mouthed commitment to “see what we can do later.” At the same time, the government cannot very well promise to move for a 50% sentence cut if the guy’s testimony successfully hangs his co-conspirator out to dry. A defense attorney would have a field day with such a promise, arguing to the jury that the cooperator’s testimony is bought and paid for (which is what it usually is). The government keeps things suitably vague, so a defendant can testify “no one has promised me anything, “despite the fact that his attorney has explained that if he plays ball with the prosecution, he’ll probably get a third or better off his sentence.

Unsurprisingly, the vagueness of the government’s plea agreement promise – which is always something like

if in the sole and unreviewable judgment of the USAO the defendant’s cooperation is of such quality and significance to the investigation or prosecution of other criminal matters as to warrant the Court’s downward departure from the advisory sentencing range calculated under the Sentencing Guidelines and/or any applicable minimum mandatory sentence, the USAO may make a motion prior to sentencing pursuant to Section 5Kl.1 of the Sentencing Guidelines and/or Title 18, United States Code, Section 3553(e), or subsequent to sentencing pursuant to Rule 35 of the Federal Rules of Criminal Procedure, informing the Court that the defendant has provided substantial assistance…”

quicker170809Hardly a solid promise. In fact, it reminds us of that insurance commercial where the policyholder is trying to snag a dollar refund, only to be told “Oops, almost had it. You gotta be quicker than that.”

Still, the government usually comes through, because if it did not, word would get around and the pool of willing snitches would dry up fast. But there are times the government refuses or fails to come through. In those cases, what does a defendant do?

That is exactly the question John Doe (not his real name) asked himself. Facing a couple of serious drug distribution offenses, John made a plea deal which included a “substantial assistance” commitment like the one we quoted above. After John’s guilty plea, the district court didn’t sentence him right away, but instead held him in protective custody while he and a family member (Jane Doe, perhaps) helped the cops bring down a local drug operation. That cooperation placed both of their lives at risk.

The Assistant U.S. Attorney was happy with John’s assistance. However, the government, being the bureaucracy it is, ran substantial assistance requests through a committee. The AUSA twice asked the downward departure committee to approve the filing of a substantial-assistance motion on John’s behalf. Without explanation, and despite the opinion of both the AUSA and the local police, the committee denied the request.

goodfaith170809John filed a motion with the court to enforce the plea agreement. Citing general contract-law principles, he argued the government had acted arbitrarily and in bad faith by refusing to file a substantial-assistance motion. The district court denied John’s motion, reasoning that the plea agreement’s plain language left the decision to file a substantial-assistance motion to the government’s sole discretion. Based on a Guidelines range of 121 to 151 months in prison and a mandatory minimum of 120 months, the district court sentenced John to 121 months.

Last Friday, the 10th Circuit reversed the sentence. The Court held that under the Supreme Court’s decision in Wade v. United States, the district court was empowered to determine whether the denial of a Sec. 5K1.1 motion was “based on an unconstitutional motive” or “not rationally related to any legitimate [g]overnment end.” But, the Circuit said, Wade did not say that those were the only reasons for reviewing a government refusal. Rather, plea agreements are contracts, and contractual disputes are subject to certain legal principles.

One such principle is that “every contract imposes upon each party a duty of good faith and fair dealing in its performance.” And “courts are quite practiced at determining whether an allegation of bad faith has been established.” The 10th said that applying this contract principle, “the sole question before a district court undertaking such review is whether the government’s refusal to file a substantial-assistance motion is based on an honest evaluation of the assistance provided and not on considerations extraneous to that assistance… [I]f the government wishes to avoid even this minimal level of scrutiny, it can easily do so: it can decline to include discretionary substantial-assistance clauses in its plea agreements.”

badfaith170809Of course, the government is not about to exclude the language, because that language is a big selling point to attract defendants to plea deals. Those defendants who “bargain away important rights in reliance on those clauses are entitled to a “reasonable expectation of receiving something in return for the surrender of their rights — i.e., a discretionary evaluation of their cooperation in good faith.” Accordingly, the Circuit said, “even when a plea agreement gives the government complete discretion to decide whether to file a substantial-assistance motion, a court may nevertheless review whether the prosecutor has made its determination not to file such a motion in good faith.”

For a defendant seeking to trigger a good-faith review of a prosecutor’s discretionary refusal to file a substantial-assistance motion, he must “first allege that the government acted in bad faith. The government may then rebut that allegation by providing its reasons for refusing to file the motion. Assuming those reasons are at least facially plausible, we hold that a defendant is only entitled to good-faith review if he or she produces evidence giving reason to question the justification the government advanced.”

The district court’s refusal to consider whether the government acted in good faith required that the case be remanded.

United States v. Doe, Case No. 17-604 (10th Cir., Aug. 4, 2017)

– Thomas L. Root


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