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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root



Brady Takes a Hit (Maybe) – Update for June 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.


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

  • Brady Material Not Material

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

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

– Thomas L. Root


All Animals Are Equal But… – Update for June 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.


Terry Joe Smith was a bully. He liked to beat the crap out of people. But that kind of conduct is illegal for most bullies, so Terry Joe joined the Putnam County Sheriff’s Office as a deputy.

Putnam County, Indiana, with fewer people (40,000) than attend a typical Indiana University football game, does not appear to have much going for it. The official Putnam County visitors’ website, which hasn’t been updated in about 10 months, is mostly dedicated to ads for the next county to the west.

tjsmith170623But, however humble, it was home to tiny (6’3”, 270-lb) Terry Joe, whose career included protecting (and representing on city council) the fine people of Greencastle. Terry Joe kept the citizenry safe b, among other things, punching an arrestee – who was under the control of four other cops – in the face with a closed fist, which two other deputies testified sound like “a tomato hitting a concrete wall,” sending the poor perp away in an ambulance. Terry Joe was impressed with that one, bragging afterward about the punch and making fun of the deputies who found his conduct objectionable.

In another incident, Terry Joe was leading a drunken domestic violence defendant to the squad car. He lifted the handcuffed suspect into the air, threw him face-first onto the ground and drove his knee into the man’s back with such force that the man defecated on himself. Terry Joe liked that move, and told other deputies it wasn’t the first he’d made a defendant soil himself with a knee in the back.

He must have been very persuasive as a campaigner for city council. Greg Gianforte could have learned from this guy.

sipowica170623We had an old law partner who liked to say that “no thief steals only once.” Likewise with Terry Joe. He was prosecuted for the punch and knee incidents, but those were just the tip of the iceberg. Besides the incidents he liked to brag about, Terry Joe had beaten up juveniles at the correctional center, surreptitiously recorded inmate conversations, provided favored detainees with tobacco, and collected county pay while on the payroll of a private security company. Terry Joe even beat up a 3-year old (and his mother, when she tried to intervene). NYPD Blue’s Andy Sipowicz was once described by Jason Gay of the Boston Phoenix as being a “drunken, racist goon with a heart of gold.” Had Jason described Terry Joe, he would just shortened the description to one word: “goon.”

Terry Joe’s highjinks were finally too much for Putnam County. First, he was fired by the Sheriff for beating some prisoners and giving cigarettes to others, then fired from the Plainfield Juvenile Correctional Facility for beating two juveniles and lying about it, then fired by Putnam County for the “ghost employment” incident, and finally fired again by the Sheriff (who, incredibly enough, had rehired him) for the fist and knee incidents.

putnam170623But nobody charged him criminally until the Feds came along, and a jury convicted him under 18 USC 242 of violating defendants’ rights under color of law. With a Guideline sentence of 33-41 months, the federal judge found Terry Joe had had a rough childhood, he was a hard worker, and the community supported him (at least, the ones he hadn’t made crap on themselves). Terry Joe got 14 months.

The 7th Circuit threw out the downward variance from the Guidelines as being leniency not supported by the record. The Circuit said,

although a sentence that low need not be unreasonable, the farther a judge strays from the guidelines range, “the more important it is that he give cogent reasons for rejecting the thinking of the Sentencing Commission.” We took issue with the court’s conclusion that Smith was unlikely to re-offend if he addressed his anger management issues. Nothing in the record described the anger management program that Smith was required to undergo as a condition of supervised release and there was reason to question the efficacy of such an undefined program in light of Smith’s history of violence and bizarre conduct towards the victims of his offenses of conviction.

bully170623The case went back to the district court, and by the time Terry Joe was resentenced, he had done his 14-month bit. At the resentencing, Terry Joe gave the judge an extended sob story about how hard prison was, how rubbing shoulders with other inmates gave him new-found respect for the people he used to beat up, and that he now knew that defendants (like himself) should be given short sentences. The district judge, no doubt shedding a tear, tiptoed through the sentencing factors of 18 USC 3553, and gave Terry Joe the same 14 months:

I do not see any benefit in reincarcerating Mr. Smith. His anger control counseling would be interrupted. He will lose his job again. He will also disrupt the stability of his children, whom I assume have now adopted [sic] to having him back in the home.

On Monday, the 7th Circuit threw up its hands, threw out the sentence, and threw the case over to a new judge. The appeals court held the district judge erred procedurally by failing to adequately explain or justify the significantly below-guidelines sentence that he rendered. The district court relied on guidelines section 5K2.10, which lets a court depart downward if “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” But the district court made no finding that the detainees beaten by Terry Joe had done anything (other than be arrested) to “provoke” the bully deputy. “Nor,” the Circuit said, “did the court consider the factors set forth in the guidelines policy statement, such as the relative size and strength of the victim compared to the defendant, the persistence of the victim’s conduct, efforts by the defendant to prevent the confrontation, and the proportionality and reasonableness of the defendant’s response to the victim’s provocation, among other things.”

The 7th said Terry Joe’s crimes were plain vanilla “excessive force” crimes, and nothing about the “nature and circumstances” of the offense justified cutting Terry Joe a break. Terry Joe went to trial and never accepted responsibility for his conduct. Terry Joe tried at resentencing to “take ownership” of his crimes, but he did so without ever expressing remorse for, or even mentioning, the victims.

The appellate panel said

On release from prison, Smith reunited with his family, which continues to support him. He once again became employed, and began an anger management program. He completed his sentence without conduct violations. These are laudable, positive signs but Smith still has not admitted the conduct underlying his conviction or expressed remorse for the harms he caused. This relatively minor evidence of rehabilitation must be assessed in light of Smith’s history and characteristics. The government’s accounting of Smith’s appalling history includes an attack on a three-year-old child that left the child bruised and bleeding; an attack on that child’s mother when she tried to intervene to protect the child; unprovoked, premeditated beatings of two juveniles in custody followed by lies about the incident in the official record; other abuses of power over inmates at another facility; and the dishonest behavior of clocking in at two jobs at the same time. At the first sentencing, the court acknowledged that these prior incidents brought to light by the government came in “uncontroverted.” Smith has not challenged the government’s description of his history of violence and dishonesty. If there is a rationale to support a sentence that is less than half the low end of the guidelines, it is not apparent in the record here.

animalfarm170623The panel ended the decision with a cryptic note that “Circuit Rule 36 shall apply on remand. “ Seventh Circuit Rule 36 requires assignment to a different judge if a case is remanded for a new trial, but does not normally apply where the remand is for resentencing. That the Circuit ordered reassignment to another judge suggests the extent to which the appellate court believed that this judge was so predisposed to be lenient because the defendant had been a cop that he could not be trusted to follow the appellate court’s instructions.

All defendants are equal, but some defendants – like cops – are more equal than others.

United States v. Smith, Case No. 16-2035 (7th Cir., June 19, 2017)

– Thomas L. Root


Lies, Damn Lies & Statistics: the AG Speaks – Update for June 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.

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

A little more than a week ago, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post to defend his May 10th tough-on-crime memorandum.  The reviews are in, and they are not pretty.

In 2013, former Attorney General Eric Holder ordered federal prosecutors to decline to pursue mandatory minimum sentences for drug offenders who didn’t use violence, were not leaders or organizers of the drug operation of which they were a part, had no ties to large-scale drug operations or gangs, and had no significant criminal history. If the drug defendant rang all of those bells, Holder directed that “prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence.”

As for sentencing, Mr. Holder directed that prosecutors be “candid with the court, probation, and the public as to the full extent of the defendant’s culpability, including the quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity. Prosecutors also should continue to accurately calculate the sentencing range under the United States Sentencing Guidelines. In cases where the properly calculated guideline range meets or exceeds the mandatory minimum, prosecutors should consider whether a below-guidelines sentence is sufficient to satisfy the purposes of sentencing as set forth in 18 U.S.C. § 3553(a).”

Now look at how Mr. Sessions interprets those passages:

“In 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.”

Ah, where to start?

violence160110How about with Mr. Session’s implication that the 2013 Holder memorandum led to an increase in violent crime? Is that so? Well, just as Bill Clinton famously said that it depends of what the meaning of ‘is’ is,” the first question has to be that it depends on the meaning of “violent crime.”

Mr. Sessions says that drug trafficking is “violent crime.” But the FBI does not. The G-men (and -women) issued the violent crime statistics that Mr. Sessions says show an uptick in violent crime in 2015 (back to 2012 levels) The AG’s right about that much, but among the mayhem included in the FBI’s definition of “violent crime” – murder, rape, robbery and aggravated assault – you won’t find drug trafficking. So the Holder memorandum – which primarily addressed drug trafficking – did not lighten up on the kind of “violent crime” that Mr. Sessions cited in the statistic.

Sure, you say, but did not he argue that drug trafficking led to such violent crime, citing the need to use a gun to collect drug debts because the courts were closed to people trading in illegal commodities? He did do so, but if you want to be completely fair, possession of a gun is just as important to a gang shootout over drug debts as is the debt itself. So consider this:

  • In 2014, the first full year the Holder memorandum was in effect, the average drug sentence was 57 months. This means that someone beginning that average sentence on January 1 would not be released until about January 1, 2018. In other words, shorter sentences beginning in 2014 could not account for an increase of violent crime in 2015.
  • While we’re at it, note that Mr. Sessions blames the 2013 Holder memorandum for the fact “that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent. Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009to 2016.”
§ 924 tacks a few years onto a sentence for carrying a gun during a violent or drug crime.
The statistics say the Feds are already doing more to get guns off the streets.

It’s pretty basic science to observe that when you’re measuring the effect of a certain event, you measure the change that occurred after the event, not the change that occurred before and after the event.

Several commentators have pointed to other logical legerdemain Mr. Sessions employed in his screed. Jacob Sullum at noted that

The violence associated with the distribution of currently banned drugs does not demonstrate that the business is inherently violent, any more than the violence associated with liquor distribution during alcohol prohibition showed that selling whiskey is inherently violent. The violence is a product of the prohibition policy that Sessions avidly supports, as he himself implicitly concedes in the next two sentences.

“If you want to collect a drug debt,” Sessions writes, “you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.” And why is it, exactly, that drug dealers cannot avail themselves of the same legal, peaceful methods of dispute resolution that today’s alcohol merchants routinely use? Only because their business remains illegal, malum prohibitum, just as the booze business was from 1920 to 1933.

Radley Balko at the Washington Post notes that “if pot retailers in Colorado, Washington and the other legalization states need to collect on a debt today, they do what any other retailer does. They use the legal system. If Sessions had his way, pot dealers in these states would to back to collecting debts ‘by the barrel of a gun’.” So the answer to this lessening of violence is to shut down legal marijuana sales, firing up the black market once again?

drugdealer160922Mr. Sessions’ answer to that is that even legal, the sales of marijuana is a “deadly business” because of the “approximately 52,000 Americans who died of a drug overdose in 2015.” But as Mr. Balko points out, “about 18,000 of those deaths  involved prescription opioids, which are legally available. About 8,000 involved benzodiazepines, which are also available legally. Both of those types of drugs are made by pharmaceutical companies, prescribed by doctors and sold by pharmacies. Does Sessions believe those are all inherently violent industries? The Journal of the American Medical Association estimates that 88,000 people die each year from alcohol-related deaths. Does Sessions believe that Anheuser-Busch, Diageo and E & J Gallo run “deadly businesses”? What about the 480,000 people who die each year from smoking? Is tobacco a “deadly business”?”

About 125 years ago, Benjamin Disraeli is said to have observed that “there are three kinds of lies: lies, damned lies, and statistics.” Mr. Sessions’ Washington Post defense of his get-tough-on-crime memo scores a hat trick.

Washington Post, Here are all the ways Jeff Sessions is wrong about drug sentencing (June 20, 2017), Read Jeff Sessions’ Utterly Illogical Defense of Tough Drug Sentences (June 20, 2017) 

Human Rights Watch, Q & A: US Attorney General Jeff Sessions’ Policy Change on Sentencing (June 20, 2017)

– Thomas L. Root


Supreme Court Strikes Down Internet Restrictions for Sex Offenders as Too Broad – Update for June 20, 2017

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


There may be nothing easier for a legislator than to enact laws that punish and restrict people convicted of sex offenses. Who’s going to complain? The sex offenders? Well, sure, but who cares what they think?

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.
Some types of offenses are just too offensive. Today, it’s kiddie porn… tomorrow, it may be jaywalking. That’s why we have laws, to save us from the Flavor of the Day.

It turns out that the Supreme Court cares. North Carolina wanted to be sure sex offenders lacked access to “vulnerable victims,” that is, kids. So far, so good. States may “enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime,” as the Court put it yesterday. But North Carolina – as legislatures are wont to do – went too far.

The Tarheel State passed a law that prevented anyone on the sex offender registry from using any Internet site that permitted minors to have accounts. Offenders like Lester Packingham, who at age 21 had sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he beat a traffic ticket, and took to Facebook to thank God for his triumph. A police officer saw his post, and saw to it that Lester was convicted of a felony for using Facebook.

files170620We confess that we can think of any number of people who should be convicted of felonies for what they post on Facebook, but the North Carolina statute seemed to be killing flies with a sledgehammer. Lester did, too, and took his lament to the Supreme Court. Yesterday, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

Justice Kennedy, in his usual sweeping style, wrote for a unanimous court that the North Carolina statute went too far, , because it stifles “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he argued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Justice Kennedy wrote,

Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers ‘relatively unlimited, low-cost capacity for communication of all kinds,’ to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet’s forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

The Justice took a direct swipe at legislators who think that no restriction is too harsh where sex offenders are concerned: “Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims. However, the assertion of a valid governmental interest cannot, in every context, be insulated from all constitutional protections.”

facebook170620Justice Samuel Alito, in a concurring opinion that was joined by Chief Justice John Roberts and Justice Clarence Thomas, agreed with Kennedy – to a point. Justice Alito acknowledged that states have an interest in protecting children from abuse, writing that  “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But, he noted, the North Carolina law under which Packingham was convicted must ultimately be deemed unconstitutional because it also bars sex offenders from gaining access to “a large number of websites” – including, but not limited to, Amazon, The Washington Post, and WebMD – “that are most unlikely to facilitate the commission of a sex crime against a child.”

felonies170620Having said that, however, Alito disputed any suggestion that cyberspace is “the 21st century equivalent of public streets and parks” over which states had “little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Arguing that “there are important differences between cyberspace and the physical world,” Alito disapproved of what he described as Kennedy’s “loose rhetoric” and “undisciplined dicta” in the majority opinion.

The opinion will provide considerable support to federal prisoners whose terms of supervised release contain sweeping limitations on Internet access.

The Supreme Court has 12 cases yet to decide before the end of next week, including

Sessions v. Dimaya (formerly Lynch v. Dimaya) (does Johnson apply to 18 USC 16(b)?)

Lee v. United States (ineffective assistance of counsel);

Turner v. United States (Brady evidence case);

Weaver v. Massachusetts (ineffective assistance of counsel);

Maslenjak v. US (loss of citizenship over immaterial false statement); and

Davila v. Davis (does ineffective assistance of habeas counsel overcome defaulted ineffective assistance of appellate counsel claims?)

The Supreme Court will issue more opinions on Thursday, June 22, 2017

Packingham v. North Carolina, Case No. 15-1194, reversed 8-0, 3 concurrences

– Thomas L. Root


Monday Morning Cleanup – Update for June 19, 2017

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


badpr170619If you’re handling public relations for the BOP, last week would have been a good time to be out of the office. First, the media reported on a newly-filed class action suit in the Middle District of Pennsylvania alleging that mental health services at USP Lewisburg are so meager that 5-minute therapy sessions take place in the shower and suicidal inmates are treated by being given crossword puzzles.

The suit focuses on the Lewisburg Special Management Unit, where most inmates are locked down in solitary, and often are doubled up in the cells, which psychologists allege is even more harmful than single-celled solitary confinement. Inmates who refuse “double-celling” have been put into metal restraints until they complied.

Lewisburg has an assault rate six times higher than the BOP average.

The inmate class in the suit is represented by the Pennsylvania Institutional Law Project, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and multinational law firm Latham & Watkins.

If that were not enough, a Huffington Post writer blasted the BOP’s Communications Management Units in an article published last Tuesday, highlighting a case still pending in the District of Columbia District Court.

GAG170619The author, who did a 25-year bit for drug trafficking and was sent to the CMU at one point, alleges the BOP uses CMUs – intended to provide an environment that enables staff to more effectively monitor communication between inmates in CMUs and persons in the community – are being used in violation of the 1st Amendment to stifle inmate criticism of the BOP. He says the “Little Gitmos” ― a term the press coined for CMUs ― were opened in 2006, drawing a torrent of criticism. Called the “black ops unit” or “where they keep the terrorists” by prisoners, the BOP’s program statement says the purpose of the CMUs is “to ensure safety and to protect the public.”

The 2014 lawsuit argues that prisoners don’t know why they’re transferred to these units or how they can get transferred back out. With no access to records on who’s housed in them or the reasoning behind these detainments, an inmate confined in a CMU is at the BOP’s mercy. Restricted to one six-page letter per week, three 15-minute phone calls and four 1-hour visits a month, CMU residents have little or no contact from the outside world.

“They’re really there as a punishment to keep them quiet and that’s extremely concerning,” said Amy Fettig, deputy director of the ACLU’s National Prison Project. The purpose of the CMUs, she says, have been twisted to censor anyone who disagrees with prison authorities.

The lawsuit was thrown out by the district court on summary judgment, but reinstated by the D.C. Circuit in 2016. Cross motions for summary judgment are currently pending in D.C. District Court.

The Marshall Project, Where Crossword Puzzles Count as Counseling (June 12, 2017)

Huffington Post, How The BOP Uses CMUs To Silence Prison Writers (June 13, 2017)

Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016).



We reported a month ago that a bipartisan sentencing bill, the Justice Safety Valve Act, was introduced in the Senate (S. 1127) and the House of Representatives (H.R. 2435). The Senate bill was sent to the Senate Judiciary Committee the same day it was filed, where it languishes. Last week, the House measure was passed by the House Judiciary Committee to a subcommittee, where the real work on the bill will be done.

Sentencing reform supporters were encouraged last March when Jared Kushner, President Trump’s son-in-law and close advisor, met to talk reform with Senators Grassley (R-Iowa), Durbin (D-Illinois), and Lee (R-Utah). Observers predicted Kushner was sympathetic to reform because his dad did a stint in federal prison, but Senate aides say Kushner’s visit was more a listening session than an offer of support. Still, Sen. Grassley enthusiastically said he would know the administration’s position on reform legislation “in three weeks.”

Over two months later, no one has yet heard from the White House, and Kushner has a pretty full plate (such as peace in the Middle East and a subject of the Russia-Trump investigation). An Atlantic magazine report last week said of Kushner that “it seems unlikely he’ll have much bandwidth in the coming months to weigh in on Congress’s mundane domestic squabbles. Which is why advocates of criminal-justice reform might want to take a moment to wave adios to any prospect of action in the foreseeable future…”

Attorney General Jefferson Beauregard Sessions III
Attorney General Jefferson Beauregard Sessions III

Meanwhile, Attorney General Jefferson Beauregard Sessions III took to the pages of the Washington Post last Saturday to defend his new “get-tough-on-crime” policies. He led with the claim that “drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun. For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.”

Sessions sees all federal drug defendants as kingpins. He wrote, “Federal drug offenders include major drug traffickers, gang members, importers, manufacturers and international drug cartel members… The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels. Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015.”

The Atlantic, Criminal-Justice Reformers Pin Their Hopes on Jared Kushner (June 11, 2017)

Washington Post, Jeff Sessions: Being soft on sentencing means more violent crime. It’s time to get tough again (June 17, 2017)

– Thomas L. Root


Once You Say It, You Own It – Update for June 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.


changeofplea170616Anyone spectator who has ever endured a change-of-plea hearing in Federal court has some sense of what the prophet Isaiah meant when he wrote of inhabiting eternity. The hearing drones on and on, with discussions about the defendant’s mental state, understanding of his or her rights, the nature of the rights being given up by the guilty plea, the elements of the charges, maximum and minimum sentences, fines and restitution, effect of the Guidelines, and on and on.

The whole back-and-forth between the defendant and the judge – known as the plea colloquy – is scripted by F.R.Crim.P. 11, which covers in detail what has to happen during the guilty plea. Such hearings go on over 70,000 times a year in federal court, and virtually every one of them is mind-numbing.

Before accepting a plea of guilty, the court must determine that the plea is voluntary and did not result from force, threats, or promises other than those in the plea agreement. One question that is almost always asked is whether the defendant is fully satisfied with his or her legal counsel, the representation, and advice received. Another is whether anyone had  threatened or attempted in any way to force the defendant to plead guilty.

ecoli170616At first blush, the questions seem silly. If the defendant is being forced to plead guilty, he or she is hardly going to screw the pooch by telling the judge that. Even worse is the question about satisfaction with counsel. The defendant has not even had his or her guilty plea accepted, let alone get sentenced. It’s as though Yelp required you to post your restaurant review before your appetizer arrives. Sure, the maître d’ was polite, and the tablecloths clean and starched. But you may well feel much different at 3 o’clock tomorrow morning, when you discover that e.coli. had been living in the house salad.

meanit170616As meaningless as the answers may be, they nevertheless because granite-hard truth if the defendant ever suffers buyer’s remorse. Consider Kevin Reed. Halfway through his federal fraud trial, he decided to plead guilty. During the plea colloquy, the district judge asked Kevin if he was “fully satisfied with the counsel, representation, and advice” he had been given. Kevin replied, “Yes.  He’s  excellent.”  He  also  confirmed  that  no  one  had  threatened him or attempted “in any way” to force him to plead, and that he was pleading guilty of his “own free will” because he was actually guilty.

A few months later, as sentencing loomed, Kevin hired a new set of lawyers. They moved to withdraw the plea, arguing that Kevin’s trial attorney’s ineffective representation at trial left Kevin with no choice but to bail out, and thus coerced him to plead guilty. The district court denied the motion.

Last Tuesday, the 7th Circuit upheld the district court. The Circuit acknowledged that a defendant could withdraw a guilty plea, but such a motion is “particularly unlikely to have merit if it seeks to dispute the defendant’s sworn assurances to the court.”

That was exactly what Kevin was trying to do. He argued that his trial attorney ignored tens of thousands of documents and didn’t interview dozens of potential witnesses, but he did not identify any of the witnesses or documents or show how they would have bolstered his case. More importantly, the appellate panel tartly noted, Kevin kind of forgot to mention any of this in his plea colloquy, or to complain that he was answering “yes” to the court only because his attorney told him to.

trifles170616At the plea colloquy, Kevin said his lawyer was excellent and that his plea was voluntary. “Those sworn statements were not ‘trifles’,” the 7th said, that Kevin could simply “elect to disregard.” To be sure, a plea entered because counsel is unprepared for trial would be an involuntary plea, but the district court found Kevin’s claim of lawyer ineffectiveness “vague,” and the appellate court agreed.

The problem is that at the change-of-plea colloquy, a defendant – especially one unfamiliar with the criminal process – has no way to know whether his lawyer has provided good representation or not. Nevertheless, a defendant will be held to the words he or she speaks. Whether the defendant knows the correct answer or not, that answer is going to bind him or her. Say it like you mean it, because once you give the answer, you own it.

United States v. Reed, Case No. 16-3428 (7th Cir., June 13, 2017)

– Thomas L. RootLISAStatHeader2small

The Fine 6th Amendment Line Between Arguing the Law and Arguing the Facts – Update for June 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.


Everyone who has ever watched a cop show knows that the Constitution guarantees an attorney to each accused. Actually, the 6th Amendment – from which the right is derived – guarantees a lot more than the presence of a mouthpiece.

The 6th Amendment guarantees the right to an attorney of the accused’s choice, the right to an attorney who is effective at what he’s or she’s doing, and – as we see today – the right to mount a defense.

sixth170614Dan Brown was a member of an online bulletin board known as Dark Moon, where members shared child porn. A jury convicted Dan of conspiracy to make, print, or publish “any notice or advertisement seeking or offering” child pornography in violation of 18 USC § 2251(d) and (e). Dan got 15 years.

Dan’s lawyer wanted to argue that because Dark Moon was a closed group which no one could access without a password, the postings were not the kinds of a “notice or advertisement” that the statute outlawed. He argued that the closed nature of the board was one factual consideration that the jury should be permitted to consider in determining “whether the government meets the proof beyond a reasonable doubt.”

The district court disagreed, concluding that the postings were advertisements, and told the jury as much in the instructions the judge read to the jury. The district court explained, “I just think clearly that when you have a site like the Dmoon bulletin board where you are making available, to anybody that wants to get into this particular bulletin board, the services that are being offered in that bulletin board in the manner as it has been demonstrated through the evidence in this case, that… to me… meets the definition of what would be ‘advertisement,’ ‘advertise,’ or ‘notice.’”

On Monday, the 9th Circuit reversed, and sent the case back for retrial. The appellate panel conceded that a district court may prevent a defendant from “arguing incorrect statements of law, something that is well within the court’s discretion.” But that’s not what happened here. Instead, “the district court effectively ruled that, as a matter of law, the closed nature of the Dark Moon bulletin board was irrelevant to the question of whether an ‘advertisement’ or a ‘notice’ had been shown, and thus could not properly be considered by the jury… Indeed, the trial judge’s remarks suggest that he foreclosed Brown’s argument in part because he concluded that the government had met its burden as to that element of the statute. Because that determination was the jury’s to make, we conclude that it was error for the district court to prevent Brown from arguing that the government failed to meet its burden.”

advocacy170614The 9th differentiated between sufficiency and what happened here.

The question… is not whether the evidence against Brown was sufficient to support a conviction. Were that the question before us, we would ask whether, ‘viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Instead, the question is whether the defense had a fair chance to argue the evidence in the first place. There is a wide gulf between saying that evidence is sufficient to convict, and saying that such evidence is always sufficient as a matter of law to convict.

The Court observed that if Dan’s lawyer had wanted to argue that Dan’s posts could not qualify as “advertisements” or “notice” because he had posted on a closed board, the argument would have been a misstatement of law, and the judge could have prevented it. But what Dan’s lawyer wanted to argue to the jury was that “in this particular case ‘the features of the board don’t meet the… common and contemporary definition of ‘notice’ and ‘advertisement’” because the board was closed, because it was password-protected, because the rules of the forum required that files be encrypted, and because it had relatively few participants. Arguing to the jury that the facts did not bring Dan’s conduct within the limits of the statute is, after all, what lawyers are supposed to do.

pound170614The Circuit concluded that “no matter how strong the case for the prosecution may appear to the presiding judge, Brown had the right to present a defense that was not precluded as a matter of law… By refusing to allow Brown to present his defense in closing argument based on the closed nature of the Dark Moon bulletin board, the district court violated Brown’s fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt.”

United States v. Brown, Case No. 15-30148 (9th Cir., June 12, 2017)

– Thomas L. Root


Sunday Morning Comin’ Down – Update for June 13, 2017

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


A long time ago in an office far away, Sunday Williams, a Nigerian citizen by birth, tried to get a passport. His intent was praiseworthy but his technique was not. Dismissing legalities as too time consuming, Sunday submitted a false application claiming that he was an American citizen. After all, there are over 300 million of them. Who could possibly find out he wasn’t on the list?

sundaycash170613The Feds, that’s who. Sunday was charged with making passport fraud in violation of 18 USC § 1542. The case suffered from a venue problem: he was charged in New Hampshire but the fraud was committed in New York. His lawyer could see the handwriting on the wall – the government would dismiss in New Hampshire and bring the case in the Eastern District of New York – so he worked out a deal where Sunday pled guilty to making a false statement to the government in violation of 18 USC § 1001. Sunday could plead to that in New Hampshire. He did, and got probation.

sundayspanky170613Now, a decade after his probation ended, Sunday will never be the same. He feels remorse eight days a week, because his conviction is keeping him from becoming a citizen for real. This is what’s known as a “collateral consequence” of the conviction. The number of such collateral consequences to a felony conviction – which are effects flowing from a felony conviction that last long after the sentence has been served – is large.

Sunday believed that his lawyer misled him about the immigration consequences of pleading guilty to the § 1001 charge, as well as foolishly let him admit that the false statement was in connection to a passport application. He wanted to withdraw his guilty plea due to his lawyer’s alleged mistakes.

sundayholliday170613Ah, gloomy Sunday. To file a post-conviction habeas corpus motion, he had to be “in custody,” that is, serving his probation. What he needed was a way to raise his objections to the conviction years after the fact. To do that requires an old common law device known as a writ of error coram nobis – a remedy of last resort for the correction of fundamental errors of fact or law – to enable him to revise the factual basis of his § 1001 conviction.

The term “coram nobis” is Latin for “before us” and the meaning of its full name, quae coram nobis resident, is “which [things] remain in our presence” Such a writ obviously cannot remedy the direct consequences of the conviction, the sentence, because he had already served that. Sunday hoped, however it could remedy the collateral consequences he still was suffering. Because the underlying facts of his guilty plea involved a false claim of United States citizenship, Sunday was ineligible to receive a visa or to be admitted to the United States under 8 USC § 1182(a)(6)(C)(ii). No waiver or exception is available. 

Sunday’s argument is not important, being as it is kind of plain vanilla attorney ineffectiveness. Rather, what is interesting is the use of the writ of error coram nobis. In its modern form, the writ is ordinarily available only to a criminal defendant who is no longer in custody. The movant must explain his failure to seek relief earlier through other means, must show that he continues to suffer a significant collateral consequence from the judgment being challenged, and must demonstrate that issuance of the writ will eliminate this consequence. After the movant has done all of that, then he must show that the judgment resulted from a fundamental error.

Even after the movant has jumped through all of those hoops, a court retains discretion to grant or deny the writ. As the 1st Circuit put it in the decision handed down last week, “the Supreme Court has always envisioned coram nobis as strong medicine, not profligately to be dispensed, so we must issue this writ under circumstances compelling such action to achieve justice.”

lazy170613Here, the Court concluded that Sunday had proven collateral consequences still dogged him, and it assumed without reaching the question that lazy Sunday could show why he had not sought relief before (such as in a 28 USC 2255 motion while he was on probation). The problem, the Court said, was that he could not show that his lawyer’s decisions were wrong, let alone ineffective. Clearly, the Court said, the government intended to re-indict Sunday if a deal solving the venue problem was not struck. Making a plea deal to a § 1001 violation that avoided prison was not a bad deal at all. And as for the admission that the false statement was on a passport application, that was the factual basis for the § 1001 conviction, so Sunday could hardly avoid copping to it. Not only was counsel not ineffective, but – even if he had been – Sunday was not prejudiced.

hailmary170613A coram nobis has always been a long-shot pleading. The Circuit said, “A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent.”

So, what’s next, Sunday? Given the current Administration, probably deportation.

Williams v. United States, Case No. 16-2147 (1st Circuit, June 8, 2017)

– Thomas L. Root


Administration Sees Increase in Federal Inmate Numbers – Update for June 12, 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 BOP will “welcome” an additional 4,171 inmates next year, with federal prison population estimated to reach 191,493 as the Dept. of Justice steps up prosecutions of illegal immigrants and drug offenders. This reverses the trend toward fewer inmates started by Obama.

The 2% estimate for fiscal 2018 was noted in a corner of a DOJ budget proposal released two weeks ago.

prison160523The prison budget increase will probably go mostly to private prison companies, which are stepping up lobbying efforts to win contracts to house thousands of new inmates and immigrant detainees. About 19% of federal inmates are currently in private prisons or re-entry centers, a proportion analysts say will increase because private prisons have more beds available than federal facilities. The BOP is currently running 14% above official capacity.

Last week, the Sentencing Commission released current statistics on the BOP population. It reported that

•    46% of all drug trafficking offenders were convicted of a drug offense carrying a mandatory minimum penalty, but fewer than half got the mandatory minimum. About 10% help the government, 10% got the safety valve and 8.3% got both.

•      Only 6.5% of federal inmates have a pre-Booker mandatory guidelines sentence.

•    Half of all inmates in the federal prison population were sentenced to more than ten years in prison, 5% were sentenced to 30 years or longer, and 3% to life in prison.

•      About 11% of all federal inmates have already served more than 10 years.

•   About 56% of all federal inmates were convicted of an offense carrying a mandatory minimum penalty.

mandatory170612Speaking of mandatory minimums, last week Senators Mike Lee (R-Utah), Dick Durbin (D-Illinois), Cory Booker (D-New Jersey), and Rand Paul (R-Kentucky) sent a letter to Attorney General Jefferson Beauregard Sessions III, seeking some answers about the analysis and thought that may have gone into the contents of the DOJ’s May 10, 2017 memorandum, which rescinded Eric Holder’s charging policies and directed federal prosecutors to pursue the most serious offense possible when prosecuting defendants. 

The letter observed that “in many cases, current law requires nonviolent first-time offenders to receive longer sentences than violent criminals. Sentences of this kind not only ‘undermine respect for our legal system,’ but ruin families and have a corrosive effect on communities.”

The letter, seeking a response within 30 days, asks detailed questions about the study done by DOJ leading to adoption of the new policy. Additionally, it asks whether “any federal criminal offenses carrying mandatory minimum sentences that you believe are unfair?” and whether “all applications of 18 U.S.C. § 924(c) result in fair sentences?”

Press Release, Sens. Send Bipartisan Letter Questioning DOJ Sentencing Policy (June 7, 2017)

Wall Street Journal, Federal Prison Population Expected to Grow Under Trump (June 8, 2017)

U.S. Sentencing Commission, Quick Facts: Federal Offenders in Prison – February 2017 (released June 7, 2017)

 – Thomas L. Root


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