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Shut My Mouth! – Update for November 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.


A federal prison in Texas, like a lot of joints around the country, suffers from frequent power outages. Derrick Brunson (who has since been released) filed an administrative remedy request with prison administrators, expressing his concern over security due to the lights going out all the time and asking that something be done about.

work171121Derrick’s counselor quickly responded to his filing. She complained that he was “just putting more work on her desk.” In response to Derrick’s filing, she wrote him up for threatening her, filing a disciplinary report  known in federal prison parlance as a “shot.”  Derrick was promptly thrown into the SHU – the “Special Housing Unit” – for three weeks while awaiting a hearing in front of a Disciplinary Hearing Officer.

In due course, he was found guilty of the “shot” and was given 7 days in disciplinary segregation and a loss of some good time credits he had previously earned.

shutmouth171121After his 28 days in the SHU, Derrick appealed the finding of guilt, and his appeal fell on the desk of cooler heads. The DHO’s finding was reversed, and the “shot” was expunged. After that, Derrick – who justifiably felt that he had been punished for exercising his 1st Amendment rights in a completely reasonable way – brought a Bivens action against prison staff for a retaliation conspiracy against him for speaking out.

The district court dismissed Derrick’s complaint, holding that his conspiracy claim was “conclusory” and his seven days in seg was too insignificant an injury, “de minimis” as the courts like to say.

shu171121Last week, the 5th Circuit reversed.  The appellate court held the district judge should not have ignored the 21 days Derrick spent in the hole waiting for a hearing. “Taking the 21 days in the SHU and the seven days of disciplinary segregation together,” the Court said, “the alleged retaliatory act lasted at least 28 days, which is certainly… not de minimis.

The 5th found it significant that the shot was later expunged, because that suggested the counselor “lacked any basis for initiating the charge.”  And Derrick’s conspiracy claim was not “conclusory,” the Court said. He alleged that while he was in the SHU, the Captain told him, “You didn’t think I know the lights are an issue? You are not going to make threats.”  A lieutenant then said, “Thanks for telling us how to do our jobs, you want to tell us how to do our jobs things go downhill for you.” 

tapemouth161230When Derrick pointed out that the incident report did not state a violation, the Captain responded, “Well, when I talk to the DHO we’ll see if he can articulate” one. The DHO subsequently changed the charged offense from “threatening” to “refusal to obey an order.” 

The Circuit held that “these facts suffice to state “an agreement to commit an illegal act which resulted in the plaintiff’s injury.”

Brunson v. Nichols, Case No. 14-31350 (5th Cir. Nov. 15, 2017)

– Thomas L. Root


Reeling in Some ‘Desperate Targets’ – Update for November 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.




You know the story by now. After prison, Tracy Conley was getting his life together. He had a job, a car, and a girlfriend. He was regaining his footing one step at a time.

stash171120At least he was, until a series of unfortunate events. Tracy got to work one day to find the machine he operated was down. His employer sent him home. He started to drive back to his girlfriend’s house, but in a second stroke of bad luck, was running out of gas. He stopped at a gas station, and saw two friends, from whom he tried to borrow a few bucks for some fuel.

The friends convinced him to come to a meeting instead, where a guy named Myreon pitched them all on robbing a drug stash house stuffed with cocaine. Of course, there was no stash house and no 50 kilos of powder. Instead, the whole scheme was orchestrated by the ATF.

Tracy and the others were thus ensnared in what the 7th Circuit called “a now familiar government set up in which a government actor, pretending to be a criminal, presents the defendant with an opportunity to be part of a robbery of an illegal drug stash house. The stash house is fictional, of course, and so the government decides which and what quantity of drugs it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers to the crime will be (in this case it was allegedly protected only by two armed and one unarmed guards). Tracy took the bait and ended up with a sentence of 180 months’ imprisonment on drug distribution and weapons charges.”

The Circuit upheld Tracy’s conviction and sentence (which was way below his Guidelines range), but had to pinch its collective nose shut to do so. Reviewing the district court’s unhappiness with the case and widespread judicial criticism of stash house “stings,” the 7th said:

The district court’s discomfort with this case echoes a substantial body of criticism of similar stash house cases both from this circuit and others. Beginning many years ago, we criticized these cases as “tawdry,” noting in particular how these operations are “directed at unsophisticated, and perhaps desperate defendants” like Tracy who easily take the all-too-tempting bait put out for them by the government.

stash171031In this case, Tracy may have been starting down a straighter path, after a life filled with many poor choices. He was gainfully employed, had obtained his GED, enrolled in some college courses, and had skills in electronics and marketing. But he was also an ‘unsophisticated and desperate’ target, so down on his luck that he did not have even enough money to get home from work on the day he was approached by his co-conspirators… Like the district court, we ‘question the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution’. But the resources have been expended and the district court conducted an exceptionally thorough post-trial review and ‘after much consideration, time, reflection and review of the parties’ arguments and the trial record’ properly denied the motion for acquittal or new trial on all charges.

United States v. Conley, Case No.15-3442 (7th Cir. 2017)

– Thomas L. Root


Dog Bites Man – Federal Sentencing Said to Be Racially Tinged – Update for November 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.


blackprisoner171116While this hardly comes as much of a comfort to you if you’re already serving one, a United States Sentencing Commission report issued last week found that, statistically speaking, your sentence is longer if you’re black than if you’re white, or if you’re a male instead of a female.

The report compares sentences handed down to similarly situated people between October 2011 and September 2016. Its key findings are

• black males continue to catch sentences that are 19% longer than those imposed on white males. The average black male sentence of about 92 months in 2007 has fallen to about 75 months, mostly because of changes in crack cocaine sentencing ranges, while white male sentences have risen slightly from 58 to 64 months. But when the data are adjusted for the effect of the Fair Sentencing Act, the gap between black and white sentences is unchanged since 2007.

• sentence departures and variances given for reasons other than assistance to the government are the principal culprits. During the period, black males were 21% less likely than whites to get a downward departure or variance, and when they did get one, their sentences were still 17% longer on the average. When the courts sentenced within the sentencing range, black male sentences were still 8% longer than those of whites.

• violence did account for any of the demographic differences in sentencing. Violent black male sentences were on average 20% longer than violent white male sentences.

• females received shorter sentences than males during the period, unchanged from every year since 2003. White and Hispanic women received 26% shorter sentences than males, and black women got 21% shorter sentences. These rates suggest while there is a racial sentencing disparity for women, its smaller than for men.

• non-citizens got longer sentences than similarly situated citizens, but education didn’t make a difference.

guy171116The 2003 PROTECT Act (which defendants generally disliked) drove the racial disparity down to 6%, but after United States v. Booker – which made the Guidelines advisory – the difference between black and white male sentences increased by 10%. The pronounced disparity between white and non-white offenders may be partially attributable to the lack of a strict, rational sentencing scheme. When judges use their discretion, implicit racial and gender biases may show.

US Sentencing Commission, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (Nov. 13, 2017)

– Thomas L. Root


Yeah, It’s That Bad – Update for November 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.

Not the kind of "halfway house" we're talking about.
Not the kind of “halfway house” we’re talking about.

Federal law requires that the Bureau of Prisons provide each inmate with re-entry services – a transition from prison to freedom – during that last portion of their sentences. That includes placement in a halfway house or on home confinement. It used to be that BOP capped halfway house at six months. Then Congress passed the Second Chance Act, which authorized up to double that.

With its new authority, the BOP promptly began giving inmates up to six months in halfway house. Not a jot more. And although there Second Chance Act is almost a decade old, the BOP still persists in giving an inmate not more than 10% of his or her sentence in a halfway house, up to six months. Do three years? You get 3.6 months in a halfway house. Do 60 months? You get six months? Do 30 years? You get six months.

Well, that was then and this is now. A lot of inmates have been emailing us for the last two months, reporting that the BOP is seriously cutting halfway house time, ironically just as Congress is seriously debating the need for more programs to combat recidivism among federal inmates.

then171110Well, it’s all true. The Trump Administration has been quietly cutting support for halfway houses in recent months, eliminating programs and severing contracts with as many as 16 facilities. Reuters reports that a BOP spokesman confirmed the cuts in response to an email inquiry from Reuters, but maintained they only affect areas with small populations or underutilized centers. “The Bureau remains firmly committed to these practices, but has had to make some modifications to our programs due to our fiscal environment,” Reuters quotes the spokesman as saying.

U.S. District Judge Edmund Sargus, who sits in the Southern District of Ohio, confirmed one contract cut was with Alvis in Dayton, a decision he called “a real stumper.” If Dayton, with a metro population of a half million people, is one of the “small population” areas BOP is talking about, then perhaps the BOP’s statement is, um, questionable.

The BOP spokesman said that the cuts have not reduced referral rates or placements, and only impact “about 1% of the total number of beds under contract.”  That estimate might be equally suspect, if the widespread inmate complaints are any indication.

A small liberal website, Splinter, reported last week it alone had gotten 40 emails from federal prisoners whose halfway house had been cut. Some had their halfway house time cut completely. Others reported reductions in the time they’d already been granted.

Eight senators ­– four Republicans and four Democrats – wrote to BOP Director Mark Inch two weeks ago, expressing concern “that the BOP is reducing its use of Residential Reentry Centers without explanation or advance notice to those most affected. As a consequence, inmates are spending more time in prison, being released directly from prison into the community without the necessary supervision, or spending insufficient time in transitional facilities. These changes, particularly in the absence of a justification, threaten to make our communities less safe while increasing BOP operating costs over time.”

Reuters, Trump administration reduces support for prisoner halfway houses (Oct. 13, 2017)

Letter to Mark Inch from Sen. Charles Grassley and others (Oct. 26, 2017)

– Thomas L. Root


Pay No Attention to the Witness’s Lie – Update for November 6, 2017

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


corso170112You’d think that when a key prosecution witness lies on the stand during a murder trial, and the prosecutor knows it and the judge knows it and everyone except the jury knows it, the judge or the prosecutor would jump up and say, “Not so fast!”

After all, the obligation of someone – and that someone is supposed to be the prosecutor – to tell the jury the witness is lying is pretty well established after Napue v. Illinois and Giglio v. United States.

lies171106It’s pretty important that the prosecutor tell the jury his or her witness is lying. The defense attorney can do that, and often does, but somehow the punch of branding the other side’s witness a liar is not quite as effective as telling the jury your own witness is a liar. And even if the lie is about something tangential to the meat of the testimony, it’s important that the jury know about it. You lie about a little thing, you may lie about big things, too.

Consider the fate of poor Lariec Sherman, shot to death 18 years ago in a Peoria, Illinois, housing project. Although there was no physical evidence, the State of Illinois quickly rustled up four people who said Paysun Long was the shooter.

At Paysun’s first trial, two witnesses changed their stories, but the prosecutors playing the recordings of their statements made before they had recanted. One of the remaining two witnesses, Brooklyn Irby, first fingered Paysun but then then changed her story. She ultimately testified that before the trial, she told prosecutors her story about Paysun being the shooter was a lie.

Paysun was convicted, but it was overturned on appeal.

When Paysun was retried, prosecutors used the recorded testimony of two witnesses and live testimony from the other two. The defense again told jurors about how two witnesses had recanted. When Irby testified, she told the jury that Paysun was the shooter, but her account of the crime differed from what the other eyewitness said. The most damaging witness said Paysun shot the victim from behind.

pantsonfire160805It was Irby’s cross-examination that was interesting. She denied she had ever told the police and prosecutors that her initial identification was a lie. Although the prosecutor did nothing to correct her testimony, Paysun’s attorney didn’t sit on his hands. He called the prosecution’s own investigator as a witness, who admitted to jurors that Irby had indeed recanted her incriminating testimony during the first trial.

Even during closing arguments, the prosecutor never acknowledged that Irby had lied. Instead, he told the jury about a letter Irby had written that was even not in evidence. The judge interrupted, telling the jury to disregard the State’s attempt to put unadmitted hearsay in front of the jury, but all the instruction did was to get the jury’s attention. So much so, in fact, that during deliberations, the jury  asked to see the letter that was not part of the record.

Unsurprisingly, Paysun lost the second trial, too.

Paysun filed a post-conviction motion in state court, arguing the prosecutor violated Napue v. Illinois, which holds that the a prosecutor’s failure to correct a government witness’s false testimony is a due process violation. For good measure, Paysun complained that the State violated Giglio v. United States as well, which held that prosecutors have a duty to disclose to deals they make to get witnesses to testify.

Illinois courts ruled Paysun’s prosecutor had violated Napue and Giglio, but that it was “harmless error” because of other evidence in the case (that being the shaky testimony of the only eyewitness who had not recanted) that proved Paysun’s guilt. After appeal failed, Paysun filed a 28 USC 2254 motion in federal court, seeking review of the Illinois courts’ denial of habeas.

The district court agreed that the Napue and Giglio violations were presumed to prejudice Paysun, without any harmless error analysis allowed. Last year, the 7th Circuit agreed, but then the State won the right to an en banc rehearing.

Late last month, an en banc panel of the Circuit decided 5-3 that Napue and Giglio did not necessarily mean a defendant had a due process claim if the false testimony wasn’t elicited by prosecutors, if the truth was already known to the defense during trial, if the prosecutor did not ask jurors to rely on the false testimony, or if the jury learned the truth anyway.

cmon161027Here, the panel said, although the prosecutor remained silent about Irby’s perjury, Paysun’s lawyers exposed it. Plus, the prosecutor didn’t specifically rely on Irby’s false testimony, but instead just talked around it, arguing that her identification of Paysun as the gunman was true regardless of whatever the jury might think about the rest of what she said. In fact, the majority hypothesized, maybe the prosecutor’s refusal to correct Irby’s testimony actually helped Paysun because it allowed his attorneys to be the ones to portray Irby as a perjurer.

“C’mon, man,” the three dissenting judges seemed to say. The dissent was puzzled, dismayed maybe, that the majority would let a prosecutor get away with a lie. They said, “the majority’s suggestions that Napue leaves the state courts room to avoid following it on the facts of this case are without support. Napue expressly rejected several of the suggestions, and its logic clearly rejects the last.”

Paysun’s attorneys have not revealed whether they plan to seek Supreme Court review. However, one commentator said, “it seems an obvious avenue of appeal, giving the justices an opportunity to reaffirm the principle they announced in 1959 and in 1972, that the government has a constitutional and ethical obligation to ensure that it speaks out against perjury when it unfolds in the middle of a trial in front of the jury.”

Long v. Pfister, Case No. 13-3327 (7th Cir., Oct. 20, 2017) (en banc)

The Marshall Project, Getting Away with Perjury (Oct. 30, 2017)

– Thomas L. Root


Newspeak Redux: Another Violent Crime is not a Crime of Violence – Update for November 2, 2017

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


angels170726The debate over whether criminal offenses that any viewer of Law and Order would have no problem labeling as violent are in fact “crimes of violence” continues to rage. In the Newspeakean world that remains after United States v. Curtis Johnson and United States v. Mathis, determining whether a violent crime is a “crime of violence” has come to occupy the same station as counting the number of angels on the head of a pin.

Whether a crime is a “crime of violence” has great relevance, because it can qualify the unlucky defendant for a 15-year mandatory minimum sentence (Armed Career Criminal Act), a mandatory consecutive sentence of at least five years (use of a firearm during crime of violence under 18 USC 924(c)), a much higher Guidelines sentencing range as a “career offender,” and a host of other statutory and Guidelines burdens. That’s not to mention the impact on legal residents subject to deportation for crimes of violence, an issue that is part of the Sessions and Dimaya case awaiting decision in the Supreme Court.

The latest entrant into the debate comes from the 10th Circuit, where Darnell O’Connor faced a Guidelines enhancement under USSG 2K2.1(a)(4)(A) because he had a prior conviction for a Hobbs Act robbery. Darnell’s advisory sentencing range for his felon-in-possession-of-a-gun conviction (18 USC 922(g)(11)) was increased by about six months because of the prior.

There are three ways a prior offense may be a crime of violence under the Guidelines. It may be either (1) an enumerated offense listed in the Guidelines (burglary, arson, extortion or use of explosive”); (2) an offense that has as an element the threatened use or actual use of physical force against a person; or (3) an offense that presents a significant risk of physical harm to others.

Robber160229The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left. The “residual clause” was declared unconstitutionally vague two years ago in United States v. Johnson, at least as it applies to the ACCA, but the Supreme Court subsequently decided it could be applied in the Guidelines definition of “crime of violence.”

The definition of a “crime of violence” is the same whether its figuring out whether someone is an armed career offender under the ACCA or whether figuring out whether it’s a crime a violence under 18 USC 16(b), or whether figuring out whether the Guidelines make one a “career offender” under the Guidelines.

violence160110On appeal, Darnell argued that a Hobbs Act robbery was not a “crime of violence” under the Guidelines definition – which is fundamentally the same as the statutory definition – because it encompassed conduct that was broader than “robbery.” If some conduct that would be a crime under the statute would not be a “crime of violence” under the Guidelines, then any conviction under that statute will not qualify as a “crime of violence” for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to the prior conviction was in fact violent.

Under the force clause, the court looks at whether the statute underlying the prior conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” If the statute criminalizes only conduct that fits within the force clause, then a sentencing enhancement is valid. But if the Hobbs Act robbery statute covers conduct that falls outside the force clause—such as threatening property rather than “the person of another”—then Hobbs Act robbery would not categorically be a crime of violence under that clause.

The Hobbs Act defines robbery is the unlawful taking of someone’s personal property against his will by use or threat of force “to his person or property.” The Government argued that the Court had to focus on the “minimum conduct” criminalized by the underlying statute without applying “legal imagination” to consider hypothetical situations that technically violate the law but have no “realistic probability” of falling within its application. It argued it Darnell could point to no case where the government would prosecute” threats to property as a Hobbs Act robbery.

The Court held that was immaterial, because Darnell “does not have to make that showing.

Hobbs Act robbery reaches conduct directed at “property” because the statute specifically says so. We cannot ignore the statutory text and construct a narrower statute than the plain language supports.” Because Hobbs Act robbery can be committed against property, where generic robbery cannot, it is broader than enumerated robbery, and cannot qualify as violent crime under the “enumerated clause.”

Likewise, the enumerated offense of extortion cannot include the Hobbs Act within its sweep, because the Guidelines now define extortion as being focused only on physical injury to a person. Hobbs Act extortion includes threats to property, and thus is too broad under that term as well.

Finally, the Court said, Hobbs Act robbery cannot qualify as a crime of violence under the Guidelines “force clause,” because Hobbs Act robbery can include force against property, while the “force clause” requires physical force against a person.

Darnell’s two prior Hobbs Act convictions thus were not crimes of violence, despite the fact that they were undoubtedly violent crimes.

United States v. O’Connor, Case No. 16-3300 (10th Cir., Oct. 30, 2017)

– Thomas L. Root


Trick-or-Treat… It’s the ATF – Update for October 31, 2017

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


ATF-o-lantern171031Richard Zayas, ATF agent and professional “stash house sting” promoter (with more than 100 to his credit) took his show on the road to Cleveland, where he was again successful in finding young, poor black defendants to recruit into his fictitious robbery ring.

The “recruits,” including one poor kid with no prior criminal record, showed up at “work call,” guns in hand, ready to pull off the nonexistent job. The ATF cuffed them all and hauled them away. They were, of course, convicted in due course.

On appeal, the defendant argued that the indictment should have been dismissed based on outrageous government conduct. They argued that the Government’s conduct “created and encouraged the defendants’ commission of the offense by luring the impoverished… defendants with the promise of a large payoff, making repeated requests for meetings over a short period of time, making repeated demands for their commitment to the conspiracy, suggesting and enabling their possession of firearms, by providing transportation via the confidential informant to a pre-robbery meeting, and by providing them with a car to use for purposes of the robbery.”

stash171031Last week, the 6th Circuit upheld the convictions. The Court noted that while some circuits said that under the outrageous government conduct defense, government involvement in a crime may be “so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped,” the 6th Circuit had not previously held that the government could be so outrageous as to bar prosecution, and it was not going to do so here.

One of the defendants, who was recruited by an informant acting on Agent Zayas’ direction, claimed “indirect entrapment.” Entrapment is normally carried out by law enforcement; indirect entrapment occurs when “a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement.”

Maybe people are indirectly entrapped somewhere else, the 6th Circuit said, but it has “explicitly chosen not to adopt the doctrine of indirect entrapment.” The defendants were out of luck.

Like other “stash house stings” across the country, this opinion drew a sharp concurring opinion. While upholding the conviction, Judge Stranch complained that the stings preyed overwhelmingly on minorities in impoverished neighborhoods. She wrote,

it seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.

United States v. Flowers, Case No. 15-3988 (6th Cir., Oct. 24, 2017)

– Thomas L. Root


Sentence Reform – Wither Goest Thou? – Update for October 30, 2017

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


roadtrip171027We reported last Friday on our trip to Washington for the “Advancing Justice, An Agenda for Human Dignity & Public Safety,” a conference sponsored by the Charles Koch Institute.

Today’s installment is Part 2 of our coverage:


The Sentencing Reform and Corrections Act of 2017 (S.1917) is currently before a subcommittee of Senator Charles Grassley’s Judiciary Committee, but we’ve been there before. The 2015 version of the SRCA was approved by the Judiciary Committee, only to die on the Senate floor because leadership refused to bring it to a vote during a presidential election season.

Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.
Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.

What is lost in the story of the 2015-16 attempts to pass SRCA is that the bill that came out of the Committee was not the same bill that went in. Instead, a lot of the retroactivity written into the bill as drafted was taken out to please law-and-order conservatives like then-Sen. Jefferson Beauregard Sessions III (now Attorney General) and Sen. Tom Cotton (R-Arkansas).

Sen. Grassley, one of the SRCA sponsors, said at the Advancing Justice conference that the drafters of SRCA17 “kept the package balanced,” taking into account the views of the prior bill’s critics. He said that to those “wanting reasonable compromise, we will be willing partners.”

Sen. Grassley cited a number of pending criminal justice reform bills, including the Smarter Sentencing Act (S.1933), the Mens Rea Reform Act (S.1902) and the CORRECTIONS Act (S.1994), implying that one comprehensive piece of sentencing reform legislation may emerge from the Judiciary Committee that includes pieces of many or all of these bills.

Sen. Grassley’s favorable reference to the Smarter Sentencing Act is a lot different from what he thought two years ago, when he denounced “the arguments for the Smarter Sentencing Act [as] merely a weak attempt to defend the indefensible.” In fact, his complaint that mandatory minimum laws are “too severe” and give prosecutors too much discretion is a major change from 2015, when he complained in a Senate speech about the dangers of the “leniency industrial complex” and “a growing public misconception that mandatory sentences for drug offenders needed to be reduced.”

stars171030So are the stars aligned differently in this Congress? Marc Levin ot the Texas Public Policy Institute told a session on the future of sentencing reform that “part of the strategy is to have as comprehensive a [sentencing reform] package as possible, without making perfect the enemy of the good.” Both left- and right-wing politicians are working on sentencing reform, and Koch Industries general counsel Mark Holden thinks that Attorney General Sessions will not be an impediment to the bill’s passage, despite what Levin called Sessions’ “real difference of opinion” on sentencing reform.

One potential stumbling block may be the Mens Rea Reform Act (S.1902). That Act would add a default rule for juries, requiring them to find criminal intent for federal offenses that don’t explicitly have an intent standard. If enacted, the Act would specify a default state of mind of “willfully,” and would require that unless the statute specified otherwise, AUSAs would have to prove the state of mind for every element of the offense. For example, a felon-in-possession charge under 18 USC 922(g) (which does not specify a state of mind) would require proof that the defendant possessed a gun that had traveled in interstate commerce intending to break the law. Currently, the government only must show the defendant knew he or she possessed a gun, not that the gun had traveled interstate and not that he or she knew the law prohibited possession.

mensrea160124Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration. Some Senate Democrats, however, fear the measure is far too sweeping and could be a back-door attack on federal regulations that police corporate behavior.

Senator Sheldon Whitehouse (D – Rhode Island), a member of the Judiciary Committee, told the Atlantic magazine last week that he wouldn’t support a sentencing reform bill containing the change in mens rea proposed by the MRRA. “It would turn me into a warrior against it,” he said. Chuck Schumer (New York), the Democratic leader in the Senate, also was quoted as saying he would oppose such a bill.

Ohio State University law professor and sentencing expert Douglas Berman wrote pessimistically last Friday about the effect the MRRA could have on sentencing reform:

I have said before and will say again that this kind of opposition to a reform designed to safeguard a fundamental part of a fair and effective federal criminal justice system shows just how we got to a world with mass incarceration and mass supervision and mass collateral consequences.  Nobody seems willing or able to understand that making life easier for prosecutors anywhere serves to increase the size and reach and punitiveness of our criminal justice systems everywhere.  In turn, if you want a less extreme and severe criminal justice system anywhere, the best way to advance the cause is by seeking and advocating to limit government prosecutorial powers everywhere.

Sentencing Law & Policy, Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform? (Oct. 28, 2017)

The Atlantic, Could a Controversial Bill Sink Criminal-Justice Reform in Congress? (Oct. 26, 2017)

– Thomas L. Root


Talking Sentence Reform At “Advancing Justice” – Update for Friday, October 27, 2017

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


roadtrip171027We were in Washington, D.C., yesterday for the “Advancing Justice, An Agenda for Human Dignity & Public Safety,” a conference sponsored by the Charles Koch Institute.

“Advancing Justice” featured a thundering herd of prosecutors, public defenders, economists, doctors and law professors who focused on federal sentencing reform, over-criminalization, the opioid crisis, and effective rehabilitation.

Charles Koch, one of the often-denounced conservative Koch brothers (Koch Industries), is one of the staunchest sentencing reform supporters in the country. Through the Charles Koch Foundation, he has put his money where his mouth is, and bankrolled reforms that have or will have broad support from the right and the left.


The Sentence Reform and Corrections Act of 2107 would pass the Senate with 70 votes if it were voted on today, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Senator Mike Lee (R-Utah) told the Advancing Justice conference yesterday.

advj171027The SRCA introduced in 2015 passed Sen. Grassley’s committee 15-5, and both he and Sen. Lee said it would have overwhelmingly passed the Senate had it been brought to a vote. Sen. Grassley said “election year pressures” were responsible for the bill stalling. Mark Holden, Koch Industries general counsel – who spearheaded Koch pressure in favor of the 2015 version of SRCA – was blunter about it: “Presidential politics killed the last Sentence Reform and Corrections Act,” he told one of the sessions focusing on the future of federal sentence reform.

Holden and Sen. Grassley separately noted that there is support within the Trump Administration for a reform bill. Holden noted that while it was well known that White House advisor Jared Kushner – President Trump’s son-in-law – supported sentencing reform because his father had done time for a white-collar offense – others in the Administration support it as well. Energy Secretary Rick Perry, Housing Secretary Ben Carson are strong supporters of the measure. Paul Ryan (R-Wisconsin), the Speaker of the House, is “very passionate” about sentence reform, Holden said.

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

Most of the attention has been focused on Attorney General Jefferson Beauregard Sessions III, who reportedly opposes sentencing reform. Holden suggested Sessions “not a real negative.” Sessions’ job, as he acknowledged at his confirmation hearing, is to enforce the laws, not make them. “He has his opinion,” Holden said. Sen. Lee told the conference that Sessions, with whom Lee served in the Senate until early this year, “is willing to work with us on sentencing reform” despite the fact Sessions voted against SRCA15 because he argued it went too far in reducing mandatory minimum sentences for some crimes.

Sen. Grassley said he had supported tougher sentencing in the 1980s and 90s, including mandatory minimum legislation, because it was the right solution to the rising crime rate at the time. But now, he admits “it makes sense to revisit” the laws. He said mandatory minimums are “too severe” and give prosecutors too much discretion in charging. Noting that 25% of DOJ budget is now spent on prisons, Sen. Grassley said the SRCA would “free up federal resources and give prisoners a chance to reform.”

Sen. Lee agreed. “We have finite resources to fight crime. The more spent on prisons, the less is left for enforcement, making communities safer… What we’re doing now on sentencing is not working,” said Sen. Lee, a former federal prosecutor.

He challenged those who oppose reform proposals to share their ideas. “We have to get to the politicians on this.” He said legislators are looking at how to properly identify low-level nonviolent drug offenders. Contrary to AG Sessions’ view, Sen. Lee said the act of drug trafficking “itself is not violent.”

moses171027“The federal sentencing laws were not handed down from Mt. Sinai,” Sen. Lee said. The SRCA is “just a matter of common sense and sound public policy.” The problem, Lee and Holden suggested, was that SRCA supporters will run into the charge that they are “soft on crime.”

“We are going to have address the argument that ‘you are soft on crime’,” Sen. Lee said. “There are not the same market drivers in the federal sphere” as in state criminal justice reform. States cannot “kick the can down the road” like Congress can. At the state level, Sen. Lee said, the argument is to be “smart on crime, soft on taxpayers.” At the federal level, it “still works to be tough on crime. But every state that has done [sentence reform] had reduced crime rates and saved money.”

Axios, an online news site, reported that Lee said to a reporter afterwards that he wants a vote on SRCA before the end of the year, but with health care and tax reform in focus, the criminal justice reform bill has yet to be a priority.

The Crime Report, Federal Sentencing Reform Alive, Senators Insist (Oct. 27, 2017)

– Thomas L. Root


All Pro Appellate Judge Stumbles at Trial – Update for October 25, 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’s an old saying among trial attorneys that goes something like for the judge to instruct the jury to disregard something very prejudicial it has just seen or heard is “like throwing a skunk into the jury box and then telling the jury to disregard the smell.”

skunk171025The smell in a decision from the 7th Circuit earlier this week was just too intense. What makes the case even more noteworthy is that the trial judge who crossed the line was not just some small-town hack put on the bench as a reward for political loyalty, but rather Circuit Judge Richard Posner, arguably the 7th Circuit’s MVP for the past 25 years.

Judge Posner was taking a turn in the trenches, as circuit judges do from time to time, just to experience some of the rough-and-tumble which they are called upon to referee up on the appellate bench. The plaintiff was Hakeem El-Bey, a self-described Moorish national, who was running the usual tax scam in which he set up an eponymous trust, naming himself as the trustee and fiduciary, and then claimed $300,000 refunds from the IRS. (There are finer points to the scheme, but we’ll leave them out, because they might just encourage illegality).

The IRS resisted his demands, but someone at the Service finally pushed the wrong button, and a check for $300,000 got sent to Hakeem, who quickly spent it. The blunder happened again a few months later, and Hakeem figured he was on Easy Street.

Alas, it was not to be. The IRS Criminal Division caught up with him, and in short order Hakeem was indicted for mail fraud and making false claims to the IRS.

Hakeem represented himself at trial, an idea the foolishness of which we probably do not have to explain. Judge Posner permitted Hakeem his blunder, but appointed a standby attorney, Gabriel A. Fuentes.

sovereigncitizen161125Hakeem followed the tax protester/sovereign citizen script to the letter, filing pretrial motions related to admiralty law, the Uniform Commercial Code, and the Federal Rules of Civil Procedure. Judge Posner excluded Hakeem’s sovereign citizen evidence, and warned Hakeem that if he brought it up, the judge might exclude him from the courtroom, too, and let attorney Fuentes carry the defense load/

Some background here: the IRS likes to say it depends on voluntary compliance with the tax laws. And of course it does, just like the state police depend on voluntary compliance with the traffic laws. There’re just not enough cops to stop everyone. But Hakeem and his fellow tax protest travelers like to argue that “voluntary compliance” means taxpayers send in their checks and returns out of the goodness of their hearts. The argument has more holes than a swiss cheese factory, but that inconvenient fact does not deter the Hakeems of the world.

At trial, Hakeem cross-examined an IRS representative on the matter, asking her whether federal tax law compliance was voluntary. She responded:

The tax laws are based on individuals taking their information, voluntarily putting them on the tax returns, and mailing them to the IRS. However, the law states if you don’t do that the IRS can come in and file for you because the law states you file and pay your income tax.

aha171025Hakeem figured this was his “A-ha!” moment. He argued with the witness that “you just contradicted yourself. Because in one case you are saying that the IRS is saying filing taxes is voluntary compliance?” At this point, Judge Posner had had his fill:

THE COURT: Look, paying taxes is not voluntary.
THE DEFENDANT: That’s what it says here. I’m not saying it.
THE COURT: Come on.
THE DEFENDANT: Judge, I’m not saying it.
THE COURT: You don’t pay your tax, you go to jail.
THE DEFENDANT: Judge, I’m just saying what they are saying what they have—
THE COURT: Payment of taxes to the government is not voluntary.
THE DEFENDANT: Okay. Judge, so you brought in from behind the law.
THE COURT: Just—look, I’m going to kick you out if you keep on with this nonsense. You understand that? You can go watch the case from another room.
THE DEFENDANT: Okay. I am through.
THE COURT: Don’t you say that tax payment is voluntary.

The jury heard it all.

The government, with one eye on an appeal, was concerned. The next day, before the jury entered the courtroom, the AUSA told the judge “that some of what happened yesterday may have been potentially prejudicial to the defendant … importantly, perhaps, [it] has left a misimpression with the jury in certain respects.” Judge P agreed, and instructed the jury that it should ignore the malodorous exchange of the day before:

After the jury entered the courtroom, the court explained, “You don’t have to worry about the exchanges that Mr. El-Bey and I have had. And I don’t want you to feel any hostility to Mr. El-Bey just because I got annoyed occasionally.” He then proceeded to read parts of the transcript of the previous day’s exchange back to the jury, including his exchange with Hakeem on “voluntary compliance.” The judge concluded

When I said: If you don’t pay taxes you go to jail, what I was simply saying was you must pay taxes, and if you don’t pay taxes it’s criminal and you can be sent to jail. I was not talking about Mr. El-Bey, because he isn’t charged with tax evasion.

Unfortunately, the judge was not quite done. When he was reading the jury instructions, Judge Posner went off-script, ignoring the written instruction on materiality, and ad libbing instead:

One [element] is that … the scheme to defraud involved a materially false or fraudulent pre-tense, representation, or promise. That’s very important, that notion of materiality… Little white lies, those are not material falsehoods. They don’t—I mean, they may embarrass you when it’s discovered, but they’re not—that’s not wrongful conduct. It’s when, with specific reference to our case, if you—if tell—if you tell the Internal Revenue Service a lie which is capable of getting them to do something which they would never do if they knew the truth, namely, give you $300,000 to which you’re not entitled, that is a material falsehood. That’s fraud. And that is an element of the charges.

swift171025On appeal, Hakeem complained that Judge Posner had been biased against him, and thus violated his due process right to a fair trial. In the 7th Circuit, that’s like accusing Taylor Swift of lip-syncing. But the 7th had to reluctantly that Hakeem had a point:

It is clear from the transcript of the trial court proceedings that El-Bey was a difficult litigant. He filed numerous irrelevant motions, disregarded court instructions, and often inappropriately interrupted the district court to express disagreement and dissatisfaction. Nonetheless, we agree with El-Bey that the district court’s remarks during cross-examination of the government’s first witness conveyed bias regarding his dishonesty or guilt. The district court interrupted El-Bey at the beginning of his cross-examination, stating, “Look, paying taxes is not voluntary.” When El-Bey noted that he was only reading what the document stated, the district court remarked “Come on”—a statement laced with skepticism. The district court continued with further remarks in the presence of the jury reflecting upon El-Bey’s dishonesty or guilt, stat-ing, “You don’t pay your tax, you go to jail,” and “I’m going to kick you out if you keep on with this nonsense…” The purpose of the comments cannot eliminate the bias conveyed to the jury by the remarks here. The court’s statements that one who does not pay taxes goes to jail and that El-Bey was acting in a nonsensical manner indicated bias about El-Bey’s guilt or honesty to the jury.

And if that were not enough, the Circuit said, Judge Posner did it again when he ad libbed instructions that “conveyed to the jury that El-Bey was guilty by concluding that El-Bey’s receipt of the checks and money made him guilty of mail fraud and making false claims.”

The appellate court had no doubt about Hakeem’s culpability, noting that “there is more than enough evidence of El-Bey’s guilt. But in the end, that did not matter. “We must… conclude that the unfairness in the trial requires reversal,” the court said. “Any other holding would constitute the adoption of the principle that a defendant the court thinks is obviously guilty is not entitled to a fair trial.”

Hakeem will be retried. Judge Posner will probably not be there.

United States v. El-Bey, Case No. 15-3180 (7th Circuit, October 24, 2017)

– Thomas L. Root