All posts by lisa-legalinfo

A Short Rocket From (Or To) The BOP – Update for December 9, 2022

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

Today we offer our occasional “short rocket” of BOP news – not all of it good – from the past weeks.

rocket190620

EX-WARDEN GARCIA CONVICTED, FSA CRITICISM, PRIVATE PRISONS CLOSE, DOJ BLASTS BOP OVER WHITEY BULGER

AUSA Gets Sex Predator Warden: The former warden of FCI Dublin, a federal women’s prison southeast of San Francisco,  was convicted in Oakland federal court on Thursday of molesting inmates and forcing them to pose naked in their cells.

sexualassault211014Ray Garcia was found guilty of all eight charges and faces up to 15 years in prison. He was among five workers charged with abusing inmates at Dublin, who claimed they were subjected to rampant sexual abuse including being forced to pose naked in their cells and suffering molestation and rape.  The trial was noteworthy for the government arguing to jurors that they should believe inmates and former inmates over Garcia, perhaps one of the few examples in recent history of the government believing inmates over guards.

Garcia, 55 years old, retired from last year after the FBI found nude photos of inmates on his government-issued phone. Garcia was charged with abusing three inmates between December 2019 and July 2021.

At trial, Garcia claimed he had photos of naked inmates because he had caught them engaging in sex, and the pictures were evidence of their offenses. Confronted with the fact that he had never filed disciplinary reports against the women he had photographed, he explained he had forgotten to write them up.

Prosecutors introduced evidence that Garcia’s abuse of several inmates followed a pattern that started with compliments, flattery and promises of transfers to lower-security prisons, and escalated to sexual encounters. Garcia is charged with abusing three inmates between December 2019 and July 2021, but others also said he groped them and told them to pose naked or in provocative clothing. Jurors deliberated over parts of three days following a week of testimony, including from several of Garcia’s accusers and the former warden himself.

“Instead of ensuring the proper functioning of FCI Dublin, he used his authority to sexually prey upon multiple female inmates under his control,” U.S. Attorney Stephanie Hinds said, calling Garcia’s crimes a betrayal of the public trust and his obligations as a warden.

Santa Rosa Press-Democrat, Ex-Dublin prison warden convicted of sexually abusing inmates (December 8, 2022)

LA Times, Ex-warden of California federal women’s prison goes on trial for inmate abuse charges (November 28, 2022)

Four Years After First Step, Earned Time Credits Still Unsettled: The BOP’s recent press release and program statement on First Step Act time credits allowed for a grace period until December 31 for inmates to complete needs assessments, and eliminated the rule that credits earned after an inmate was within 18 months of release could not count for sentence reduction rule.

mumbo161103Writing in Forbes last week, Walter Pavlo noted that “the information provided by the BOP was lacking in specifics as to when this program will be fully implemented. The press release stated that ‘inmates will soon be able to see all potential Federal Time Credits (FTC) they may earn over the course of their sentence.’ The use of the term “soon” is relative and causes undue stress on both inmates and BOP staff.”

In fewer than three weeks, the First Step Act will be four years old. Pavlo rightly complains that setting firm deadlines like “soon” and with “a poor track record thus far… the BOP has no timetable for having this new program statement put into action. In the interim, there are inmates in prison who could, because of this program statement, be released, placed in halfway house, placed on home confinement, or placed on CARES Act home confinement.”

Pavlo argues that while “there is no complexity to many of these calculations… there is no central authority named to conduct these assessments between the program statement announcement and the implementation of an automated calculator.” The BOP has already lived through two FSA credit calculators, the one that was implemented last January when the Dept of Justice forced the BOP to turn 180 degrees on its draconian proposed rules, and the second – touted as “an application to fully automate calculations” due last August but not implemented (with disastrous results) in October.

That October automated calculator now goes back to the drawing board, “making it over a year since the Final Rule that inmates will have clarity on what FSA will mean to them,” Pavlo wrote.

Forbes, First Step Act Delays Continue In The Bureau of Prisons And People Are Locked Up Beyond What The Law States (November 30, 2022)

BOP, P.S. 5410.10, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (November 17, 2022)

BOP, First Step Act Time Credits Policy Released (November 18, 2022)

BOP Inmates Out of Private Prisons: The BOP announced last week that consistent with President Biden’s January 2021, Executive Order, the agency has ended all contracts with privately managed prisons. The contract with the last private prison, McRae Correctional Facility in Georgia, ended on November 30, 2022.

The BOP said, “All BOP inmates previously housed in these private prisons have been safely transferred to BOP locations without incident.”

Since the mid-1980s, the BOP maintained contracts for 15 private prisons, housing about 29,000 federal inmates.

An interesting factoid buried in the BOP press release: the agency said it “employs 34,813 staff.” This is a substantial decrease from just a year ago, when the BOP reported 36,739 workers.

BOP, BOP Ends Use of Privately Owned Prisons (December 1, 2022)

‘BOP Lied, Whitey Died,’ DOJ Inspector General Says: In a report which should shock no one familiar with the Bureau of Prisons – except that the Dept of Justice took so long to produce it – the Inspector General has concluded that a chain of bureaucratic errors, incompetence,  health system failures, and deliberate falsification resulted in the bludgeoning death of celebrity crime boss James (Whitey) Bulger within 12 hours of his arrival at USP Hazelton in 2018.

The Inspector General determined that BOP officials at USP Coleman approved downgrading Whiteyr’s medical status from Care Level 3 to 2 solely to get BOP approval to transfer him from Coleman – where he had spent eight months in the Special Housing Unit after allegedly threatening a nurse – to Hazelton (a place known with some justification as “Misery Mountain”). The decrease in Care Level (and omission of any reference in the transfer papers to his life-threatening cardiac condition) came after a prior attempt to transfer Whitey was stopped by BOP Central Office medical staff because of his age and medical condition.

lockinsock181107Despite Whitey being a celebrity prisoner due to his notorious past, Hollywood treatment of his life, and his history of being a federal informant, over 100 people inside the BOP knew of his transfer. At USP Hazelton, even before Whitey’s arrival inmates were taking bets on how long he would survive before being killed.

Nevertheless, the BOP took no extra security precautions. As a result, within 12 hours of his arrival at Hazelton, Whitey was placed in general population and beaten to death with a padlock inside an athletic sock (colloquially known as “a lock in a sock“).

Mr. Bulger’s death was preventable and resulted from “staff and management performance failures; bureaucratic incompetence; and flawed, confusing, and insufficient policies and procedures,” the IG concluded.

A curious observation in the Report noted that BOP staff should have considered that the eight months Whitey spent in the Coleman SHU “in a single cell before his transfer from Coleman caused him to state in a September 2018 Psychology Services Suicide Risk Assessment that ‘he had lost the will to live,’ and may have affected his persistence upon arriving at Hazelton that he wanted to be assigned to general population.”

A weird twist: In 2019, accused sex predator Jeffrey Epstein allegedly killed himself in BOP custody amid rumors that the death was not what it seemed. Those conspiracy theories are largely debunked. But now, perhaps Whitey actually did commit “suicide-by-inmate” in a death that otherwise was clearly a murder.

DOJ, Investigation and Review of the Federal Bureau of Prisons’ Handling of the Transfer of Inmate James “Whitey” Bulger (December 7, 2022)

New York Times, Investigation Finds Errors and ‘Incompetence’ Led to Whitey Bulger’s Death (December 7, 2022)

– Thomas L. Root

Courts Release Prisoners Because of BOP Medical Neglect – Update for December 8, 2022

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

TWO COMPASSIONATE RELEASE DECISIONS SLAM BOP MEDICAL CARE

Two district courts, separated by some 3,400 miles, granted compassionate release to prisoners in the last two weeks based in substantial part on inadequate Bureau of Prisons medical care.

BOPMedical221208In Greensboro, North Carolina, a federal judge reduced Ronnie Burr’s 240-month drug distribution conspiracy sentence to time served. Ronnie filed for compassionate release in 2020 but was denied on § 3553(a) sentencing factors. When he sought reconsideration, the district court decided he “was not receiving appropriate medical care for all his medical issues, that he lived through “dire conditions… at Fort Dix during the pandemic caused in part by BOP mismanagement, and that these facts constituted extraordinary and compelling reason to warrant a sentence reduction.” Including “the delays in medical treatment, including a recommended endoscopy for his gastritis, and the ‘exceptionally difficult’ conditions of confinement during the pandemic,” the judge cut his sentence by nine months.

In May 2022, Ronnie filed again, complaining that BOP medical treatment had not improved. Ronnie still had not gotten the endoscopy that had been recommended two years before, but the government argued the endoscopy had “not been considered urgent by treating health professionals.” The court rejected that as “conjecture,” relying on Ronnie’s expert’s evidence that a gastric ulcer can be cancerous, an endoscopy is needed to determine if Mr. Burr has a gastric ulcer, Mr. Burr’s healthcare providers have repeatedly ordered an endoscopy, the BOP repeatedly failed to follow through with arranging one, and failure to timely diagnose a cancerous gastric ulcer can be fatal. When the BOP finally scheduled the test, they failed to arrange appropriate staffing to take Mr. Burr off-site for the test, and then did not reschedule the test to occur for two more months. Beyond explaining that “staffing issues” prompted the canceling of the finally-scheduled endoscopy, the government has offered no evidence of why it took them years to schedule the endoscopy or why it did not arrange for adequate staffing once the test was finally scheduled.”

The Court reduced Ronnie’s remaining 8½ years to time served, observing that “[w]hile it is a positive that the procedure is finally scheduled for later this year, that is worth little weight, since the BOP already canceled Mr. Burr’s endoscopy once and may do so again.”

The Court said, “The uncontradicted evidence shows that the BOP has failed to obtain a medically-ordered test for over two years, that the failure could lead to a failure to timely diagnose and treat cancer, and that the failure is not an aberration, given the long delay in scheduling a consultation with a pulmonologist and the failure to schedule a follow-up visit after his surgery… Continued incarceration in the face of ongoing constitutionally deficient medical care is unjust punishment, not just punishment.”

healthbareminimum220603Meanwhile, up north in Alaska, Tom Ranes – serving a 360-month sentence for a drug conspiracy (with 8½ years to go) – also had sought a compassionate release in 2020 that the court had denied for § 3553(a) factors. He filed again last summer.

Tom was a healthy man when he began his sentence, but a fall from an upper bunk injured his tailbone, and everything spiraled downward from there. Now, the Court found, he “has significant digestive tract issues and diseases of the anus and rectum, for which he has received over twenty surgeries during his incarceration. He has had multiple sections of his large intestine removed due to complications from medical treatment he received while in BOP custody, followed by multiple procedures to implant and then repair medical mesh for an incisional hernia. After using a colostomy bag from 2009 through 2011, Mr. Ranes had multiple surgeries to correct subsequent complications. He… has frequent UTIs,~ and endures chronic abdominal pain and abnormalities… In 2019, Mr. Ranes suffered a herniated disc and a detached disc in his spine… Nearly three years later, he has yet to receive the necessary surgery for his injury.”

The Government denied that Tom’s condition presented “extraordinary and compelling circumstances” and argued release was inappropriate under the § 3553(a) sentencing factors. The Probation Office agreed.

The Court did not. It noted that “in the two years since the Court’s previous Order… Mr. Ranes’s health continues to deteriorate, and, troublingly, BOP has yet to provide appropriate medical treatment — even after this Court warned that he has received ‘alarmingly inadequate medical care’ and has ‘yet to receive necessary surgery.’”

prisondoctor221208The Court said that “in isolation, Mr. Ranes’s loss of a vital bodily function and diminished ability to care for himself while at a correctional facility could constitute extraordinary and compelling circumstances. However, it is the confluence of these conditions with the COVID-19 pandemic that undoubtedly warrant release.” Tom’s “medical condition, his inability to receive appropriate medical treatment and supplies while in BOP custody, and his increased risk of complications from COVID-19 infection present extraordinary and compelling circumstances that justify release.”

Tom’s sentence was reduced to time served with expanded supervised release, two years of which will be served on home confinement.

United States v. Burr, Case No 1:15-cr-362, 2022 U.S. Dist. LEXIS 216371 (M.D.N.C., Dec. 1, 2022)

Order Granting Renewed Motion for Compassionate Release, United States v. Ranes, Case No 3:06-cr-00041 (ECF 1165) (D.Alaska, Nov. 22, 2022)

– Thomas L. Root

Hopes for Marijuana Criminal Justice Reform In This Congress May Be Dead – Update for December 6, 2022

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

“REEFER MADNESS” AS SENATE DEMOCRATS SELL OUT ON POT CRIMINAL JUSTICE REFORM

reefer181210It turns out not to matter that voters want cannabis reform, or that the MORE Act has passed the House and probably could have passed the Senate by a filibuster-proof majority, or even that Senate Majority Leader Charles Schumer said just a few weeks ago that he was pushing for marijuana reform this year.

On Saturday, Axios broke the news that Schumer would bring the Secure and Fair Enforcement Banking Act (H.R. 1996) to a vote, giving up on comprehensive reform that included expungement of federal marijuana trafficking convictions. The compromise legislation does not legalize marijuana on a federal level, leaving pot as a Schedule I drug, like heroin and LSD.

The MORE Act (H.R. 3617) is dead. The replacement Cannabis Administration and Opportunity Act (S. 4591) – which also included retroactive expungement of federal marijuana convictions – also appears to be dead. The only measure that could include any criminal justice reform is the National Defense Authorization Act (H.R. 8900), which the House may use as a vehicle for drug criminal justice reform.

Instead, Democrats in the Senate will push to liberalize banking access to the cannabis industry. The SAFE Banking Act would provide a “safe harbor” for regulated banks to work with cannabis firms in states where cannabis is legal.

Schumer says he will “more than likely” attach the legislation to a must-pass year-end bill like the NDAA, which gets a vote annually. The House of Representatives attached the EQUAL Act (H.R. 1693) to the NDAA last July 19 with bipartisan support, but no one is talking about the Senate doing the same.

ironyalert220523Ironically, the Schumer package also reportedly includes the Harnessing Opportunities by Pursuing Expungement Act of 2021 (H.R. 6129), known as the HOPE Act. According to a bill summary, the measure “authorizes the DOJ to make grants to states and local governments to reduce the financial and administrative burden of expunging convictions for state cannabis offenses.” In other words, Congress will authorize money to help states expunge marijuana convictions, but it won’t lift a finger to expunge federal convictions.

Yesterday, House lawmakers delayed committee consideration of the NDAA amid disagreements over key issues. Democratic leaders had hoped to see the NDAA advance with marijuana reform provisions attached.

The House Rules Committee was expected to take up the NDAA on Monday, but Chairman Jim McGovern (D-MA) deferred consideration, saying the “package is not ready yet.”

Abandonment of cannabis criminal justice reform by the Senate Democrats – who torpedoed the MORE Act to begin when Sen Cory Booker (D-NJ), Sen Ron Wyden (D-OR) and Schumer introduced the alternative CAOA – came at the end of a week in which the New York Times criticized last month’s Biden mass pardon of people with marijuana simple possession convictions. The Times reported, “And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.”

warondrugs211028The Times observed that Biden was a “champion of aggressive drug laws earlier in his career, including the 1994 crime bill that led to mass incarceration,” although “he has more recently embraced leniency for those convicted of minor drug offenses.” Biden has said he does not support legalizing marijuana, “putting him at odds with 80% of self-described Democrats and 68% of Americans, according to a Gallup poll released this month,” The Times said.

The SAFE Banking Act is an incremental change in cannabis laws, being rolled out just as Marijuana Moment editorialized for taking such an approach. “It’s time to acknowledge that incrementalism is not selling out, it is not crumbs, and it is not failure,” the website said last week. “Failure is continuing to lock up our citizens while we quibble over who gets the spoils of a post-prohibition world.”

This leaves the Dept of Health and Human Services study rescheduling marijuana as the best hope for any change leading to sentencing reform. Last month, the National Law Journal reported that a panel of consulted legal experts estimated that marijuana will be rescheduled as a Schedule II or III drug by January 20, 2025.

Axios, Scoop: Senate plots pro-pot move for lame-duck (December 3, 2022)

Guardian, Senate Democrats to reportedly push banking reforms for cannabis industry (December 3, 2022)

Fox Business News, Senate aims to attach major marijuana legislation to end-of-year ‘must-pass’ bills: report (December 3, 2022)

Catholic News Agency, Bishops urge passage of bill that would give same sentences to crack and powder cocaine offenders (August 11, 2022)

Marijuana Moment, Democrats’ Focus On Social Justice Marijuana Bills Has Blocked Achievable Progress On Reform (December 2, 2022)

National Law Journal, Editor’s Roundtable: A New Biden Doctrine? (October 31, 2022)

Marijuana Moment, Fate Of Marijuana Banking Reform Uncertain As Lawmakers Delay Defense Bill Consideration Amid Disagreements (December 5, 2022)

– Thomas L. Root

Benefit of the Dout – Update for December 2, 2022

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

6TH CIRCUIT CUTS INMATE FILER A BREAK ON CONFUSING PLEADING

cutbreak221201Eighty-three days after his judge denied his 28 U.S.C. § 2255 motion, Joe Reho filed something with the district court. It may have been a motion for an extension of time to apply for a certificate of appealability. It may have been a notice of appeal. No one was quite sure what it was, but everyone was quite sure it was written without the benefit of a dictionary nearby.

The district court decided it must be a notice of appeal and dismissed it as being 23 days late.

Last week, the 6th Circuit remanded the case, concluding that Joe’s motion, which repeatedly asked for an extension of time, “is better construed as a motion for extension of time to file a notice of appeal.”

grammar221201Under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, district court may extend the time to file a notice of appeal based on “excusable neglect or good cause” if an extension is filed within 30 days after the notice of appeal due date. Here, Circuit said, construing Joe’s “filing liberally, we conclude that he moved for an extension of time to file a notice of appeal. While the district court docketed the document as a notice of appeal, Joe’s motion requested, in the opening paragraph, ‘a extention of time to filed a certificate of Appealability… and to proceed inform a peuperis on appeal.”

CantSpell221201“This court construes pro se habeas petitions liberally,” the 6th held, apparently even where spelling and grammar are butchered. “For instance, we regularly construe notices of appeal as applications for a certificate of appealability… We have also construed motions for extension of time as notices of appeal… Repo’s motion appears to ask for an extension to apply for a certificate of appealability rather than for an extension to file a notice of appeal. But his motion is a far cry from the simple notices of appeal that we have refused to construe as motions for extension… Repo’s motion reads as a motion for extension of time to file a notice of appeal and will be treated as such.”

Reho v. United States, Case No 22-3784, 2022 U.S.App. LEXIS 31392 (6th Cir., Nov. 14, 2022)

– Thomas L. Root

Pardoning Turkeys, Not People – Update for December 1, 2022

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

BIDEN TURKEY PARDONS DRAW CRITICISM

President Joe Biden continued a 75-year tradition last week, pardoning a pair of North Carolina turkeys named Chocolate and Chip after his favorite flavor of ice cream.

turkeypardon221201“The votes are in, they’ve been counted and verified,” Biden said, granting the pardons. “There’s no ballot stuffing. There’s no fowl play.”

Vote counting apparently did not include the over 18,000 people whose applications for pardons or commutations are piled up at the Dept. of Justice Pardon Attorney’s office.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, referred to the ceremony as “the annual turkey pardon silliness at the White House.”

clemencybacklog190904Reason magazine was not much kinder to Biden’s clemency for those convicted of simple marijuana possession announced in October. The mass pardon was “an example of all hat and no cattle,” Reason said. “‘I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,’ [Biden] said in October. ‘None…’ But not a single person was released from custody by the Bureau of Prisons due to Biden’s proclamation… The presidential pardon power can and should be used more often. Not just for turkeys, but for the thousands of people serving decades due to draconian drug laws that Biden supported for most of his political career.”

Associated Press, Biden opens holidays, pardons turkeys Chocolate and Chip (November 21, 2022)

Sentencing Law and Policy, Does Prez Biden’s clemency record in 2022 deserve some praise on the day of turkey pardons? (November 21, 2022)

Reason, Pardon People, Not Turkeys (November 23, 2022)

– Thomas L. Root

Congressional Cannabis Reform Predicted for December – Update for November 29, 2022

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

INTEREST INCREASES IN PASSING MARIJUANA REFORM

marijuana221111While no one is talking about pushing the EQUAL Act (S.79) over the finish line before the current Congress expires on January 2nd, the last two weeks have seen a flurry of activity in marijuana reform raising hopes that legislation that includes relief for people serving pot-related sentences may yet pass the Senate next month.

On November 16, the Senate passed H.R. 8454, the Medical Marijuana and Cannabidiol Research Expansion Act, and sent the bill to President Joe Biden. The bill removes barriers making it difficult for researchers to study the effectiveness and safety of marijuana-derived medicines. When it passed, Senate Majority Leader Charles Schumer (D-NY) – who controls what bills come up for a full Senate vote – said, “I hope after passing this bill the Senate can make progress on other cannabis legislation, too. I’m still holding productive talks with Democratic and Republican colleagues in the House and the Senate on moving additional bipartisan cannabis legislation in the lame duck.”

Marijuana Moment reported last week that “talks are intensifying over a marijuana banking and expungements bill that Senate leadership is working to finalize, with advocates feeling increasingly optimistic about seeing action” during the final weeks of this Congress.

On January 2, 2023, the 117th Congress comes to an end. Any pending bills that have not been passed will be discarded. A new Congress, the 118th, begins the next day. This means the EQUAL Act, the MORE Act, the First Step Implementation Act, and everything else in the legislative hopper will disappear.

lameduck221201The MORE Act (H.R. 3617) (which has twice passed the House), has been stalled because of the Cannabis Administration and Opportunity Act (CAOA), S.4591, a competing bill introduced by Senators Schumer, Ron Wyden (D-OR) and Cory Booker (D-NJ) last summer. A compromise pot bill was blocked from receiving a unanimous consent Senate vote in September.

While the latest signals indicate that compromise legislation will be less wide-ranging than some initially expected, banking and criminal justice reform appear to remain at the center of the talks. The text of any compromise has yet to be released so it remains unclear what will make it into the final bill.

The negotiations in their current form are leading to “unprecedented levels of optimism” about passing a cannabis reform package by the end of the current Congress, one advocate familiar with the status of negotiations told Marijuana Moment.

Colorado Springs Indy, Landmark bill reaches  president’s desk (November 23, 2022)

Marijuana Moment, Congressional Talks On Marijuana Banking And Expungements Bill Intensify As Advocates Push For Equity Amendments (November 23, 2022)

NORML, NORML Deputy Director Testifies on Marijuana Legalization Before House Subcommittee (November 15, 2022)

– Thomas L. Root

Fraud Takes the Stage at Supreme Court – Update for November 28, 2022

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

SCOTUS TO HEAR TWO CRIMINAL FRAUD ARGUMENTS TODAY

Fraud170406The Supreme Court will hear arguments today on two criminal fraud cases that explore whether people who work privately for government officials owe a duty of honest services to the public under what the Wall Street Journal calls “the ill-defined honest-services fraud statute.”

In the first case, former state official Joseph Percoco was serving as campaign manager for former New York Gov. Andrew Cuomo at the time he accepted a $35,000 payment from a real-estate developer to help obtain government approval for a project. The government declared him to be “functionally a public official” because he had clout with state agencies. Thus, the US Attorney said, Joe committed honest-services fraud.

Joe complained in his Supreme Court brief that the 2nd Circuit’s“functionally a public official” rule could have “sweeping implications not only for lobbyists and donors but also for the family members of public officials, who ‘hold unparalleled access and influence’ and whose ‘independent business interests may be in a position to benefit from state action,'” according to SCOTUSBlog.

ambiguity221128The federal prosecutorial approach to fraud has created confusion in lower courts for years. In the last decade, the “right of honest services” has been especially pernicious: nowhere in the statute or a definitive Supreme Court ruling is the “right of honest services” defined.  In fact (as Joe has argued), the Supreme Court’s 2010 Skilling v. United States decision and 2016 McDonnell v. United States have pretty much established that bribery laws are “concerned not with influence in the abstract, but rather with the sale of one’s official position.” Private citizens cannot take official action or use their positions to bring about government action, Joe contends, because they have no such positions. Thus, they cannot violate federal fraud laws.

In Skilling v. United States, the Supreme Court limited criminal liability for fraud to kickback and bribery schemes, but at the time three Justices – Scalia, Thomas and Kennedy – believed the law’s vagueness made it unconstitutional. Lower courts have held that public officials owe a “right of honest services” to their constituents, but the Supreme Court has never ruled that private individuals owe a fiduciary duty to the public.

Last week, the Wall Street Journal complained,

Was Mr. Percoco paid to leverage his political clout? Of course. His simultaneous employment as Cuomo’s campaign manager and a business consultant is certainly sketchy. But the government’s theory… could be used to prosecute any powerful lobbyist, including former lawmakers who don’t act in the putative public interest…This would present First Amendment concerns since citizens have the right to petition their government. It would also impair due process for private citizens who have no way of knowing if they are covered by the honest-services law.

In the second case, the government charged contractor Louis Ciminelli, a Cuomo campaign contributor, with conspiracy to commit fraud by rigging a construction contract for a state-subsidized solar panel plant. A member of a nonprofit overseeing the project drafted the proposal to favor Lou’s construction firm. There was no evidence Lou directed the proposal’s terms, nor that either the state or nonprofit suffered any loss of property as a result of Lou’s firm being chosen.

moneyhum170419But the government claimed Lou defrauded the nonprofit of its “right to control its assets” by “exposing it to the risk of economic harm through false representations about the fairness and competitiveness of the bidding process.” Prosecutors did not produce evidence linking Lou to any bribes or kickbacks. Instead, the prosecutors discussed deprivation of a “right to control”: Lou’s deception deprived the nonprofit board of its right to control the funds and the allocation process.”

As the Wall Street Journal put it, “If you’re struggling to understand the government’s convoluted theory, you’re not alone.”

SCOTUSBlog said Lou’s “main wrongdoing appears to be his ‘sneaking to the front of the line’ in the negotiation process. If the Supreme Court continues its trend of narrowing the scope of federal fraud criminalization, it can do so by eliminating the ‘right to control’ theory of fraud.”

Lou has completed his sentence, while Joe is on home confinement. A Supreme Court win won’t give them back the time they served, but their names could be cleared.

Wall Street Journal, The Supreme Court gets a Fraud Test (November 25, 2022)

SCOTUSBlog, A sharp business deal or a federal crime? Justices will review what counts as fraud in government contracting (November 25, 2022)

SCOTUSBlog, Former aide to Andrew Cuomo wants court to narrow scope of federal bribery law (November 27, 2022)

– Thomas L. Root

Right Claim, Wrong Vehicle? – Update for November 23, 2022

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

MAGISTRATE THROWS OUT FCI SHERIDAN LOUSY-CONDITIONS HABEAS PETITIONS

judge160620An Oregon federal magistrate judge last week recommended that some 200 habeas corpus actions alleging insufficient medical care at FCI Sheridan be dismissed.

The magistrate judge ruled that the petitioners have been pursuing the wrong legal strategy. Rather than habeas corpus, the inmates “should have worked to address their concerns through other means.

The Opinion and Order stated that while

the Court is sympathetic to Petitioners’ difficult experiences at Sheridan during the pandemic, the Court cannot conclude that merely alleging that no conditions of confinement could satisfy the Eighth Amendment is sufficient to confer habeas jurisdiction under circumstances such as those present here… Petitioners insist that they are challenging the fact of their confinement, but they do not allege that their convictions or sentences are invalid in the first instance or that they are being held in excess of a lawfully imposed term of imprisonment. Instead, Petitioners allege that the harsh conditions at Sheridan place them at risk of serious harm from COVID-19, allegations premised on the conditions, and not the validity, of their confinement… Indeed, Petitioners’ claims “would not exist but for [the] current conditions” at Sheridan.

The Court ruled that the prisoners’ “argument that habeas jurisdiction exists simply because they allege that nothing short of their release may remedy the unconstitutional conditions at Sheridan thus improperly ‘conflates the nature of relief with the substance of the claim.’

Stirling v. Salazar, Case No. 3:20-cv-00712-SB, 2022 U.S. Dist. LEXIS 206892 (D. Or. Nov. 15, 2022)

Oregon Public Broadcasting, Federal judge dismisses claims of mistreatment in Oregon prison as wrong legal strategy (November 17, 2022)

– Thomas L. Root

‘Words’ of Compassion – Update for November 22, 2022

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

WORDS MATTER IN COMPASSIONATE RELEASE DECISIONS

Too Few Words Matter: Legally, there’s no limit to how many times a federal prisoner can file a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i)).

judge160425Practically, however, endless and repetitive motions have the remarkable capacity to really infuriate the judge.  Colloquially (and crudely), the correct formula for the number of such filings is

JR = POJ -1

where “JR” = Just the right number of filings and “POJ” = Pissed-off Judge

Some prisoners refile compassionate release motions endlessly, often making the same arguments but expecting a different outcome. Judges often just tune them out.

Bob Handlon filed a compassionate release motion that the court rejected because he had not exhausted administrative remedies by asking the BOP to file on his behalf first. Bob fixed that error and refiled his motion.

The district court denied his second compassionate release motion with a brief order saying only, “After considering the applicable factors provided in 18 USC § 3553(a) and the applicable policy statements issued by the Sentencing Commission, the Court [denies] the Defendant’s motion on its merits.”

A year later, Bob filed a third compassionate release motion, mostly rebutting government claims that he was dangerous but also raising new facts, that he had caught coronavirus again and was now suffering lasting medical problems from “long COVID.”

The district judge, who became impatient with Bob pretty early in the game, it seems, merely made a docket entry denying the third motion “for the same reasons stated in the court’s [previous] Order.”

Last week, the 5th Circuit reversed, holding that the district court had abused its discretion. The fact that Bob raised new facts in his third compassionate release motion made the district court’s terse order a little too little.

afewwords221122“A court cannot deny a second or subsequent motion for compassionate release ‘for the reasons stated’ in a prior denial where the subsequent motion presents changed factual circumstances and it is not possible to discern from the earlier order what the district court thought about the relevant facts,” the Circuit ruled. “Judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.”

A Lot of Words Matter, Too: Terry Rollins was left a paraplegic after a gunshot wound that cost him his right leg. When he was arrested for drug distribution in 2018, police found him septic and malnourished, lying in his bodily wastes. “But for his arrest,” the court said, Terry “likely would have died of his severe wounds and infections.” His condition was so bad that doctors recommend an operation called a “hemicorporectomy, which would ‘essentially cut him in half to remove the infected part of his body,’” the court said.

Terry moved for compassionate release while still in Marshal custody, arguing that he needed extensive surgery and the Marshal Service had already spent more than $1 million without providing him complete medical care.

manyguns190423The district court said Terry’s condition was “dire” but denied compassionate release. The court found Terry’s possession of seven guns and ammunition inside his home along with heroin, cocaine powder and crack were “very serious.” Terry argued that he could hardly be dangerous confined to a wheelchair, but the court noted that Terry’s paraplegia hadn’t kept him from armed drug dealing. Because Terry had not shown “he will no longer pose a threat to the public,” the district court denied his compassionate release motion.

Last week, the 5th Circuit upheld the denial. The Circuit agreed that Terry had made “a colorable argument. The hemicorporectomy “surgery is rare, often fatal, and comes with various complications, even if the procedure is successful… Mr. Rollins will need around-the-clock care for the foreseeable future… Without this grave surgery, Rollins ‘cannot perform basic functions without assistance.’ Rollins is not wrong to suggest that it seems highly unlikely that he will revert to criminal behavior… [and] contrary to the district court’s reasoning, all this indicates that the prison system is not the place that can provide medical care most effectively.”

“Yet,” the 5th admitted, “the abuse-of-discretion standard is a demanding one. It is not this court’s place to question the reasonable judgment of the district court in assessing the § 3353(a) factors.”

The district court used a lot of words, and adequately explained its reasons for denying compassionate release, the Circuit said.

Under the “abuse-of-discretion” standard, that was enough.

United States v. Handlon, Case No. 22-50075, 2022 U.S.App. LEXIS 31669 (5th Cir., Nov. 16, 2022)

United States v. Rollins, Case No. 22-30359, 2022 U.S.App. LEXIS 31870 (5th Cir., Nov. 17, 2022)

– Thomas L. Root

BOP Relents on FSA Credit Takeaway With “Grace” – Update for November 21, 2022

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

FSA-ELIGIBLE INMATES HAVE REASON TO BE THANKFUL (EVEN WHILE REMAINING A BIT CONFUSED)

Responding to mounting criticism about the Bureau of Prisons’ messy implementation of the First Step Act’s earned-time credits (ETCs), the BOP last week finally rolled out a program statement articulating its ETC policies.

firststepB180814For those just tuning in, the First Step Act – passed in December 2018 – established a program in which federal inmates could earn credits for successfully completing programs that were designed to reduce recidivism or participating in “productive activities” that are linked to resulting in less recidivism. Those credits (called “FSA credits” [First Step Act credits]) or “FTCs” [“Federal Time Credits) or “ETCs”) could be used by prisoners to reduce their sentences by up to 12 months or earn more time in halfway houses or home confinement. Although disrupted by the COVID pandemic and chronic staffing shortages, the BOP has been implementing the ETC program in fits and starts.

The latest snafu came in the implementation of a computer system to automatically calculate each prisoner’s ETCs (“Auto-Calc”). The system – planned for August 1 but actually launched the last week of September – automatically rescinded a lot of ETCs already granted, mostly because inmates had not completed online “needs assessment” surveys a year or more before, “surveys” that neither they nor the staff knew were mandatory in order to earn ETCs.

oddcouple210219Earlier last week, Senators Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, and Senator Charles Grassley (R-IA), ranking Republican on the Committee, jointly wrote to Attorney General Merrick Garland criticizing the BOP for (1) Auto-Calc’s having rescinded previously-awarded ETCs for some prisoners; (2) setting an arbitrary rule that the BOP would stop applying ETCs to the up-to-12 months’ sentence reduction when inmates are 18 months from the door; (3) not granting ETCs to people in halfway house and home confinement; and (4) failing to clean up the PATTERN risk assessment tool to address “unjustified disparities that have arisen.”

The BOP responded to Durbin and Grassley with alacrity (a sentence I never thought I’d write). As noted, when Auto-Calc came online, many prisoners who had seen their release dates move up due to award of ETCs months before suddenly lost some or all of their time because they had not completed online needs assessment surveys in 2020 and 2021. Of course, the BOP never told inmates that completion was mandatory if inmates wanted to earn credits. The BOP itself admitted that nearly half of staff interviewed for a March report indicated no familiarity with, or declined comment on, the needs assessment process and FSA incentives policies,” according to Forbes magazine.

In a press release issued Friday, the BOP said, “With the automation, some inmates noticed their time credit balance decreased due to incomplete needs assessments and/or declined programs. This policy includes a grace period, available until December 31, 2022, for inmates who have not completed all needs assessments or who have declined programs to try to address these issues. Beginning January 1, 2023, any incomplete needs assessments or any declined to participate codes will lead to the inmate not earning FTCs in accordance with the federal regulations.”

grace221121So people in federal custody now have until New Year’s Eve to figure out what needs assessments they “failed” to complete and to get them done.

The “grace period” policy is not written into the new Program Statement, suggesting that it is an 11th-hour change. Its absence from the Program Statement is a little worrisome: no one relishes going to court to enforce the terms of a press release.

Although the Program Statement doesn’t say anything about “grace” as such, it does contains a lot:

•   Every eligible prisoner with a low or minimum PATTERN score will receive a conditional projected release date based on the maximum number of ETCs he or she can earn during the sentence.

•   Prisoners remain eligible for ETCs even those locked up in the Special Housing Unit, unless they are in disciplinary segregation.

•    Productive activities have been defined in greater detail. Besides the “structured, curriculum-based group programs and classes” already defined in the First Act Approved Programs Guide, the new Program Statement provides examples such as “recreation, hobby crafts, or religious services,” visitation, ACE classes, institution work programs, community service projects, and even participation in an FRP plan.

The Program Statement provides little clue as to who determines which unstructured activities will count as “productive activities.” It only says, “Additional groups, programs, classes, or unstructured activities may be recommended to assist the inmate in establishing positive institutional adjustment and involvement in pro-social activities. The inmate’s risk level, needs assessment results, and program recommendations will be documented on the inmate’s Insight Individualized Need Plan, and the inmate will receive a copy.”

That suggests the BOP line employees will determine what unstructured programs will count, but it does not explicitly say that. The omission provides an excellent opening for confusion and unwarranted denial of ETC credit as managers at 122 separate BOP facilities define what is a productive activity in 122 different ways.

•  The Program Statement says “inmates with unresolved pending charges and/or detainers may earn FTCs, if otherwise eligible, but “they will be unable to apply them” to sentence reduction or halfway house/home confinement “unless the charges and/or detainers are resolved. An inmate with an unresolved immigration status will be treated as if he/she has unresolved pending charges with regard to the application of FTCs.”

So good news here: The BOP has consistently been defining inmates with detainers as being ineligible to even earn ETCs. Now, detainers will no longer prevent people from earning ETCs. But for some reason, the BOP continues to refuse to use ETCs for sentence reduction when people have detainers.

• The Program Statement makes it clear that inmates with medium/high PATTERN scores may earn ETCs, but that they cannot use them unless they work their way down to low or minimum risk assessment status.

What the Program Statement does not mention is how people in halfway houses or on home confinement can earn ETCs, despite the fact the First Step Act and the BOP’s own final rules contemplate it. In fact, reference to “community service projects” and “religious services” as unstructured activities seems to be perfectly suited for people on prerelease custody.

In the Merrick Garland letter, Senators Durbin and Grassley complained that the BOP has no mechanism to allow people on prerelease custody to earn ETCs.

makingitup221121Also unmentioned in the Program Statement is the BOP’s “18-month rule” that inmates with 18 months or less remaining on their sentences may not apply ETCs towards reducing their sentences. Senators Durbin and Grassley complained in their letter that the 18-month rule “is not supported by the FSA, nor does it further the FSA’s goal of incentivizing recidivism reduction programming for returning persons. Moreover, under this guidance, any federal prisoner with a sentence of 18 months or less would be unable to earn an earlier release date. BOP should therefore not implement an arbitrary cutoff on earning ETCs toward release.”

U.S. District Judge Lorna G. Schofield granted habeas corpus last week to a prisoner who complained that the BOP had arbitrarily refused to apply any of his ETCs earned after January 2022 to a shortened sentence. The BOP explained that it was not applying any ETCs to a reduced sentence once the inmate was within 18 months of release.

Judge Schofield ordered the BOP to apply the prisoner’s ETCs to a shortened sentence up to the 365-day limit. She ruled,

Letter to Attorney General (November 16, 2022)

Forbes, U.S. Senators Express Concern With Bureau Of Prisons’ Implementation of First Step Act (November 17, 2022)

BOP, P.S. 5410.10, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (November 17, 2022)

BOP, First Act Approved Programs Guide (August 2022)

Brodie v. Warden Pliler, 2022 U.S.Dist. LEXIS 202749 (S.D.N.Y., Nov 7, 2022)

– Thomas L. Root