Return of the ‘Exculpatory “No”’ – Update for May 9. 2017

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


industrialespionage170509It’s hard to resist an appellate decision the begins with a teaser that promises “if you wanted to learn about the secretive and lucrative world of titanium dioxide production, then this was the trial for you.”

Walter Liew is one of those Chinese expats who has never lost his affection for the motherland. In fact, the Chinese government – fairly renowned for stealing every secret, economic or otherwise, that the USA hasn’t nailed down – has honored Walt “for being a patriotic overseas Chinese who has… provided key technologies” to China.

Walt set out to steal a DuPont process for making titanium dioxide (TiO2) – useful for turning everything from paint to Oreo cookie filling white – using a secret process that was much more efficient than anything anyone else owned. Walt’s company vacuumed up DuPont documents and hired ex-DuPont employees in the process, and started building a factory in China to use the stolen process. Someone sent DuPont an anonymous letter, and DuPont investigated, ending up in a lawsuit against Walt and his economic pirates.

TiO2170509When Walt was sued, he of course answered the lawsuit, declaring that his group had never “wrongfully obtained or possessed any” DuPont trade secrets related to its TiO2 chloride process or “misappropriated any information from DuPont or any of its locations.” He also told one of his key employees not to reveal the names of other employees not named in the lawsuit, adding that it would not be “good for anybody, not even good for your family” if the employee revealed their names.

At some point, DuPont sic’ced the FBI on Walt, resulting in a federal indictment against Walt, his wife, his associates and his company.

A lot of the case is narrowly focused on the Economic Espionage Act of 1996, which is not terribly relevant to federal criminal law in general. But a few counts in the indictment allege that Walt obstructed justice by lying in the answer to the civil suit, and tampered with witnesses.

no170509A long time ago, a number of federal circuits – bothered by how easy it was to violate 18 USC 1001, which makes it a felony to utter a false statement to federal agents – ginned up a doctrine known as the ‘exculpatory “no”.’ The idea was that if the friendly FBI agent asked you whether you had sold drugs to little Johnny, and you said, “Of course not, he sold them to me, and in fact grew the pot in the field over yonder,” you were in trouble. But if you merely answered the agent’s question by saying, “No, I did not,” you did not violate 1001. Blurting ‘no’ to a law enforcement accusation was considered a “regrettable but human” response that interfered with no government investigation, and was far outside what the statute was intended to do.

The Supreme Court put an end to the “exculpatory ‘no’” doctrine in 1998. But Walter may have paved the way for its revival, albeit in slightly different form.

Last Friday, the 9th Circuit reversed Walt’s conviction for obstruction of justice. Sure, the denial in the civil suit was false, and sure false statements in a civil action undermine the proceeding’s purpose of determining “the truth of what occurred between the parties in a dispute.” Still, the Circuit said, “the better argument is that the statement in defendants’ answer — that they “never misappropriated any information from DuPont or any of its locations” — is tantamount to a general denial of legal liability. While drawing the line between a factual false statement in an answer and such a general denial can be difficult at times, we believe that the statements at issue here tacked too close to a general denial to constitute obstruction of justice.”

tampering1705090Witness tampering – like 18 USC 1001 – is a offense originally enacted for a very good reason, to keep people from threatening harm to others as a means of getting them to lie or not to testify at all. The government has discovered that the charge is a useful tool to wield against defendants for virtually any contact, however ambiguous (or innocuous).

Walt was convicted of witness tampering for telling his employee not to reveal information, because it would not be “good for anybody, not even good for your family.” The 9th Circuit reversed that conviction, too, holding that the evidence of Walt’s statement, “standing alone, was insufficient to prove beyond a reasonable doubt” that Walt intimidated, threatened, or “corruptly persuaded” his employee to prevent his complete testimony in the DuPont civil lawsuit.

The Court said, “viewed in its most damning light… the evidence shows that Liew provided the same advice that many criminal attorneys would in that situation — to not discuss the matter with anyone, and to risk otherwise could have bad effects on one’s family. Sometimes the best advice for a potential criminal defendant is not to talk to anyone about anything, and Liew’s words appear little more than that.”

We confess to having some trouble with that holding. Walt was trying to convince his guy to testify falsely – even by omission – in a civil action. What a criminal defense attorney would advise, where there was just a civil suit going on, is irrelevant. Refusing to name other employees is not a privilege, nothing one could assert a 5th Amendment privilege to prevent divulging.

We don’t see how Walt’s advice was anything less than an invitation to testify falsely. We suspect this holding will come back to bite the 9th Circuit.

United States v. Liew, Case No. 14-10367 (9th Cir., May 5, 2017)

– Thomas L. Root


Pay the Man, Shirley – But It’s Not a Sentence – Update for May 8, 2017

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


For the past 20 years, federal law has required that those convicted of crimes where victims suffer tangible harm pay restitution to those hurt by their conduct.

restitution170508While prosecutors and others of that ilk like to fume that drug offenses – where willing buyers purchase commodities that the government has deemed fit to outlaw from willing sellers – are not victimless, those offenses have thus far been exempted from restitution. But for economic crimes – bank fraud, tax evasion, even where executive misconduct causes a company’s stock price to fall – courts slap defendants with staggering restitution liabilities that affect them long after the sentence is served. Often it’s well deserved, such as where a Ponzi operator has fleeced elderly victims out of life savings. But we have seen cases where the “victims” vehemently denied they were due restitution, but it was ordered anyway.

To defendants, a big restitution judgment may seem like a sentence. It sure did to Zack Dyab. Zack pled guilty in 2010 to a couple of white-collar offenses, wire fraud and money laundering, for which he was sentenced to 10 years and ordered to pay $6.4 million in restitution. Like most people in his position, after his conviction, Zack filed a habeas corpus motion pursuant to 28 USC 2255. And like most people, his 2255 motion failed.

Two years later, the government moved to amend Zack’s restitution to reflect that one of his co-conspirators would be jointly and severally liable for a portion of the obligation, and to update the identities and addresses of some of the people entitled to share in the restitution. Somehow no one served Zack with the government’s motion – a common enough problem for federal inmates, who cannot participate in the federal courts’ electronic filing and service system – and the court issued an amended judgment in due course.

carpe170508Zack did receive a copy of the amended judgment. Being a carpe diem kind of guy, he took the opportunity presented by the amended judgment to file another § 2255 motion, this one claiming his due process rights were violated because he received no notice that the amended judgment was being considered. The district court denied the motion, and last week, the 8th Circuit agreed.

The Circuit held that a § 2255 motion was not the right means of challenging the amended judgment, because § 2255 motions can only be used for claims involving release from custody. Because “a dispute about restitution does not involve a claim of a right to be released from custody,” the Court said, “a prisoner cannot challenge the restitution portion of his sentence under § 2255.”

moneylaundering170508Zack also argued he ought to be allowed to challenge his money-laundering conviction all over again, because that conviction is what led to the restitution order, and there was a fresh judgment on file that he should be able to attack. Noting that “not every change to a judgment results in a new sentence or judgment that wipes clean the slate of post-conviction motions previously filed,” the 8th Circuit disagreed:

We think the district court’s order amending Dyab’s judgment did not result in a new sentence or judgment. There was no substantive proceeding that adjudicated Dyab’s guilt or determined the appropriate punishment. The court did not alter the amount of Dyab’s restitution obligation or otherwise change Dyab’s sanction. The court updated the addresses of certain restitution payees… and reflected that one of Dyab’s co-conspirators… was jointly and severally liable for some of the losses. These actions are not sufficient to create a new sentence or judgment that would permit Dyab to file a successive § 2255 motion.

Dyab v. United States, Case No. 16-1296 (8th Cir., May 4, 2017)

– Thomas L. Root


The Year Without a Summer – Update for May 3, 2017

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


nosummer170503Just a shade more than 200 years ago, a combination of solar, geologic and atmospheric factors resulted in the summer months of 1816 bringing snow to New England in June, lake ice to Pennsylvania in July and August, and frozen corn in September fields. Historians call it “The Year Without a Summer.”

We’re experiencing a regulatory version of that phenomenon this year. Last December, some hopes ran high for the United States Sentencing Commission’s 2017 agenda, with some ambitious proposals in the pipeline for the 2017 amendment cycle. We were not quite so sanguine, but even we foresaw some changes on several sentencing fronts.

And then, the bottom fell out.

noGL170503The terms of Chief Judge Patti B. Saris, Judge Charles R. Breyer and Dabney L. Friedrich, all expired. Because the Commission has to have at least four voting for a quorum, the commissioners who were left – Circuit Judge William H. Pryor, Jr. and Commissioner Rachel E. Barkow – could not conduct any business.

The nominations of Judges Breyer and Reeves were stalled last Congress. In January, outgoing President Obama renominated them. The Senate finally approved two new members on March 21st.

But according to Judge Pryor, that was too little, too late:

By statute, the Commission is required to submit any amendments to the guidelines to Congress by May 1st for a 180-day congressional review period. Because we did not have a voting quorum for almost three months, there simply is not enough time for us to schedule a public hearing on the proposed amendments, digest the public comment, deliberate, and hold a public vote by the statutory deadline. Therefore, this year we will not promulgate any amendments to the guidelines.

In its 29-year history, the Commission has missed issuing amendments in only twice, in 1996 and 1999.

As for the draft amendments considered last December, Judge Pryor optimistically says that the Commission’s “data analysis, legal research, and public comment on these proposed amendments should provide us a sound basis for considering guideline amendments as early as possible during the next amendment cycle.”

– Thomas L. Root


You Pay Your Money and You Take Your Chance – Update for May 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.


With 97% of federal defendants entering guilty pleas, you’d think that law students aspiring to federal criminal defense work (that is, if any law student actually selects that as a career option) would take classes in plea negotiation even before studying evidence, criminal procedure or appellate advocacy.

pasdedeux170502To be sure, plea agreement negotiation is an art form, sort of akin to detailed choreography that has great implications for defendants, implications often never fully appreciated until much later. The change-of-plea hearing itself is a pas-de-deux for defendant and judge, with almost every question being scripted by Rule 11(b) of the Federal Rules of Criminal Procedure – and almost every answer being a trap for the unwary.

It’s little wonder the Supreme Court has held that the 6th Amendment’s right to effective legal counsel extends to negotiating and signing the plea agreement.

Gilbert Spiller was a man without a lot of choices. He was busted in Chicago for selling 121 grams of crack to a police informant, and then compounding his miscalculation by later selling the same guy a loaded .40 caliber pistol so the buyer – a convicted felon – could use it to protect his own drug trafficking operation. Gil was sort of a poster boy for what’s wrong with the Windy City.

Gil, a man with three prior drug felonies, was pretty much in a corner. The federal drug trafficking statute – 21 USC 841 – is a spaghetti bowl of “if-thens.” If the amount of drugs sold exceed x, then the minimum sentence becomes y. If the defendant has x number of prior drug felonies, then the minimum sentence is y, but if the number of prior felonies is x+1, then the minimum sentence is 2y. If death or serious injury resulted from the drug sales, then the minimum sentence is z. In Gil’s case, the amount of drugs he sold would have given him a mandatory minimum sentence of five years, but his prior felonies bumped it to double that.

pleading170502When the government intends to enhance a 21 USC 841 sentence, it has to provide a notice complying with 21 USC 851. In defendant parlance, someone receiving such an enhanced sentence has been “851’d.” Gil got 851’d right away, even before the government’s plea offer arrived on his lawyer’s email.

The government proposed that Gil would plead to a drug distribution count, and admit that the conduct underlying the remaining counts was relevant for sentencing purposes. He also had to stipulate to the government’s Guidelines calculation, including a Guidelines “career offender” enhancement that would send the sentencing range into the stratosphere.

Gil’s defense attorney was puzzled by the offer. Gil would be giving up his right to appeal or argue Guidelines enhancements at sentencing, and for what? We see this in many plea agreements: the defendant give up rights in exchange for vapor, getting nothing that he could not have gotten simply by pleading guilty without the agreement (called a “blind plea”). After all, a defendant does not have to have an agreement in order to plead guilty, and sometimes, no plea agreement might be a wise idea.

Gil clearly wondered what was in the deal for him, as did his attorney. She wrote back:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what exactly does he gain if he proceeds by plea agreement, as opposed to a blind plea. Is the government withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

In an uncharacteristic flash of candor, the Assistant U.S. Attorney responded:

The government is not withdrawing the 851 notice. You ask a good question, and I admit that the plea agreement does not offer a whole lot beyond a blind plea. There are a few minor benefits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is entitled to acceptance of responsibility.

forme170502Gil rejected the government’s proposed plea agreement and instead entered a blind plea, pleading guilty to all three counts and reserving his right to argue his sentence and appeal. His sentencing range was 262-327 months. At sentencing, his lawyer pointed to his troubled upbringing, asking for 120 months. The court sentenced Gil to 240 months.

Once ensconced in prison, Gil became afflicted with buyer’s remorse. He filed a 28 USC 2255 motion, arguing his lawyer had been constitutionally ineffective by counseling him to execute a blind plea rather than taking the government’s proposed plea agreement. The district court denied the motion.

Last week, the 7th Circuit upheld the denial. To win, Gil had to show his lawyer’s performance fell below an objective standard of reasonableness, and that there was a reasonable chance that, but for those errors, his sentence would have been different.

The Circuit said that a reasonably competent lawyer would have tried to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing him to plead guilty. That, the Court said, was just what Gil’s lawyer did. She discussed the proposed plea agreement with him and conveyed Gil’s questions (and hers) to the government. She concluded that Gil would be better off rejecting the offer and pleading blindly.

remorse170502In fact, she went one better that most attorneys. She drafted an 11-page plea declaration illustrating the understanding of the relevant facts and law underlying the case that she and Gil had reached, which she had Gil sign. In the document, which was filed with the district court, Gil acknowledged he had read the indictment and the document he was signing, and had gone over the whole thing with his attorney. (This, in our experience, is an unusual but prudent practice: it both ensures the defendant knows what is happening and protects the lawyer from “buyer’s remorse” proceedings such as Gil’s 2255 motion).

Gil admitted in his 2255 motion that his attorney believed it was worth it to reserve his right to challenge the government’s Guidelines calculation — a right he would have sacrificed by signing the plea agreement — and believed she could get him a “better sentence.” The Court said her decision “sounds in strategy rather than in emotion, and a strategic decision, even if clearly wrong in retrospect, cannot sup-port a claim that counsel’s conduct was deficient.”

endof170502The Circuit observed that a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to re-construct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” This is especially true in the plea-bargaining context, the Court said, citing “the many uncertain-ties surrounding the difficult decision of whether to plead guilty.”

The 7th concluded that the district court had “a sufficient basis in the record to characterize counsel’s decision as strategic: Her email, Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentiary hearing.”

Spiller v. United States, Case No. 15-2889 (7th Cir., Apr. 28, 2017)

– Thomas L. Root


Cleaning Up Our Messy Desk – Update for Monday, May 1, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues. Today, we feature a number of short reports we included in our newsletter this week, but have not posted on the Web.


Fewer federal prosecutions and lighter drug sentences over the past few years has resulted in a 14% drop in the BOP prison population, according to statistics from the U.S. Courts, the Sentencing Commission and the Federal Bureau of Prisons released last week.

abandonprison170501BOP population fell from a peak of 219,300 inmates in 2013 to 188,800 in April 2017. The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking offenses in recent years. As a result, BOP facilities overcrowding has fallen from 37% to 13%.

Because drug crimes account for nearly a third of all federal prosecutions, changes in drug sentences over the past decade have had a substantial impact on BOP numbers.

Administrative Office of U.S. Courts, Policy Shifts Reduce Federal Prison Population (Apr. 25, 2017)


Attorney General Jeffrey Sessions pulled the plug on the National Commission on Forensic Science, a group formed to improve forensic science and expert testimony in criminal cases, early last month.

science170501For years, scientists and defense attorneys have fought an uphill battle to bring scientific rigor to expert testimony and analyses regularly used in courtrooms — such evidence as bite marks, hair, and bullet striations — to convict defendants. The generally accepted “bite mark” science was recently found to be phony, and other methods, including fingerprint analysis, have been criticized as being less rigorous and more subjective than AUSAs, expert witnesses, and popular culture let on.

A 2015 FBI review of 268 trial transcripts in which microscopic hair analysis was used to incriminate a defendant found bureau experts submitted scientifically invalid testimony 95% of the time. No court has banned bite mark evidence despite a consensus among scientists that the discipline is not objective.

Until Sessions disbanded it, the NCFS was the most important group pushing forensics in the direction of science.

A new Justice Department Task Force on Crime Reduction and Public Safety, set up by presidential order three months ago to “support law enforcement” and “restore public safety,” will now oversee forensic science.

Mother Jones, Jeff Sessions wants courts to rely less on science and more on “science” (Apr. 24, 2017)


The 8th Circuit last week ruled that the Arkansas residential burglary statute (Ark. Code Ann. Sec. 5-39-201(a)(1)) does not count as generic burglary, and therefore is not a predicate offense for sentencing under the Armed Career Criminal Act. Arkansas law defines a “residential occupiable structure” to include a vehicle, building, or other structure in which any person lives or is customarily used for overnight accommodations.

carhome170501The Circuit said that under United States v. Mathis, “vehicle, building or other structure” described means and not elements. The Circuits are split 2-2 so far on the question of whether a vehicle used as living space falls under generic burglary, but the 8th Circuit said “without question, the statute, viewed as a whole, encompasses a broader range of conduct than generic burglary…” Thus, the burglary does not count for ACCA purposes.

United States v. Sims, Case No. 16-1233 (8th Cir. Apr. 27, 2017)


The 6th Circuit, which held in 2010 that it has no jurisdiction to review a district judge’s refusal to lower the sentence of a prisoner who is eligible for a reduction under 18 USC 3582(c)(2), just got a little lonelier last week, as the 3rd Circuit followed the lead four other circuits in holding it has jurisdiction to review whether a district court’s refusal to reduce an eligible sentence under the statute is substantively reasonable.

juris170501Jose Rodriguez qualified for a 2-level reduction of sentence, but his district judge held Jose’s threat to public safety and post-sentencing conduct – due to the “vast drug trafficking conspiracy and a series of violent, armed robberies” in which he had engaged – were reasons to deny any reduction. The government argued the 3rd Circuit had no jurisdiction to review the district court’s decision, but the Circuit held that under 28 USC 1291 and 18 USC 3742, it always had jurisdiction to review the substantive reasonableness of a 3582(c)(2) sentence reduction decision.

Back in 2010, the 6th Circuit held that as long as a district court found the prisoner eligible for a sentence reduction, a court of appeals had no jurisdiction to review the district judge’s decision as to whether the prisoner should get the whole, a part, or none of the reduction. Since the 6th Circuit decision, the 7th, 8th, 9th and 10th Circuits have gone the other way, and last week the 3rd Circuit joined.

The decision did not help Jose much. Reviewing the sentence, the Circuit held the district judge’s refusal to give him even as much as a month off on his sentence was substantively reasonable.

United States v. Rodriguez, Case No. 16-3232 (Apr. 28, 2017)


A major hurdle inmates have to clear in bringing lawsuits for constitutional rights violations is to show that the prison officials they sue do not have qualified immunity. Unless the inmate can show that the officials violated a clearly established constitutional right, the Bivens action or 42 USC 1983 action gets tossed out.

A lot of what you might think is clearly established is not. That’s why the 4th Circuit’s decision last week was a breath of fresh air.

Pat Booker, an inmate in a South Carolina prison, filed a grievance objected to the prison’s tampering with his legal mail, and said he intended to pursue civil and criminal remedies if he found his mail meddled with again. The head of the mailroom wrote a disciplinary report on Booker saying he had threatened her. At Booker’s disciplinary hearing, he was found not guilty because he had made “legal threats” against the employee, not physical threats.

Pat sued under 42 USC 1983, arguing the employee had retaliated against him for his exercising his 1st Amendment rights. The district court dismissed, holding the prison employee was protected by qualified immunity, because a “prison inmate’s free speech right to submit internal grievances” was not clearly established by the U.S. Supreme Court of the United States, the 4th Circuit or the South Carolina Supreme Court.

The Circuit reversed, saying it had long held that prison officials may not retaliate against prisoners for exercising their right to access the courts, and “given the close relationship between an inmate filing a grievance and filing a lawsuit — indeed, the former is generally a prerequisite for the latter — our jurisprudence provided a strong signal that officials may not retaliate against inmates for filing grievances.” Seven other circuits have a recognized in published decisions that inmates possess a right, grounded in the First Amendment’s Petition Clause, to be free from retaliation in response to filing a prison grievance.

“Given the decisions from nearly every court of appeals,” the 4th said, “we are compelled to conclude that Booker’s right to file a prison grievance free from retaliation was clearly established under the First Amendment. Consistent with fundamental constitutional principles and common sense, these courts have had little difficulty concluding that prison officials violate the First Amendment by retaliating against inmates for filing grievances.”

Booker v. South Carolina Department Of Corrections, Case No. 15-7679 (4th Cir. Apr. 28, 2017)

– Thomas L. Root


11th Circuit Says Perfect is the Enemy of the Good – Update for April 28, 2017

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


ravel170428It’s an article of faith among federal prisoners seeking to attack their convictions or sentences that all they need to find is one flaw, a loose thread in their prosecution that they can pluck, and the whole thing can ravel from a finely constructed conviction into a big pile of nothing.

For those latecomers to the world of law and order, we give you Judge Ed Carnes of the 11th Circuit, who began a 281-page decision handed down this week with the observation that

Because it is a document designed to govern imperfect people, the Constitution does not demand perfect trials and errors do not necessarily require the reversal of a conviction. More than thirty years ago, the Supreme Court reminded us: “As we have stressed on more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”

The case was a seamy one. A jury convicted the defendant of five sex-related crimes involving minors. His appeal focused on one issue: After the lunch break on the third day of the six-day trial, defense counsel returned late. Apparently, no one noticed his absence, so questioning of one of the 13 government witnesses continued. Counsel missed seven minutes of 31.4 hours of actual trial time, equaling 18 out of a total of about 2,745 answers given by government witnesses during the trial. What little testimony counsel missed was repeated in even more detail by the same witness after counsel returned to the courtroom.

sleeping170428In his 2014 appeal, the defendant convinced two out of three judges that his 6th Amendment right to the “Assistance of Counsel for his defence” were violated, based on the Supreme Court decision in United States v. Cronic. The Cronic Court concluded “that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Cronic presumed a defendant was prejudiced by such a denial, without the need for the defendant to show that if he had not been denied counsel, the outcome might have been better for him.

Unfortunately for the defendant, enough of the active judges on the 11th Circuit bench were troubled by the panel decision that they voted to rehear the case en banc. On Wednesday, they held that perfection in trials – as in life – is the enemy of the good.

perfect170428A majority of the en banc judges agreed that it was “a violation of the Sixth Amendment for inculpatory testimony to be taken from a government witness without the presence of at least one of the defendant’s counsel, regardless of whether the judge or the AUSA noticed that counsel was not there.” But the rub was this: unlike Cronic, the Circuit held that it would not automatically reverse for the denial. Rather, it said that “the harmless error rule is applicable to this brief absence of counsel from the courtroom, and that the absence was harmless beyond a reasonable doubt in this case. “

The 11th Circuit had previously held that the absence of defense counsel while government witnesses gave testimony that did not directly inculpate the defendant was not Cronic error. Now, the Circuit has gone a bit further, holding that absence of defense counsel during testimony that implicates the defendant is not presumed to be prejudicial if the absence is not for a “substantial portion” of the trial.

And what is “substantial?” The en banc Court cobbled together a four-part test, borrowing from a 4th Circuit case about a sleeping lawyer and adding its own gloss to the factors: (1) the length of time missed, (2) proportion of trial missed, (3) significance of the missed portion, and (4) whether the specific part of the trial that counsel missed is known or can be determined.

Using its newly devised test, the Circuit concluded that the portion of the trial missed was not substantial. Because it was not substantial, prejudice is not presumed, but instead, the Court examines whether the error was harmless. The reasoning seems somewhat circular to us. If the part of the trial missed was “significant” it would seem that the defendant was probably prejudiced. An observer could be forgiven for concluding that the Court said that if the defendant was prejudiced, then prejudiced is presumed. If he or she was not prejudiced, then the lawyer’s absence will be subject to a test for prejudice.

We’re not alone at being puzzled by the decision. Over half of the 281 pages are devoted to four concurring and three dissenting opinions.

knowit170428It’s hard to gin up any sympathy for the defendant, who was found guilty of some horrendous crimes (for which he got life in prison) and who could cite no harm that flowed from his attorney missing fewer than one-tenth of a percent of the answers, almost all of which were repeated. But hard cases make bad law, and the Circuit’s four-part “test” does not seem to be that far from Justice Potter Stewart’s test for hard-core pornography from Jacobellis v. Ohio:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…

United States v. Roy, Case No. 12-15093 (Apr. 26, 2017)

– Thomas L. Root


Investigation Drives Strategy, Not the Other Way Around – Update for April 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.


We’re only nine days from the 143rd running of the Kentucky Derby, one of three times in the year when average Americans pretend to be interested in horse racing. Today, we’re remembering Derby great Old Rosebud.

rosebud170427You don’t recall? Old Rosebud won the 40th running of the Derby in 1914 by eight lengths, a tie for the biggest margin of victory in Derby history. We’re reminded of that by today’s case, a habeas corpus appeal of a 28 USC 2254 ruling from California.

If grounds for habeas corpus actions were horses, ineffective assistance of counsel would be Old Rosebud. The 6th Amendment does not entitle criminal defendants to legal counsel at trial, it entitles them to effective legal counsel. A defendant is not entitled to Perry Mason. But then, he or she is not to be saddled with Vinny Gambini, either.

vinnie170427Ineffective assistance of counsel is far and away the most claimed constitutional defect in the world of post-conviction remedies. Despite (or maybe because) the ineffective assistance of counsel claim is so well used, courts look at such claims with a gimlet eye. A successful claimant has to show, first, that his or her lawyer screwed up, that is, did something or failed to do something that a lawyer of average skill would not have done or omitted. And that’s the easier of the standards. The claimant then has to show that except for the screwup, there is a reasonable probability that things would have turned out differently.

That second standard is called “prejudice.” It’s not prejudice in the classic sense, but rather means that the screwup somehow worked to the defendant’s detriment. This necessarily means that how close the case was matters. We see the problem often. The habeas petitioner tells us that her attorney failed to call a witness who would have said she was 20 miles away from the convenience store at the time it was robbed. If the only evidence is a grainy video of someone the same height as the defendant wearing sunglasses and a black hoodie and a clerk who says he thinks the defendant was the robber, a lawyer’s failure to call an alibi witness is pretty significant.

Unfortunately, however, there was a busload of nuns parked outside of the convenience store, and all of the sisters saw the defendant leave the 7-11 with a bag of swag, and then take off the glasses and hoodie to take a selfie in front of the store. All of a sudden, a single alibi witness is pretty unlikely to have changed the outcome.

nuns170427Courts don’t like to second-guess defense attorneys. Over the years, the rule has evolved that if the lawyer investigated the evidence and witnesses, and then chooses a strategy, the courts will seldom question that strategy. In our example, the lawyer read the discovery, talked to a few of the nuns, and quickly concluded that an alibi defense would look phony. He instead decided that since his client was known as “Mushmouth Marianne,” his better defense was to argue the clerk misunderstood her. She was there to pick up the garbage, but when she said, “Give me all your trash,” the clerk thought she said, “Give me all your cash.” And inasmuch as it was a sunny, clod day, a hoodie and sunglasses made perfect sense.

Pretty weak, but the lawyer investigated the evidence and picked a strategy based on what looked the most promising. Courts do not tend to Monday-morning quarterback decisions like that. But occasionally courts need to be reminded that reasonable investigation is what leads to development of strategy. It cannot be the other way around.

Consider what happened to poor, simple teenager Sarah Weeden. She was convicted in California of felony murder and sentenced to 29-to-life for her role in a bungled robbery. It turns out that while 14-year old Sarah was not present at the scene of the crime, she had some involvement in making the robbery happen.

psy170427Weeden’s entire defense at trial consisted four character witnesses, who generally are people least likely to sway a jury. Although there was plenty of evidence that Sarah had heard about the robbery plans and helped lure the marks – some boys she had met earlier – to a park where the robbery occurred (and the robber’s gun discharged accidentally, killing one of the victims), all her attorney presented was the testimony of four character witnesses who said Sarah was not the kind of girl to who would plan a robbery. Sarah’s attorney did not get her evaluated by a psychologist or present expert testimony about the effect of her youthfulness on her mental state.

With a new lawyer, Sarah brought a habeas corpus motion claiming her trial counsel was ineffective for failing to investigate psychological evidence. She submitted a report from a psychologist concluding that “it is extremely unlikely Sarah would intend to commit robbery or knowingly participate in one,” and “she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated.” The report found Sarah to “quite passive and vulnerable to being manipulated by others,” and concluded she had “serious cognitive deficits (for example, 91% of people her age function[ed] intellectually at a higher level),” “well below average language skills,” and “a strong tendency to miss important environmental cues.”

Sarah’s lawyer defended his decision, claiming he did not obtain a psych evaluation of his client because “regardless of what the doctor would have concluded, it would be inconsistent with the defense that I was putting forth.” Counsel also speculated the prosecution might have used the results of an examination against her. The state court concluded that defense counsel’s failure to obtain a psychological examination was a “sound tactical decision.” State appellate courts agreed, as did a federal district court.

Last week, the 9th Circuit took a very different view.

PPP170427The Circuit complained that the state courts’ conclusions that Sarah’s attorney made a “reasonable decision” because counsel feared that the results of an expert evaluation might undermine his trial strategy “puts the cart before the horse.” The Court said, “Counsel cannot justify a failure to investigate simply by invoking strategy…. counsel’s investigation must determine trial strategy, not the other way around.” Sarah’s counsel could not have reasonably concluded that a psychological examination would conflict with his trial strategy without first knowing what such an examination would reveal. Besides, the Circuit pointed out, defense counsel’s conclusion that the prosecution could have used the results of an examination against Sarah was nonsense: a defendant must disclose expert reports she intends to rely on at trial, but if the evaluation was not helpful, counsel could decide not to use it, and thus not produce it.

“The correct inquiry,” the 9th said, “is not whether psychological evidence would have supported a preconceived trial strategy, but whether Weeden’s counsel had a duty to investigate such evidence in order to form a trial strategy, considering all the circumstances…. The answer is yes.” The State’s felony murder theory required proof that Sarah had specific intent to commit the robbery, so her “mental condition was an essential factor in deciding whether she actually had the required mental states for the crime.”

But did the mistake prejudice Sarah? The appellate panel said it did. Sarah’s psychologist concluded that “it is extremely unlikely she would intend to commit robbery or knowingly participate in one, that she would probably be slow to understand that a robbery was being considered by others if their intentions were not clearly articulated, and that she was “quite passive and vulnerable to being manipulated by others.” This testimony from a qualified expert would have added an entirely new dimension to the jury’s assessment” of the critical issue of Sarah’s mens rea.

Weeden v. Johnson, Case No. 14-17366 (9th Cir., Apr. 21, 2017)

– Thomas L. Root


Government’s FOIA Practice Get a “CREW Cut” – Update for April 24, 2017

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


For those contesting constitutional infirmities in their convictions, nothing succeeds like facts. Prisoners representing themselves can recite precedent, circuit court bloviations and legal mumbo-jumbo ad nauseum, but none of it advances their cause unless they have facts – beautiful, concrete, sharp-edged, pulsating facts – to support their claims.

Blanche Dubois always depended on the kindness of strangers, but pro se litigants that such dependence is not a strategy (at least not a winning one). Usually, the only tool in a prisoner’s investigative toolbox is the Freedom of Information Act.

stanley170424There may be no federal statute that suffers a wider chasm between principle and operation. The government loves to call FOIA “the law that keeps citizens in the know about their government.” There is a “presumption of openness” underlying FOIA: agencies The FOIA provides that when processing requests, agencies proclaim that their guiding light is to “withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.”

We don’t need to recite our prior disillusion and disgust with agency management of FOIA requests. You can read here about how “the most transparent Administration in history” sandbagged FOIA for the last 8 years (and if you think the current Administration will do better, join the other three such believers over there in the corner – Santa Claus, the Easter Bunny and the Tooth Fairy).

santa170424It’s ironic that last week’s FOIA decision from the D.C. Circuit concerned records that related in part to former House Speaker Tom DeLay, because “delay” was the primary defense played by the Department of Justice.

Thirteen years ago, the FBI opened a public corruption investigation into the activities of then-lobbyist Jack Abramoff. Ultimately, 21 people pled guilty or were convicted of offenses related to an influence-peddling racket. Two of those convicted had been senior aides to former House Majority Leader Tom DeLay. The FBI never indicated whether DeLay himself was a subject of the investigation, but in August 2010, DeLay himself announced DOJ had informed him he would not be charged.

A D.C. advocacy outfit named Citizens for Responsibility and Ethics in Washington – which is a nonpartisan do-gooder group or a left-wing attack dog in mufti (choose whatever floats your political boat) – filed an FOIA request in 2010 to get records about DeLay’s involvement in the investigation. DOJ managed to stretch the request into a lawsuit – including as 2014 trip to the Court of Appeals – without ever providing much of substance.

Initially, DOJ refused to provide any requested documents because they “involved third parties, they were generally exempt from disclosure and could not be released absent express authorization from each third party, proof of the third party’s death or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. CREW sued, and DOJ argued that all responsive documents were categorically exempt under FOIA Exemptions 3, 6, 7(A), 7(C), 7(D) and 7(E).

The District Court agreed. But on appeal, the D.C. Circuit reversed, holding that DOJ had “not met its burden to justify categorical withholding under Exemption 7(A) or 7(C)” and had not “provided sufficient detail at this stage for a court to determine whether a portion of the requested records may be withheld under Exemption 3, 7(D) or 7(E).”

Is this the FBI response to CREW?

DOJ’s job on remand was to “make a more particularized showing as to what documents or portions thereof are exempt.” The FBI found of 328 pages of responsive material, 124 pages of which were released to CREW, although with redactions. The FBI withheld in full the remaining 204 pages. To justify its redactions and withholding, the FBI invoked FOIA Exemptions 3, 5, 6, 7(C), 7(D) and 7(E). Again, the District Court said, “good enough,” and threw out the CREW suit.

CREW appealed, arguing that the agency could not trot out a new Exemption 5 argument it had not used before, and that it cannot simply redact all the names in the documents other than DeLay and Abramoff on the basis of privacy.

The D.C. Circuit agreed. First, the Court said, in FOIA cases the government generally “must assert all exemptions at the same time, in the original district court proceedings.” There are only two exceptions, first when “pure human error” resulted in not raising the correct exemption earlier, and second “where a substantial change in the factual context of the case or an interim development in the applicable law forces the government to invoke an exemption after the original district court proceedings have concluded.”

foia160328DOJ did not claim either exception applied, but instead just said that because it raised Exemption 5 – which covers “inter-agency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency” – in connection with another document, it was not engaged in “gamesmanship.” The Court said that did not matter: “The timeliness rule is concerned not just with efficiency in a given case, but also with efficiency in the long run, and it disserves this broader goal to permit untimely defenses, even after they have been argued, to prevail… [The] timeliness rule does not require a finding of bad faith or intentional gamesmanship.”

FOIA Exemption 6 encompasses “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Exemption 7(C) protects “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information… could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

DOJ argued that revealing the names of others, some of whom were not indicted and some of whom were just witnesses and interviewees, would constitute an unwarranted invasion of privacy. CREW argued that some of the names of witnesses and subjects had already been made public in press releases and court documents, and that their privacy interests were lessened.

foia160930This kerfluffle illustrates the problem with FOIA litigation. It is hard for a requester to argue that information it has been denied should not be exempt, because without knowing what the information is, how can one argue whether it does or does not fit an exemption? The agencies love to make blanket arguments – all redacted names should be private, for example – and they often win cases on summary judgment with such claims.

Not today. The Circuit ruled that there are just too many moving parts to an Exemption 7(C) argument for summary judgment:

Because the myriad of considerations involved in the Exemption 7(C) balance defy rigid compartmentalization, per se rules of nondisclosure based upon the type of document requested, the type of individual involved, or the type of activity inquired into, are generally disfavored. The privacy interests of individuals who have not been convicted in connection with this investigation – and even more so those who have not been publicly linked with the investigation whatsoever – differ greatly from those of individuals who were convicted or pled guilty for their roles. Connecting the names of individuals to information contained in the documents at issue could add much, or not at all, to the public’s understanding of how the Government carried out its investigation and decision not to prosecute DeLay. There is little we can conclude in the abstract. This area is simply not well suited to categorical determinations.

CREW thus lives to fight another day. On remand to the District Court, DOJ must show the withholding of information under Exemptions 6 and 7(C) are based on “a particularized weighing of the public and privacy interests that would be implicated by the disclosure sought by CREW… The Government must account for the privacy interests at stake, recognizing that previous disclosures or admissions may have diminished those interests.

Citizens For Responsibility And Ethics In Washington v. United States Department of Justice, Case No. 16-5138 (D.C. Cir., Apr. 21, 2017)

– Thomas L. Root


A Couple of Sentencing Tidbits from Washington – Update for April 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.


We’ve been hearing since last year that leadership in the House and Senate intend to resurrect the Sentence Reform and Corrections Act of 2015 in some form this year. But – like the weather – everyone seems to talk about it, but no one is doing anything about it.

Thus far this legislative year, as we’ve noted, there has been a dearth of criminal justice reform legislation introduced in Congress. A report released yesterday by the Brennan Center for Justice at New York University may hint at why.

Waiting170421On the subject of sentence reform, the Report notes that in January 2017, Sen. Charles Grassley (R-Iowa), chair of the Senate Justice Committee, and House Speaker Paul Ryan (R-Wisconsin) committed to reintroduce some version of the failed SRCA. However, the Report says, both Ryan and Grassley “are rumored to be waiting for the administration to announce its position before moving forward.”

Rumors flew in March, when President Trump’s son-in-law and advisor Jared Kushner met with Grassley and Sen. Dick Durbin (D-Illinois) – the top-ranking Democrat on the Committee, to discuss sentencing and reentry legislation. Kushner, whose father did federal time for white-collar offenses, has more reason than most to favor federal sentencing reform, and reports say that he does.

The Brennan Report says, “Trump’s personal positions on such bills are unknown. It remains to be seen whether any advice from Kushner and backing by conservative reform advocates will influence the President. Some conservatives support expanding reentry services, and modest sentencing reductions for low-level offenders. The Trump Administration could take a similar stance, backing modest prison reform in Congress while continuing to pursue aggressive new prosecution strategies.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

Elsewhere in the Report, the Brennan Center predicts that “recommendations for more punitive immigration, drug, and policing actions” will flow from the Administration over the next few months. It notes that a crime task force established by Attorney General Jeffrey Sessions is scheduled to deliver its first report by July 27. The Center foresees the task force calling for “a rescission of Obama-era memos on prosecutorial discretion, which helped decrease the federal prison population, and diverted low-level drug offenders away from incarceration.”

Brennan Center for Criminal Justice, Criminal Justice in President Trump’s First 100 Days (April 20, 2017)

– Thomas L. Root



We watched with some glee a year ago when the U.S. Sentencing Commission horse-shedded the BOP over that agency’s chary use of compassionate release. It was fun while it lasted, but it didn’t last very long.

compas160418“Compassionate release,” a provision enshrined in 18 USC § 3582(c)(1), was enacted by Congress in the Sentencing Reform Act of 1984. Besides replacing the prior sentencing regime with the Guidelines, the Act strictly limited the ability of federal courts to revisit sentences once they became final (that is, the time for appellate review expired). Parole was eliminated, with sentences to be served fully (with an allowance of about 14% for good conduct in prison).

One safety valve crafted into the Act by Congress was to give courts the ability to modify or terminate sentences if prisoners were able to show “extraordinary and compelling” reasons justifying early release. Congress tasked the Sentencing Commission with the job of identifying the criteria to be used in determining whether a reason was “extraordinary and compelling.” The statute delegated BOP with the task of identifying prisoners who met these criteria. The idea was that the BOP would identify who qualified, and then petition the district court for grant of compassionate release. The district judge would make the final determination.

The entire process was considered by Congress to be an act of grace. Inmates have no right to petition the court directly under 18 USC 3582(c)(1). They may not seek judicial review of a BOP refusal to recommend release. They may not appeal a district court’s denial of compassionate release. This means the power to free a prisoner is placed in the hands of the jailer whose job it is to keep him locked up, who incidentally is represented by the prosecutor – the US Attorney – whose job it is to lock up federal criminal offenders.

So how does the system work? We’ll let the numbers speak. In 2015, out of about 205,000 federal inmates, the BOP found extraordinary and compelling circumstances justifying compassionate release only 62 times. That works out to 0.03% (or about 3 prisoners out of every 10,000). Those odds stink. It’s hard to believe that so few prisoners qualify for compassionate release.

table170421The BOP’s stinginess has drawn fire from the Sentencing Commission. At the April 2016 hearing we noted above, commissioners complained that the BOP had adopted its own definition of “extraordinary and compelling.” The criteria the Commission adopted directed the BOP to confine itself to determining if a prisoner meets the criteria the Sentencing Commission adopted, and – if so – bringing a motion for reduction in sentence to the district court.

BOP’s management of compassionate release is no different than a district judge deciding that she would adopt her own definition of “career offender,” no matter what the Sentencing Commission might say in Chapter 4B of the Guidelines.

compassion160124In an article published this week by Learn Liberty, Mary Price – general counsel to Families Against Mandatory Minimums – cited cases where even the most slam-dunk compassionate release cases took over a year for the BOP to process. She noted that the BOP was hurting itself as well as the affected inmates: compassionate release of elderly and infirm inmates makes economic as well as social sense, and saves the BOP from caring for the most expensive and least dangerous of its inmates.

Ms. Price wrote that

if the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases… in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

Institute for Humane Studies, George Mason University, Mary Price, How the Bureau of Prisons locked down “compassionate release” (Apr. 18, 2017)

– Thomas L. Root


2nd Circuit Holds “In Guidelines” Sentence to be Unreasonable – Update for April 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.


We have to begin, as always, with our usual disclaimer: child pornography is odious. The creation of it has a terrible impact on the children forced into such conduct. And of course, we – like the overwhelming majority of people – are repulsed by child porn itself. Even reading details of it in appellate court decisions often has us getting up frequently to wash our hands.

childporn170420As a result, there is hardly a crime easier to demagogue than child pornography. Congress has juiced the kiddie porn sentencing guidelines repeatedly, because – after all – who could object to hammering depraved people who looked at kiddie porn with what are effectively life sentences? Certainly not legislators. And can you imagine a senator or House member who voted against dictating guideline levels to the Sentencing Commission (who is expert in sentencing matters)? Any challenger at reelection time is going to point at the unfortunate solon and shout, “My opponent voted to let child molesters out of prison early!!!”

pork170420It’s the kind of thing (along with eating one too many pork-chops-on-a-stick) that will keep a politician awake at night.

Seven years ago, the U.S. Court of Appeals fired the first warning shot at the child porn guidelines in United States v. Dorvee. After reviewing in detail the politically-charged and commonsense-challenged history of the child pornography guideline, the Court “encouraged” district judges “to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

shot170420Last Monday, the 2nd Circuit revisited the question, and in a remarkable decision – a real shot across the bow for the child pornography Guidelines – held that a child porn sentence that fell within the calculated Guidelines range was nevertheless substantively unreasonable. And it did so even where the defendant was rather unsympathetic.

To our knowledge, no court has ever before held that a within-range Guidelines sentence was substantively unreasonable. That alone makes today’s decision a remarkable case.

Joe Jenkins – a man with no prior criminal conduct – was on his way to Canada to meet his parents for a family vacation. When Joe crossed into Canada, Canadian customs people thought he was acting squirrely, and so they inspected his laptop and a couple of thumb drives he had with him. They found a lot of kiddie porn.

Joe was charged in Canada, but – being released on bail – he beat feet back to the US. The Mounties, deciding that getting mad was not as rewarding as getting even, asked US Homeland Security whether they might be interested in Joe’s collection. They were. Joe was charged with a count of possession of child porn, and another of transportation of such porn across state lines.

bound170420At trial, Joe was obstreperous, sharp-tongued and uncooperative. He was convicted, and the court figured his Guidelines as 210-240 months. Joe was sentenced to 120 months for possession, the statutory maximum. On the transportation count, he got a concurrent sentence of 225 months, with a supervised release term of 25 years after the sentence ended. The district court thought Joe’s disrespect for the judicial process – not to mention some of the whoppers he told on the stand – suggested he was likely to possess child porn again after he got released.

The 2nd Circuit, in an unprecedented decision, held that Joe’s “in Guidelines” sentence was excessive. Noting that “in view of Jenkins’s age [43], this sentence effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life,” the Court rejected the sentence as violating § 3553(a)’s “parsimony clause,” which instructs a district court to impose a sentence “sufficient, but not greater than necessary,” to achieve § 3553(a)(2)’s goals.

The Court noted that “bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision. Whereas Jenkins’s transportation offense carried a skittyporn170420tatutory maximum of 20 years, the statutory maximum for his possession offense was “only” 10 years. Jenkins was eligible for an additional 10 years’ imprisonment because he was caught with his collection at the Canadian border rather than in his home.” What’s more, the Court said, the Sentencing Commission’s own statistics suggest that Joe’s age makes him much less likely to reoffend after a 10-year prison stint, which is at odds with the district judge’s holding to the contrary.

The Circuit reserved its most withering criticism for the enhancements that applied to Joe’s Guidelines calculations. The four most common include a 2-level increase for use of a computer and another increase for “more than 600 images.” The Court said that in Dorvee,

we noted that four of the sentencing enhancements were so “run-of-the-mill” and “all but inherent to the crime of conviction” that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months” based on an offense level increased from the base level of 22 to 35… The concerns we expressed in Dorvee apply with even more force here and none of them appears to have been considered by the district court. Jenkins received precisely the same “run-of-the-mill” and “all-but-inherent” enhancements that we criticized in Dorvee, resulting in an increase in his offense level from 22 to 35. These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child…

kporn160124The Circuit cited Sentencing Commission stats showing that 96% of child porn possession defendants received the enhancement for an image of a victim under the age of 12, 85% for an image of sadistic or masochistic conduct or other forms of violence, 79% for an offense involving 600 or more images, and 95% for the use of a computer. When nearly everyone qualifies for the enhancement, it ceases being an enhancement and begins being merely a characteristic of the underlying offense.

The 2-1 majority observed that

a sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable. Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest.

The appellate court concluded that “on remand, we are confident that Jenkins will eventually receive a sentence that properly punishes the crimes he committed. But Judge Suddaby, in imposing his sentence, went far overboard.”

United States v. Jenkins, Case No. 14-4295 (2nd Cir., Apr. 17, 2017)

– Thomas L. Root


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