7th Circuit Reverses Drug Convictions for Brady Violations – Update for August 31, 2017

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


hide170831There is perhaps no more pernicious problem in federal criminal justice today (if not criminal justice in general) than the ubiquity of Brady violations.

“Brady,” of course, is derived from Brady v. Maryland, and is the rule that the government has the duty to turn over to the defendant all evidence known to it that may be exculpatory, including not just substantive evidence (like an interview with a busload of nuns who saw the defendant in church 20 miles from the scene of the crime at the time the offense was being committed) but also impeachment evidence (like a secret agreement with a government witness that he’ll be let out of jail if he testifies against the defendant). The nature of the Brady right may have never been explained better than by 7th Circuit Court of Appeals Judge Diane P. Wood, who opened today’s decision with this:

The Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), might seem a bit strange to someone who thought that the adversary system in criminal cases allows each side to adopt a “no holds barred” litigation stance. But that is not the way the Constitution structures criminal procedure. From the Fifth Amendment’s privilege against compulsory self-incrimination, to its double-jeopardy clause, to the rights conferred by the Sixth Amendment both to be informed of the nature and cause of the accusation and to be confronted with witnesses, to the due process right to be convicted only upon proof beyond a reasonable doubt, the system is replete with safeguards for an accused.

The obligation of the prosecution to turn over any favorable evidence to the defendant, first announced in Brady, is one aspect of the due process right.

Criticism of prosecutorial mischief when it comes to revealing exculpatory evidence has grown dramatically in the last few years. From the 3rd Circuit’s tome of Brady violations in Dennis v. Sec’y, DOC, to the 2nd Circuit upholding an $18 million award to a man convicted because of a Brady violation, to the Supreme Court’s wrestling with Brady in last June’s Turner v. United States decision, Brady violations have been hot.

In fact, a Brady issue from the State of Washington led to an unusual judicial squabble in the 9th Circuit when Judge Alex Kozinski blasted state officials for not disciplining errant prosecutors for what he saw as an egregious Brady violation, an aside that drew spirited disagreement from fellow jurists (and was later withdrawn by the Court).

The litany of Brady “hide and seek” abuses – where the government hides evidence and implicitly challenges the defense to find it – has been well chronicled elsewhere in popular media, professional publications and scholarly journals. The costs exacted by Brady violations on the integrity of the process, lives of wrongly-convicted defendants, and on wasted trials and retrials – all because of prosecutorial boneheads – are high. The latest judicial expense laid low by Brady is a long, expensive trial of two drug defendants in Chicago.

Antonio Walter and Kenneth Bell were tried for being heroin supplier kingpins managing an open-air drug mart at various street corners on Chicago’s west side. The case was far from airtight: It rested on evidence that Bell was inexplicably wealthy, on physical samples of heroin seized from organization members, and expert testimony by law enforcement about drug trafficking.

As described by Judge Wood, “conspicuously absent was any direct evidence tying either Walter or Bell to the alleged conspiracy. Because there were no controlled buys or recorded incriminating statements, the government’s case hinged on witness testimony. Seven witnesses identified Walter as a participant in the drug organization; five of them fingered Bell as the drug supplier. The problem was that these witnesses, unsurprisingly for this type of case, were hardly model citizens. Their knowledge of the defendants’ involvement in the organization stemmed from their own participation. All seven had been charged with or convicted of drug crimes, and six of them were testifying pursuant to agreements that held out the possibility of reduced sentences. As the defense was at pains to point out, personal involvement, lengthy criminal histories, and a desire to secure lenient treatment all raised major credibility concerns.”

snitch161004One of the witnesses, a guy named Forrest, testified pursuant to a deal that cut his 30-year sentence by two thirds. He initially offered only lukewarm support for the government’s case. He said that he had seen Walter in the room while heroin was being prepared for sale, but he did not remember Walter’s actively participating. Bell, he said, was rarely present, and he did not recall how often Bell supplied heroin. Unsurprisingly, Forrest’s memory improved markedly after he spoke with the prosecution during a lunch break. After a sandwich and a briefing, Forrest suddenly recalled that Bell dropped off heroin to Walter around three times a month, and that cash from the day’s sales was usually handed over to Walter.

Another witness, Nesbitt, came near the end of the case. He was reticent on the stand, but in the hallway, he told an FBI agent that Forrest was still packaging and selling heroin on the same street corner, this time for a new supplier named “K-Mart.” This directly contradicted Forrest’s testimony that he had given up drug sales while on bond. The agent told the prosecutor what Nesbitt had said, but the prosecutor said nothing to the defense about Nesbitt’s revelations until months after the trial.

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

To succeed on a Brady claim, a defendant has to show that some evidence was suppressed, that it was favorable to the defendant, and it was material to the defense. As is usually the case, everyone agreed the evidence was suppressed and it was favorable. The battle was over whether it was material.

Brady evidence is material if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different. The government argued the evidence was not material because Forrest had already been pretty shown to be a scumbag, and anyway, the rest of its case was so strong that the new evidence would not have mattered.

The Circuit said that “the fact that Forrest is an admitted lifelong drug dealer with at least two controlled-substance convictions (to say nothing of his firearm convictions) does not undermine the incremental value of this impeachment evidence.” The evidence went to whether he was lying on the stand. The Court pointed out that Forrest’s claim that he had given up his drug-dealing ways “would enhance the witness’s credibility with the jury, if one thinks that jurors are more likely to trust a reformed criminal than an active one. Yet the implication is flipped if the redemption story turns out to be a lie.”

nonewfile170831What’s more, the evidence cut to the heart of the case. Nesbitt’s comment revealed that Forrest was selling on behalf of a new supplier named “KMart.” If the jury thought that KMart had taken over this area, and if it further believed that there was room for only one supplier, it might have found that Bell could not have been that person. Nesbitt and Forrest had been selling on those corners before Bell’s arrival, and they continued to sell after Bell’s arrest. While the Court admitted “that is far from conclusive evidence pointing to Bell’s non-involvement… it could have been one piece of a puzzle.

The Circuit warned against employing a “but for” analysis. “We do not need to find, however, that “but for” the failure to disclose Nesbitt’s impeachment evidence, the defendants would not have been convicted. The standard is only whether there is a reasonable probability of a different outcome. We conclude that the evidence meets this standard.”

prosmisconduct170831The Court observed that if the jury had learned of Forrest’s ongoing criminal conduct, “it might have doubted his testimony that he had ‘seen the light.’ Knowing that he was lying under oath about his using and dealing in drugs, the jury might reasonably have supposed that he was lying about the criminal activities of the defendants as well.” While the court conceded that the government still could have the defendants if the defense had been told of Nesbitt’s statement, it said “but the standard, once again, is only a ‘reasonable probability’ that disclosure would have changed the result of the proceeding.”

United States v. Walter, Case No. 16-1325 (7th Cir., Aug. 29, 2017)

– Thomas L. Root

A Little Post-Hoc Factfinding Upends a Sentence Reduction – Update for August 30, 2017

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


kept170830George Stephanopoulos famously defended his former boss, President Bill Clinton, as a guy who had “kept all of the promises he intended to keep.” You could forgive inmates seeking a reduction of sentence under 18 USC 3582(c)(2) for feeling the same way about the Supreme Court.

Not that the Court should get all of the blame. Sec. 3582(c)(2) is one of those limited exceptions to the general rule that when a conviction is final, it is final. Congress designed the exception into the Sentencing Reform Act of 1984, providing that when the Sentencing Commission changed a sentencing guideline after a defendant’s conviction was final and specifically provided that the change should be retroactive to final convictions, an inmate could petition the court to apply the change. The district court could apply it if the effect would be to reduce the sentence, but even then the judge retained discretion whether to apply it or not.

Those are a lot of hoops through which a defendant must jump. Many have succeeded, inasmuch as the Sentencing Commission has reduced drug quantity guidelines three times since 2007. Of course, when prisoners asked for the reduction, they often threw in a lot of extraneous errors, omissions and complaints about their original sentencings that they wanted the judge to fix as well.

brung170830Judges resisted turning a very limited, pointed sentence reduction proceedings into a sentencing mulligan. The issue found its way to the Supreme Court in 2010. There, the Court ruled in Dillon v. United States that the 3582(c)(2) proceeding was a limited resentencing where no factual findings from the first sentencing could be revisited, no new developments could be addressed, and no additional wrongs – old or new – could be redressed. Instead, the district court took the record as it was, except for the new lower guideline, and sentenced according to the newly adjusted guideline range.

All right. Prisoners could live with that. The Supreme Court promised that there would no new fact-finding, but instead the 3582(c)(2) proceeding would run off the record that closed at conviction. Since the Dillon case, the Sentencing Commission made the 2014 2-level reduction in drug offenses retroactive, and almost 30,000 inmates followed the Dillon playbook and received reductions.

One of the people seeking the reduction – although not on the list of 30,000 successful inmates – was Raul Mercado-Moreno. Raul had been convicted of manufacturing and distributing methamphetamine, a lot of it. Exactly how much was the question. At the time, the guidelines’ top range of 38 was reserved for people whose cases involved more than 1.5 kilograms of meth. At Raul’s sentencing, the judge held that Raul had distributed more than 4.3 kilos. The number was not reached with a lot of precision, because it did not much matter: with the bottom of his range being 1.5 kilos and the top of the range being infinity, a rough number seemed good enough.

Rough or not, the 4.3 kilos was the record finding when Raul was sentenced, and he was confident it would continue to be the record finding for his 3582(c)(2) motion.

But the 2014 reduction in drug quantities changed the equation. Now, Offense Level 38 was reserved for more than 4.5 kilos of actual methamphetamine or more. The range of 1.5 to 4.5 was set at Level 36. Raul’s 4.3 kilos would put him within this lower range, and would yield a sentence reduction of at least 22 months.

Raul filed his petition for sentence reduction in front of a different district judge, because his first one had retired. Relying on the 4.3-kilogram quantity the district court had found at sentencing, Raul argued he was entitled to a new sentence of 188 months instead of the 210 he had been given.

corso170112“Not so fast!” the new judge said. That 4.3-kilo figure was a quick and dirty estimate of how much Raul had distributed. It never, the district court said, was intended to represent the amount Raul had distributed AND manufactured. When the manufactured meth was included, the court found, Raul’s quantity was way over 4.5 kilograms, which means his offense level stayed at Level 38, and he thus had nothing coming.

Raul appealed, arguing that the district court had found the weight of 4.3 kilos at sentencing, and that Dillon meant the new judge had to dance with girl who brung the old judge to the dance.

Monday, the 9th Circuit disagreed with Raul. A district court is bound by the facts it found at sentencing, the Circuit admitted, but only where those are complete. “In those cases where a sentencing court’s quantity finding is ambiguous or incomplete,” the appeals panel said, “a district court may need to identify the quantity attributable to the defendant with more precision to compare it against the revised drug quantity threshold under the relevant Guidelines amendment. The Supreme Court indicated that such fact-finding was permissible in Dillon.

Here, the 9th said, the original fact-finding was incomplete because the district court found that Raul had distributed at least 4.3 kilograms without ever mentioning how much Raul might have manufactured. “Section 3582(c)(2)’s eligibility inquiry may require a district court to supplement the original sentencing court’s drug quantity findings to ‘determine the amended guideline range that would have been applicable’ to the defendant in light of a retroactive Guidelines amendment.”

mickeyS170830It seems a lot like the courts are only keeping the part of Dillon’s promise they intended to keep. We would be more comfortable with the holding if it were the original judge ruling on the 3582(c)(2) motion. The original judge would presumably know what he had meant when he found the 4.3 kilo figure. It seems to us that the quantity of meth that Raul manufactured would be subsumed by the quantity he distributed. Clandestine labs don’t usually keep meth on the warehouse shelf. It’s sort of like McDonald’s: the sign in front does not count how many hamburgers were cooked. Rather, it counts the number served. So we think it’s a stretch to suggest there is a heretofore undeclared amount of meth that was made but not sold.

On the other hand, the district judge was fully empowered to look at the original 4.3 kilos found to be the amount distributed, and to conclude that that the defendant should not benefit from the sentence reduction, even if he were eligible for it. Thus, to a great extent, this is a case of “no harm, no foul.” But it is troubling that without notice or opportunity to be heard, a district court may declare a prior factual finding incomplete, and revise it upward.

United States v. Mercado-Moreno, Case No. 15-10545 (9th Cir., August 28, 2017)

– Thomas L. Root


Monday Morning Odds and Ends… – Update for August 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.


Jim and his girlfriend “Sweetie” had a brief fling a few years ago. The allure wore off for Sweetie pretty quickly. Now sick of Jim, she moved a thousand miles away.

persist170828Jim did not take rejection well. He began sending emails, texts and Facebook messages demanding that Sweetie apologize to him for breaking it off.

When she refused, Jim used social media to portray Sweetie as a stripper and prostitute, sending the lies to her new employer and generally spreading the meme to the four corners of the Internet. He told Sweetie and her family he would keep it up until she apologized. Sweetie found it pretty upsetting.

Jim was charged with interstate stalking, which he moved to dismiss on the grounds he had a 1st Amendment right to say whatever he wanted to. Problem is that the law is a bit more complex. It holds that “speech integral to criminal conduct” is not protected by the 1st Amendment.

stalk170828The district court said Jim was committing extortion under 18 USC 875(d), making prosecution of him for interstate stalking permissible despite his asserted 1st Amendment right.

Jim argued that he was not extorting Sweetie, because extortion required that one person threaten to injure the reputation of another with the intent to extort a “thing of value” from that person. Jim said all he wanted was an apology, and, after all, what’s an apology worth, anyway?

Last week, the 8th Circuit upheld his conviction. The Court found that a “thing of value” includes intangibles. The focus, the Court said, is on whether the defendant thinks what is demanded is of value. Here, regardless of how much the apology might really have been worth, it was clearly a “thing of value” to Jim. Thus, he was extorting Sweetie, and his speck thus was integral to a crime.

run170828Meanwhile, a couple hundred miles away from Jim and Sweetie, Rod had struck up an Internet friendship with a 17-year girl in another state. The young girlfriend, whom we’ll simply call “Honeybunch,” lived in an unhappy home environment and was aching to get out of there. Rod sent her money for a bus ticket to come to live with him several states away in Texas (where the romance, he conceded, would have included some “honey” from Honeybunch in the form of consensual and loving sex).

The plan fell apart before Honeybunch could even get as far as the state line. Honeybunch’s family found her missing, and panicked. When they found Rod’s phone number among things Honeybunch had left behind, they called him. Rod counseled the girl by phone to go back home, which she did.

That was not enough for the family, whose panic quickly turned to ire. They convinced the feds to prosecute Rod under the Mann Act, for knowingly transporting someone under 18 in interstate commerce “with intent that the individual engage in… sexual activity for which any person can be charged with a criminal offense.” The age of consent in Honeybunch’s home state was 18, but Rod argued that any sex would have occurred in Texas, where the age of consent was 17. Rod argued the 1st Amendment protected his communications with Honeybunch, because he did not urge her to do anything that would have been a crime where he proposed doing it.

hook170828Last week, the 8th Circuit denied Rod’s 2255 motion, too. Sure, it agreed, the age of consent in Texas is 17 years old. But it found another Texas statute that made it a crime to “employ, authorize, or induce a child younger than 18 years of age to engage in sexual conduct,” including “sexual contact, actual or simulated sexual intercourse.” Rod was right that Texas allowed him to have sex with a 17-year old, but Texas nevertheless made it a crime for him to say or do anything that might convince the 17-year old to have sex with him.

So in Texas, you can have sex with a 17-year old if you just lie there. But if you’re at all interested, you could end up with 10 years in federal prison. Charles Dickens was right: “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot’.”

United States v. Hobgood, Case No. 16-3778 (8th Cir., Aug. 22, 2017)

United States v. Goodwin, Case No. 16-1669 (8th Cir., Aug. 25, 2017)


Since the Supreme Court decided in the 2010 Curtis Johnson v. United States case that “force” meant “violent force—that is, force capable of causing physical pain or injury to another person,” circuits have been determining whether force was “violent” by asking whether it was likely to cause pain. Trust the 11th Circuit to upend that logical approach with a 67-page en banc decision holding that everyone is wrong: violent force only needs to be “capable” of causing physical pain. Degree of force no longer matters: only the effect does.

The ruling came last Friday in a reversal of an earlier 3-judge decision that Florida’s felony battery offense is categorically not a violent crime.

violence160110Five dissenting judges point out that Florida felony battery “criminalizes a mere touching that happens to cause great bodily harm… A mere touching is not violent—it does not involve a substantial degree of force. A tap on a jogger’s shoulder that happens to cause the jogger to suffer a concussion is still just a tap.” The dissenters complaint that “the Majority’s decision cannot be reconciled with Curtis Johnson… Johnson explain[s] over the course of several pages that “physical force” refers to a threshold degree of force. But the Majority, reading this lengthy analysis out of Curtis Johnson, creates a new test for “physical force” that disregards degree of force. Although the Supreme Court has cautioned against reading a statement from one of its opinions “in isolation” rather than “alongside” the rest of the opinion, the Majority does exactly that.”

United States v. Vail-Bailon, Case No. 15-1035 (11th Cir., Aug, 25, 2017)



We have written before about the Circuit split on whether a prisoner can use a 28 USC 2241 to challenge his or her guilt when there has been an intervening change in statute. Nine circuits say the saving clause of 28 USC 2255(e) permits it. Two, the 10th and 11th, do not.

A case challenging the 11th Circuit’s ban is awaiting grant of review by the Supreme Court, and some heavyweight legal talent is lining up to urge the issue on the high court. Meanwhile, the 3rd Circuit last week recognized the circuit split while reaffirming its commitment to maintaining 2241 as a safety valve.

violent160620Gary Bruce was involved in a rather ugly robbery/murder years ago in Tennessee. Among other crimes, he was convicted of witness tampering murder, for killing to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” Gary’s jury was not instructed at all about whether it had to find Gary thought the witnesses might communicate with a federal officer. At the time, the law said that “no state of mind need be proved with respect to the circumstance… that the law enforcement officer is an officer or employee of the Federal Government.”

Later, the Supreme Court held that the statute required that the jury find that it was “reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.” This was a new rule of substantive law not dictated by precedent existing at the time Gary was convicted, that narrowed the scope of the statute.

The Court said it permitted a 2241 when two conditions are satisfied: First, a prisoner must assert a “claim of actual innocence’ on the theory that… an intervening Supreme Court decision” has changed the statutory case law in a way that applies retroactively in cases on collateral review. Second, the prisoner must have had no earlier opportunity to challenge the conviction with a 2255 since the intervening Supreme Court decision issued.

Some of the people who say this really are...
‘Actual innocence’ is a standard all circuits apply to 2241 motions…

Some other circuits allowing 2241s have stricter standards, requiring that prisoners show that circuit precedent foreclosed the issue at the time the 2255 was due. Here, Gary’s brother Bob was locked up in a different circuit that had such a rule. The 3rd noted the unfairness of the disparate treatment, noting that while Congress enacted Sec. 2255 to “alleviate the inefficiencies that attend 2241’s… rules, now those difficulties have returned, though in a new form. And so they will remain, at least until Congress or the Supreme Court speaks on the matter.”

Bruce v. Warden, Case No. 14-4284 (3rd Cir., Aug. 22, 2017)

McCarthan v. Goodwill Industries, Petition for Writ of Certiorari, Case No. 17-85 (Supreme Ct., filed July 17, 2017)

– Thomas L. Root


5th Circuit Recognizes Public Right to Pre-Indictment Search Warrant Materials – Update for August 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.

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policeraid170824There are few events in life as unnerving as having a phalanx of gendarmes appear, search warrant in hand, to toss your house or office. Contrary to pop culture – where a couple of cops knock on the door with the warrant, look in a few drawers, find some evidence and leave – the execution of search warrants usually involves dozens of law enforcement personnel, takes hours to complete, and often involves you and your family watching helplessly while your home is trashed and your lives upended by scowling, officious cops.

And that’s on a good day. Many times these days, even for the most pedestrian of suspected offenses, searches include having guns pointed at your kids, being thrown to the floor, and being held, handcuffed on a couch, for hours on end.

The nightmare continues after the search, too. The property carted off is often irreplaceable and, at the same time, it may seem to the target to have no relationship to any possible criminal offense. Given the frequency these days of seizure of computers, cellphones and media storage devices, searches almost always mean loss of a trove of photos, emails, contacts and data we depend on for our businesses and daily lives.

search170824Federal search warrants are governed by Rule 41 of the Federal Rules of Criminal Procedure, and may be issued only after a particularized affidavit is presented to a federal judge or magistrate, and he or she finds probable cause to believe evidence of a crime or contraband may be found on the premises to be searched.

Justin Smith suffered having his home and offices searched by federal authorities, seeking God knows what. Because God wasn’t talking, Justin demanded that the government produce a copy of the affidavit filed with the magistrate. Justin filed a motion pursuant to Rule 41, demanding a copy, but the district court ruled that it could remain sealed after the government complained that release could hinder whatever investigation it was pursuing.

Justin appealed.

Earlier this week, the 5th Circuit agreed that he had a right to access to the affidavit, and remanded the case to the district court. The Circuit observed that there exists a general common-law right to inspect and copy public records and documents, including judicial records and documents, and it extended the right – subject to qualification – to access to warrant materials, including affidavits, during a pre-indictment investigation.

searchB170824In cases such as this one, the Court said, involving a request to unseal affidavits in support of pre-indictment search warrants, district courts should exercise their discretion by balancing the public’s right to access judicial documents against interests favoring nondisclosure. If the unsealing would threaten an ongoing investigation, the district court has discretion to redact the affidavit prior to its unsealing or even, where necessary, to leave the affidavit under seal. The same applies where unsealing such materials might endanger or discourage witnesses from providing evidence or testimony, or where the publication of the affidavit warrant could damage an unindicted target’s reputation.

“This is not to say,” the Circuit wrote, “that a district court must go to painstaking lengths to review pre-indictment warrant materials, detailing factual findings on each line of every affidavit. This Court is sensitive to the district court’s concern over the judicial resources that would have to be expended if that much detail were unilaterally required. As a result, the requisite degree of specificity will vary from case to case, but in most cases, a district court should at least articulate any reasons that would support sealing a judicial document or explain why it chose to seal a judicial document.”

The Circuit directed the district court to review Julian’s motion with the specificity that the right requires.

United States v. Sealed Search Warrants, Case No. 16-20562 (5th Cir., Aug. 21, 2017)

– Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And should that not count for something?

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

– Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root


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

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

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


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

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

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


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

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

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

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


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

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

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

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

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

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

–Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

Special Agent Freitas:   Yes.

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

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

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

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

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

Special Agent Freitas:   Yes.

District court:   The bottom hundred.

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

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

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

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

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

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

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

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

Hemza will get a new trial.

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

– Thomas L. Root


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root


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