Two Negatives Don’t Make a Positive – Update for July 25, 2016

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Not everyone likes high school grammar classes, but we understand that peaking well is the best way to be understood. You know, no dangling participles, no split infinitives, and especially no double negatives.

nuthin160725The double negative: When the Rolling Stones sang, “I can’t get no satisfaction,” they were really saying “I can get satisfaction.” A double negative becomes a positive.

LA banger Kevin Jones could have saved himself some grief if he had listened better in high school (or better yet, attended high school at all). He was arrested after three members of a rival gang were shot at a gas station from a moving vehicle that looked an awful lot like his car. Police questioned him for a few hours without making any progress. But finally, a detective said, “You drove the car. You just didn’t know it was going to happen like that. Kevin, sit up, man.”

Kevin shook his head and replied, “I don’t want to talk no more, man.”

But the cops’ questions continued and so did Kevin’s answers, until he had incriminating himself. After losing at trial, he filed a state habeas corpus claim, arguing that his 5th Amendment rights had been violated by the police.

California state courts took the position that “I don’t want to talk no more, man” was ambiguous, which is technically true. Generally, it means “I don’t want to talk anymore,” but it could mean “I don’t want to talk not anymore.”

Chief Joseph famously said, “I will fight no more forever,” but these words – from a non-native English speaker – had eloquence to them. Kevin’s did not. Still, last week, the 9th Circuit held that the California state courts had been unreasonable in finding his statement ambiguous.

no160725The Circuit panel held that any reasonable judge would have to conclude that when Kevin said he did not want to talk “no more,” he was invoking his right to remain silent. By continuing to question Kevin after his invocation of the right to remain State cannot use as evidence anything he said after his invocation, and contrary to clearly established Supreme Court case law.

“No” means “no,” even if it is used too often.

Jones v. Harrington, Case No. 15-56360 (9th Cir.  July 22, 2016)


Are the Stars Aligning for Sentencing Reform? – Update for July 24, 2016

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SR160509Last week may have been the Republican Convention in Cleveland, but some Republicans were baking in the Iowa sun instead, talking about the Sentencing Reform and Corrections Act of 2015. Sen. Charles Grassley (R-Iowa), held a news conference last Wednesday in Des Moines International Airport with Sen. Tim Scott, (R-South Carolina), to talk up the SRCA, which Grassley introduced almost a year ago.

Scott said he is optimistic the SRCA can pass, given the bipartisan support it is receiving from outside groups such as the conservative Koch brothers and the American Civil Liberties Union. “It’s one of those unusual times when the stars align,” Scott said.

Scott and Grassley noted the House is looking at a wider array of criminal justice bills, but they expect both side to narrow in on legislation that can be passed this year.

One hopeful sign is that, according to, the 2016 GOP platform is trying to swap support for the Senate version of SRCA with House bill, which includes mens rea rules that Democrats complain would restrict the prosecution of white-collar executives for violating federal business laws and rules.

The proposed exchange is outline in a section of the platform which calls for reductions in penalties for criminals that mostly hurt blue-collar communities and minority communities, such as gangs and drug traffickers who are convicted for apparently non-violent crimes.

The platforms offer of reduced jail sentences for blue-collar criminals — drug-runners, murderers, muggers — is tied to a rollback of criminal prosecutions rules. Democrats are reluctant to trade the mens rea, guilty mind rollback for the opportunity to release criminals back onto the streets.

actus160222Yet unless Democrats agree to the mens rea requirements, crucial swing-vote Sen. Orrin Hatch (R-Utah) said in May that he won’t back the SCRA. “The current criminal justice bill is inadequate … [unless it deals with] the problem of over-criminalization,” he said.

House Speaker Paul Ryan (R-Wisconsin) said two weeks ago that he intends to push the SRCA and other criminal justice bills slashing sentences for federal prisoners amid rising murder rates in U.S. cities, cops being targeted for execution by black radicals, and a heroin epidemic fueled by Mexican drug cartels and their illegal alien traffickers.

The SCRA companion bill has stalled in the Senate after several prominent Republicans, including Sens. Jeff Sessions, Tom Cotton, and David Vitter — along with law enforcement groups — slammed the bill, saying it would sign “death warrants” for more crime victims.

Ohio State law professor Doug Berman said in his sentencing law post last month that the SRCA was essentially dead in Congress, but last week he said, “I am certain Senator Grassley knows a lot more than I do about whether it may still have some legislative life left in it. I sure hope so.”


A Kinder, Gentler Robbery – Update for July 23, 2016

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Corey Jones had just finished a 92-month sentence for being a felon-in-possession, but apparently his nearly eight years in federal stir was not quite long enough to get through to him. While in halfway house, he got into a shouting match with a staffer. The U.S. Marshals came to get him, whereupon he bit one of them on the finger.

Charged with assaulting a federal officer, Corey faced 210 additional months because his Guidelines set him as a career offender, based on – among others – a prior New York first-degree robbery. The 2nd Circuit had already held that New York Robbery 1 was a violent crime, but that was before Johnson v. United States.

Thursday, the 2nd Circuit reversed its prior stance, agreeing with Corey that after Johnson, New York 1st degree robbery was no longer a violent crime. The Court acknowledged that under Johnson, “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another. Correspondingly, force that is not “capable of causing physical pain or injury to another,” i.e. less‐than‐“violent,” cannot qualify a crime as a violent felony…”

Robber160229A defendant commits 1st degree robbery in New York when he commits a robbery and during the course of the crime or his immediate flight either causes serious physical injury to any other person who is not a participant in the crime, is armed with a deadly weapon, uses or threatens the immediate use of a dangerous instrument, or displays what appears to be a gun. The Court found the New York statute to be divisible, but it could not tell from the record which subdivision Corey had violated. Thus, it had to rely on the least of the four subsections, being armed with a deadly weapon.
The case turned on whether the force that a defendant used in the robbery was “violent force.” The Circuit found that New York law interprets “‘forcible stealing’ so that it does not always involve “force capable of causing physical pain or injury to another’.”

The Court was talking about a concealed firearm...
The Court was talking about a “concealed and unmentioned” firearm. Probably not this one…

That leaves the gun. Considering whether the presence of a firearm turns a less-than-violent encounter into a violent on, the Court of Appeals decided that “when we conduct the inquiry Johnson requires, we cannot conclude that the presence of a gun that a robber does not display, use, or threaten to use during a robbery has any effect on the nature of the force that the robber exerts on his victim. Put another way, a robber’s possession of a concealed and unmentioned weapon while he commits a robbery can support a first‐degree robbery conviction… but such possession cannot turn what is otherwise less‐than‐violent force into violent force. It is therefore possible to commit first‐degree robbery in New York in a way that does not fall within the Career Offender Guideline’s definition of ‘crime of violence’.”

Thus, the 2nd concluded, “in the wake of Johnson that a New York robbery conviction involving forcible stealing, absent other aggravating factors, is no longer necessarily a conviction for a ‘crime of violence’ within the meaning of the Career Offender Guideline.”

United States v. Jones, Case No. 15-1518 (2nd Cir. July 21, 2016)


A Really Bad Idea – Update for July 22, 2016

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badidea160725Good criminal defenses can rely on all sorts of time-tested strategies to win acquittal for a defendant, even after conviction. John Walthall tried one that was not so good. Really not good at all.

John was convicted in Los Angeles federal court last Tuesday of trying to hire some fellow inmates to kill the team of lawyers and agents who prosecuted him, and then, for good measure, kidnaping the judge who presided over the trial and feeding him into a wood chipper.

This was on top of his prior bad idea of becoming a fugitive instead of showing up for his trial, a fraud case in which he was accused of fleecing some elderly people out of a couple million dollars.

Once behind bars, the government contended, John approached two inmates with his plans. He issued step-by-step instructions, prosecutors said. Hired hands would assault and murder the team of prosecutors and FBI agents who won the fraud conviction against him, while the judge would be kidnapped and forced to exonerate John before being tortured with the wood chipper. In return, John agreed to pay up to $1 million per victim, according to court papers. Probably in commissary.

But the two inmates’ families notified the FBI. The FBI sent an additional co-conspirator (who unsurprisingly was actually an undercover agent). John’s plans quickly went awry.

John’s lawyers argued their client was crazy and was just saying crazy things, but BOP psychiatrists found him quite sane.

John faces a maximum sentence of another 20 years on top of the 14 he’s already doing for the fraud, thus proving that no matter how bad things are for you, they can always get worse. Always.

Los Angeles Times, Man is convicted of plotting to kill a judge with a wood chipper in a case resembling ‘Fargo’ (July 20, 2016)


Two FOIA Decisions Affecting Criminal Law – Update for July 21, 2016

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(Note: We updated this post on July 23, 2016)



GBL160725Two Freedom of Information Act decisions of particular interest to our readers were handed down in the past few days, one good for inmates and one bad.  And a case filed in D.C. Federal Court accuses the FBI of a FOIA practice that;s just plain ugly.

The Good: A week ago, the 6th Circuit reversed its 20-year holding that arrestees’ mugshots are discoverable by the news media and public under FOIA. The Court summarized its holding as follows: “In 1996, we held that FOIA required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I.”

The holding is especially important because it affected arrestees around the country. No matter what other circuits said, if a newspaper in Los Angeles, for instance, needed the booking photo of Dennis Defendant – who was being held in San Diego – the reporters would just call a buddy at the Detroit News (or anywhere else in the 6th Circuit). The Detroit reporter would request the picture, and because any FOIA action to get it could be filed in the 6th Circuit, the San Diego cops would send the photo.

 No more free booze at Christmas for 6th Circuit-based reporters...
No more free booze at Christmas for 6th Circuit-based reporters…

No more. The 6th Circuit is now aligned with other federal circuits. This means that reporters in Detroit doing favors for their friends elsewhere in America can no longer look forward to that bottle of single malt arriving every Christmas.

The Bad: The National Association of Criminal Defense Lawyers asked the DOJ for a copy of the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by DOJ to guide federal prosecutors in the practice of discovery in criminal prosecutions containing advice about conducting discovery, including guidance about the obligation to provide discovery to defendants. It would be a treasure trove for defense attorneys, like having the other team’s playbook before the game.

Naturally, DOJ refused to disclose the Blue Book, invoking FOIA Exemption 5, which exempts from disclosure agency records that would be privileged from discovery in a lawsuit with the agency. DOJ said the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by and for attorneys in anticipation of litigation. The district court agreed . Last week, the D.C. Circuit did, too.

Under Exemption 5, agencies may withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Exemption 5 allows the government to withhold records under at least three privileges: the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege.

Here, the Court said, release would offend the attorney work-product privilege. The privilege provides a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s case, and prepare legal theories, the Court said. “Protecting attorney work product from disclosure prevents attorneys from litigating “on wits borrowed from the adversary.”

In ascertaining whether a document is covered by the work-product privilege, the Court applied a “‘because of’ test, asking whether, in light of the nature of the document and facts in the case, the document “can fairly be said to have been prepared or obtained because of the prospect of litigation.” For that standard to be met, the attorney who created the document must have “had a subjective belief that litigation was a real possibility,” and that subjective belief must have been “objectively reasonable.”

BlueBook160725The Blue Book describes the nature and scope of federal prosecutors’ discovery obligations under applicable constitutional provisions, caselaw, and the Federal Rules of Criminal Procedure. It has nine chapters, written by DOJ prosecutors with expertise in a wide range of discovery-related topics, addressing subjects including: Federal Rule of Criminal Procedure 16, regarding discovery; the government’s obligations to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972); disclosure duties arising from the Jencks Act, 18 U.S.C. § 3500; items protected from disclosure; and the use of protective orders and ex parte and in camera submissions in discovery. The Blue Book contains confidential legal analysis and strategies to support the Government’s investigations and prosecutions, and is nothing less than an internal manual containing litigation strategies.

Thus, the Court concluded, the Blue Book was “created in anticipation of reasonably foreseeable litigation,” namely, federal criminal prosecutions, and does not have to be disclosed.

The Ugly:  A lawsuit filed recently in the U.S. District Court for the District of Columbia claims the FBI uses outdated information technology systems to deliberately block FOIA requests. A Massachusetts Institute of Technology security researcher claims the agency deliberately runs FOIA searches through a decades-old system – knowing the searches will fail to produce any results.

“The FBI will do anything in their power to maintain functional immunity from FOIA requests. They’re outright hostile to FOIA,” the researcher told the Wall Street Journal. He says instead of full-text search, the agency uses an antiquated index system similar to a library card catalogue.

The FBI denies the allegation.




Detroit Free Press v. Dept. of Justice, Case No. 14-1670                           (6th Cir. July 14, 2016)

Nat’l Ass’n of Criminal Defense Attorneys v. Dept. of Justice,                  Case No. 15-5051 (D.C. Cir. July 19, 2016)

FBI Blocking FOIA Requests With Aging IT, Lawsuit Alleges, Wall Street Journal (July 22, 2016)


Prisoners with Disabilities – Update for July 20, 2016

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America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure, according to a study on the disabled in America’s prisons issued earlier this week.

disabledgraf160725The report, Disabled Behind Bars – The Mass Incarceration of People With Disabilities in America’s Jails and Prisons, argues “the crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.”

Over 30% of prison inmates and about 40% of jail detainees suffer from hearing, vision, cognitive, ambulatory, self-care, or independent living disabilities, the report states. “People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the non-incarcerated population.”

The report also found a dearth of support for disabled prisoners, who are “often deprived of necessary medical care, as well as needed supports, services, and accommodations.” The report claims that this imbalance of needs and services exists despite long-standing federal disability rights laws such as the Americans with Disabilities Act and other statutes “that mandate equal access to programs, services, and activities for all people with disabilities in custody.”

The study called for a number of changes in the approach to disabled inmates, including establishing of an Office of Disability within the Department of Justice, more diversion of the disabled into community-based corrections, and enhancing training and resources within prisons to ensure compliance with the Americans with Disabilities Act.

Disabled Behind Bars was written by Rebecca Vallas and published by The Center for American Progress, a liberal think tank in Washington, D.C.

Center for American Progress, Disabled Behind Bars – The Mass Incarceration of People With Disabilities in America’s Jails and Prisons (July 2016)


Even More ‘Second-and-Successives’ – Update for July 19, 2016

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We don’t want to seem like a broken record, but the appellate courts keep cranking out the second-and-successive denials, and every one of them seems to contain a different nugget of interest.

broken-recordWilliam Hunt sought permission from the 11th Circuit to file a second-and-successive 2255 motion under Johnson v. United States, arguing that his sentence under 18 U.S.C. § 924(c) was infirm because the crime in which he was using a handgun – armed bank robbery – is no longer a crime of violence. This seems a stretch to us, but Will only asks permission to make the argument to a district court that his Guidelines were improperly enhanced, so this is probably not the time to punch holes in his case on the merits.

The 11th Circuit denied Will Hunt’s second-and-successive application yesterday, noting that currently circuit precedent held that his claim was meritless. However, the Court noted that while its Matchett decision “determined that the void-for-vagueness doctrine does not apply to advisory Guidelines… we note that the Supreme Court recently granted certiorari in Beckles v. United States… which raises the question of whether Johnson applies to the Guidelines. Should Beckles abrogate our decision in Matchett, Hunt may be able to file a § 2255 petition based on Johnson.”

Thus, the Circuit denied Will Hunt’s second-and-successive application “without prejudice, with leave to file another application after the Supreme Court’s decision in Beckles.”

Compare this treatment to the peremptory denial of Gary Baptiste last week.

In re Hunt, Case No. 16-14756-J (11th Cir. July 18, 2016)


More Fun with Second-and-Successive “Second-and-Successives” – Update for July 18, 2016

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A few days ago, we wrote about Gary Baptiste, whom the 11th Circuit said had returned to the well once too often seeking permission to file a second-and-successive 2255 motion. Today, he has a fellow traveler – John Dawkins, who having been convicted of bank robbery, applied to file a second-and-successive 2255 in the 7th Circuit.

John was challenging whether his predicate Illinois burglary conviction was a crime of violence under the Guidelines § 4B1.2(b) “career offender” definition in the wake of Johnson v. United States. The 7th Circuit denied the application last January, holding that the Illinois burglary was a generic burglary of a dwelling, which is enumerated as a crime of violence in the sentencing guidelines.

hesback160718After the Supreme Court’s June decision in Mathis v. United States, Dawkins applied for leave to file a second-and-successive again, this time arguing that the Illinois burglary was no longer a generic burglary, and – of course – was not otherwise violent under Johnson. Last Friday, the 7th Circuit shot him down again.

Dawkins argued that Mathis provides an independent basis for a second-and-successive authorization, reasoning that any intervening change in the law allows a successive application. The Court held that “this proposition clearly is not true; only new rules of constitutional law, made retroactive by the Supreme Court, can provide a basis for authorization… Mathis did not announce such a rule; it is a case of statutory interpretation. An independent claim based on Mathis must be brought, if at all, in a petition under 28 U.S.C. § 2241.”

Dawkins v. United States, Case No. 16-2683 (7th Cir. July 15, 2016)


House to Vote on Sentence Reform, Ryan Says – Update for July 17, 2016

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SR160509House Speaker Paul Ryan (R-Wisconsin) said last Friday that the House will consider a package of six criminal justice reform bills – including the Sentencing Reform and Corrections Act of 2015 (H.R. 3713) in September.

In an interview on National Public Radio, Ryan promised to give floor time to a package of criminal justice bills advanced by the House Judiciary Committee. The House of Representatives adjourned on Friday until after Labor Day, to give members time to campaign for re-election.

House passage may put pressure on the Senate to vote on S. 2123, its own version of the SRCA. Getting that measure passed is going to be a taller order, given Senate Majority Leader Mitch McConnell’s refusal thus far to commit to bringing the measure up for a vote.

Ironically, Speaker Ryan’s surprise announcement came only a day after Families Against Mandatory Minimums candidly admitted that while “the Sentencing Reform Act (H.R. 3713) and the Sentencing Reform and Corrections Act (S. 2123) made it past the committee review process, they are not at all likely to get voted on or passed this year. There were some good reforms in those bills, but also some bad sentencing changes that would have made things worse. FAMM had been hoping for chances to improve those bills and has been asking Congress to do more. We won’t stop doing that, and we won’t stop working while Congress is away.”

The House version of SRCA picked up two additional sponsors last week, Jim McDermott (D-Washington) and Rob Blum (R-Iowa), bring the number of co-sponsors to 73.  S. 2123 also picked up a pair of additional co-sponsors, Sherrod Brown (D-Ohio) and Dean Heller (R-Nevada). That bill now has 36 co-sponsors.


2nd Circuit Holds “Career Offender” 2255 in Abeyance – Update for July 16, 2016

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By now, everyone is aware that before it left for summer vacation, the Supreme Court granted certiorari to Beckles v. United States. This means by the end of the year or early in 2017, the justices will decide whether Johnson v. United States applies to “career offender” sentences under the Sentencing Guidelines (a decision which probably will also dictate whether Johnson applies to the many other references in statute and the Guidelines to “crimes of violence.”

justices160718A reader recently asked us what courts were doing with pending 2255 motions that argued Johnson should apply to “career offenders” and people with 924(c) gun convictions based on crimes of violence. Last Thursday, the Court of Appeals for the 2nd Circuit gave us a hint.

Michael Blow pleaded guilty to one count of conspiring to distribute 5 grams or more of cocaine base. The district court sentenced him to as a career offender under the Sentencing Guidelines. He recently filed an application with the 2nd Circuit for leave to file a second-and-successive 2255 motion under Johnson, to argue that one of his predicate offenses was no longer a violent crime.

The 2nd Circuit noted the Supreme Court’s recent grant of certiorari in Beckles, and that the 4th Circuit had previously decided that a “career offender” Johnson challenge would support a second-and-successive 2255, in In re Hubbard. The 2nd said that “in sum, there is substantial disagreement among other circuits on the question on which the Supreme Court has granted certiorari in Beckles.” For that reason, the court granted Michael Blow the right to file a second and successive 2255, and said that “because the Supreme Court will likely decide in Beckles whether Johnson applies retroactively to the Guidelines, the district court is instructed to hold Blow’s § 2255 motion in abeyance pending the outcome of Beckles.”

Blow v. United States, Case No. 16‐1530 (2nd Cir. July 14, 2016)