Tag Archives: FOIA

Cleaning Up After the Long Weekend – Update for September 5, 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 had a lot of short notes included in yesterday’s newsletter to federal inmates. We’re publishing those posts below.


The supervised release statute, 18 USC § 3583, provide that if a person on supervision violates, the court may send him or her back to prison for a specified term, and then impose more supervised release. The maximum terms of reimprisonment authorized by the statute for an supervised release violation of are limited based on the severity of the original crime of conviction, not the conduct that resulted in the revocation.

Some types of offenses are just too offensive. Today, it's kiddie porn... tomorrow, it may be jaywalking. That's why we have laws, to save us from the Flavor of the Day.

However, 18 USC § 3583(k) provides an exception. If the person subject to supervised release is a sex offender, and the conduct resulting in the revocation is a specified sex offense, the court is required to “revoke the term of supervised release and require the defendant to serve a term of imprisonment… [for] not less than 5 years.”

Last Thursday, the 10th Circuit ruled that 3583(k) violated Apprendi v. New Jersey and Alleyne v. United States, in that a mandatory prison sentence was increased based on a judge’s finding of fact instead of a jury finding beyond a reasonable doubt. The Court said § 3583(k) “strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and… imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished.

United States v. Haymond, Case No. 16-5156 (10th Cir., Aug. 31, 2017)



Inmates are notorious for filing badly-written Freedom of Information Act requests. It’s surprising however, to see a lawyer file a request as convoluted as the one attorney Steve Yagman sent to the CIA.

Steve asked for “records/information” on “the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons.” Specifically, he wanted the names and affiliations of those “as to whom President Obama stated that ‘we tortured some folks’ on August 1, 2014: that is, who are the individuals whom the word ‘we’ refers to?”

spy170905The CIA wrote Steve back, explaining correctly that FOIA does not require agencies to answer questions. The agency invited Steve to rewrite his request. Steve did not, but instead sued. The district court ruled Steve’s letter did not constitute a request for records, and thus that he had not exhausted administrative remedies. For that reason, the district court said, it lacked subject-matter jurisdiction to hear the case.

Last week, the 9th Circuit reversed. The Court ruled that because the goal of the FOIA was to provide government information to ordinary citizens, FOIA requests from citizens had to be construed liberally. Sure, Steve’s request was a hot mess, but the Court said Steve’s failure to reasonably describe the records he wanted went to the merits of his claim, and was not a jurisdictional issue.

The Circuit rejected the argument that the request had to reasonably describe the records sought to satisfy “exhaustion and exhaustion itself is jurisdictional,” the Circuit said, “we reject that argument as well. Significantly, FOIA does not expressly require exhaustion, much less label it jurisdictional, nor does FOIA include exhaustion in its jurisdiction-granting provision… Therefore, exhaustion cannot be considered a jurisdictional requirement.”

Yagman v. CIA, Case No. 15-55442 (9th Cir., Aug, 28, 2017)


The enhancements on the catch-all federal drug offense, 21 USC § 841(b), are tough: any prior state “felony drug offense” can double the mandatory minimum, or even pop it up to life. The term “felony drug offense” is defined in 21 USC § 802(44) as “an offense that is punishable by imprisonment for more than one year… that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”

Luis Ocampo-Estrada had a prior conviction under Cal. Health & Safety Code 11378, a drug trafficking offense. California law makes the particular illegal drug an element of the offense, and federal courts used the modified categorical approach to determine whether the crime fits within the “felony drug offense” definition.

yellowpill170905The documents filed by the government showed that Luis had pled to an 11378 offense, but did not specify exactly what kind of drug was the basis for the conviction. The government has the burden to prove a prior conviction qualifies as a felony drug offense, but here offered only the abstract of judgment and the state-court minutes from the pronouncement of judgment, neither of which answered “the central question before us: whether Ocampo pleaded guilty to a controlled-substance element of § 11378, which is encompassed by the federal “felony drug offense” definition…”

United States v. Ocampo-Estrada, Case No. 15-50471 (9th Cir., Aug. 29, 2017)


The 8th Circuit last week ruled that the Wisconsin felony of battery of a law enforcement officer is categorically a crime of violence.

violent170315The defendant, Patrick Jones – who had been convicted of being a felon-in-possession of a firearm under 18 USC § 921(g) and the Armed Career Criminal Act18 USC 924(e) – argued that the Wisconsin statute’s definition of bodily harm includes “illness,” a person could be convicted under Wisconsin Statute 940.20(2) merely for attempting to give an officer a cold. But the Circuit found that Wisconsin cases provided “no realistic basis to conclude that courts would find such low-level conduct sufficient to support a conviction under the statute.” A theoretical possibility that a state may apply its statute to conduct falling short of violent force is not enough to disqualify a conviction; only a realistic probability will do.

The 8th said “The simple fact that the word “illness” is included in the definition of bodily harm is insufficient to render the statute overbroad.”

Meanwhile, 2,500 miles northwest of Minneapolis, the 9th Circuit sitting in Anchorage, Alaska, heard a case in which Dave Geozos – also sentenced under the ACCA – argued that his conviction for armed robbery in Florida was not a crime of violence. The Circuit agreed, holding first that the fact that a robbery is committed while carrying a gun does not make the offense any more violent, because the gun can remain concealed and unused. As for robbery, while it requires more force “than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.” However, the amount of resistance can be minimal.

The 9th held that “neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a ‘violent felony’. We recognize that this holding puts us at odds with the Eleventh Circuit, which has held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are ‘violent felonies’ under the force clause.”

The split could set up a Supreme Court review, if the government decides to push the issue. Meanwhile, prisoners with Florida robbery predicates may start figuring out how to get transferred to a joint in the 9th Circuit.

Jones v. United States, Case No. 16-3458 (8th Cir., Aug. 29, 2017)

United States v. Geozos, Case No. 17-35018 (9th Cir., Aug. 15, 2017)

Thomas L. Root


Some Short Notes from D.C. – Update for August 7, 2017

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


The D.C. Circuit handed down a pair of rulings last Friday. One, the reversal of sentences (and in one case, a conviction) for four Blackwater contractors over a 2007 Baghdad massacre, was widely reported. The other, a case about prisoners’ waivers of FOIA rights, flew under the radar. Both are of significance to federal inmates.



carriefgun170807The big news from the D.C. Circuit last Friday was the reversal of sentences for four Blackwater private security contractors who massacred 14 civilians after they mistakenly thought they were under attack on a Baghdad street. Buried in that decision is a holding of interest to federal prisoners with 18 USC 924(c) convictions, especially where those counts are stacked to result in horrendous sentences.

The contractors were armed with government-issued M4 rifles, which of course can be set to fire fully automatically. Because of that, each of the defendants – found guilty of committing a crime of violence with a gun – got a mandatory sentence of 30 years because the weapon was a machine gun.

Apparently, hanging the 924(c) machinegun sentence on the defendants was contentious, even in the Justice Department. The D.C. Circuit agreed, ruling that applying the mandatory 30-year sentence to the contractors – based “solely on the type of weapons… used – violated the 8th Amendment’s prohibition against cruel and unusual punishment.

In its opinion, the Circuit tried mightily to limit the decision to the facts of the case: It notes the firearms were a type required by the government, the contractors all had prior unblemished military records and no other convictions, it was a war zone where snap judgment was the difference between life and death, the contractors did not choose to be on that street corner, but were ordered there by their commander, and they did not set out that day to blow away civilians. The Court also noted that when 924(c) was last amended, the concept of private contractors protecting U.S. diplomats was not envisioned.

overkill170807“Combining all of these considerations,” the appellate court said, “we conclude the mandatory 30-year sentences create the rare case that leads to an inference of gross disproportionality… None of the penological justifications our society relies upon when sentencing criminals — incapacitation, rehabilitation, retribution, or deterrence — are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.”

The Blackwater case has a rare set of facts, and run-of-the-mill defendants – who, for example, use a submachine gun to rob a bank – are unlikely to get much love from the holding. However, now the 8th Amendment camel’s nose is inside the tent. It will be interesting to see whether 8th Amendment claims become a staple of 924(c) defense elsewhere in the country.

United States v. Slatten, Case No. 15-3078 (D.C.Cir., Aug. 4, 2017)



The government often demands, as a price for plea agreements, that defendants waive their right to pursue Freedom of Information Act requests.

Last Friday, the D.C. Circuit outlawed the practice, holding that the FOIA waiver is unconnected to any “legitimate criminal justice interest” and is void as a matter of public policy.

foia160930The Court said a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking a plea bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation with the authorities… This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.”

While banning FOIA suits “may occasionally promote the government’s legitimate interest in finality,” the Circuit said, “they only do so by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality… FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients.”

Price v. Dept. of Justice Attorney Office, Case No. 15-5312 (D.C.Cir., Aug. 4, 2017)

– Thomas L. Root


“Standing” Up for the FOIA – Update for April 7, 2017

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



The Freedom of Information Act is a pretty slick statute. Using FOIA, Joe Average Citizen can obtain all sorts of information from government agencies, quite often including information the government would rather Joe not have.

WHBeer170407Journalists used FOIA to get the FBI file on Dr. Martin Luther King. Hillary’s emails were released because of FOIA requests. The IRS targeting scandal erupted because of an FOIA request. And on a more individualized scale, a casual Freedom of Information Act request we made back in 1994 for an inmate with a life sentence resulted in his release 12 years later.

As an old law partner we once practiced with liked to say, you never know what’s under a rock until you turn it over. Picture the FOIA as the spud bar you use to turn over those rocks.

All is not roses, by any means. First, FOIA applies only to federal agencies, and then only to executive branch agencies. FOI the FBI? Sure thing. CIA? Why not? But you cannot use the FOIA to U.S. Probation Office documents (it’s a judicial branch agency) or to get into the Government Accountability Office files (the GAO is a legislative branch agency).

Redac170407The FOIA has some very restrictive deadlines for agencies to respond, which should ensure that requesters get their documents quickly. Anyone who’s ever filed an FOIA request knows that the agencies honor those deadlines in the breach. And why not? A requester’s only recourse is to sue, after which the agencies will drag their bureaucratic feet even more, and then finally send a few documents and tell the court that they have no idea what the requester’s beef is – he or she got the documents.

And the document response will be incomplete, and documents that are turned over will have words, sentences, paragraphs – sometimes the whole page – blacked out (“redacted” is the term the agencies use) because of one or another exemption from disclosure. That requires more litigation and more piecemeal response. We worked on one plain vanilla FOIA request filed with a U.S. Attorney’s office and the FBI in 2009 that was finally fulfilled after seven years of litigation. Sadly, the Obama Administration – which promised to be the most “transparent” in history – was one of the least compliant with the FOIA.

Still, like the state lotteries tell us, you have to play to win. That’s why we were so bemused by a D.C. Court of Appeals decision this past week in an FOIA action brought by well-known post-conviction lawyer Jeremy Gordon and his non-profit arm, Prisology.

prisology170407Prisology sued the Federal Bureau of Prisons under the FOIA, charging that the BOP violated the statute because it did not publish inmate grievances and its responses, Federal Tort Claims Act lawsuit settlement information, and reports on compassionate releases it has recommended to courts. Prisology argued that a section of the FOIA requiring publication of agency final opinions, policy statements not published in the Federal Register, and administrative staff manuals, mandated that the BOP post up the omitted information on the Internet.

But you’ve gotta be a player first, and Prisology overlooked that. It seems the nonprofit never requested bothered to request any information under the FOIA – so it could be turned down – before filing its two-page lawsuit.

Earlier this week, the D.C. Circuit Court of Appeals reminded Prisology that it’s pretty basic first-year law school dogma that anyone bringing a lawsuit has to be able to allege concrete injury. Article III of the Constitution requires a “case or controversy,” and since the dawn of the Republic, that means that the party bringing the suit has to be able to allege it was injured.

player170407The Circuit noted that “Prisology’s complaint contains no allegation of injury, general or otherwise. Even if we inferred an injury to Prisology from the Bureau’s alleged failure to publish its records electronically, this would not differentiate Prisology from the public at large… Prisology made no request of the Bureau of Prisons before bringing suit and therefore received no denial from that agency.”

Prisology argued that its lawsuit “amounted to a request for particular information,” meaning that it has standing. “The argument goes nowhere,” the Circuit replied. “To the extent that a complaint may be seen as a request, it is a request for relief from a court. If the court denies the request, the plaintiff may appeal. But a court’s refusal to grant relief cannot confer Article III standing that otherwise does not exist.”

denied170407We’re rather surprised that the plaintiff made such a rookie mistake. To nonlawyers, “standing” might seem to be a frivolous formality, and the Court acknowledged that, even while expressing its own puzzlement at Prisology’s approach:

The result here may seem overly technical. But Prisology’s predicament is one of its own making. With little effort it may have been able to satisfy the requirements of Article III. The Supreme Court over the years has taken steps to clarify the law of standing. We would not muddy the waters in order to accommodate Prisology’s recalcitrance even if we had the power to do so, which we do not.

Prisology v. Bureau of Prisons, Case No. 15-5003 (April 4, 2017)

– Thomas L. Root