Tag Archives: psr

Ghost Dope Takes a Little Hit – Update for February 3, 2020

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

QUESTION AUTHORITY

question200203Anyone looking to take up writing fiction for a living could do worse than to become a presentence report writer for the US Probation Office. More than one defendant has found his or her PSR describing an offense so nasty and a person so rotten that you’d never want to associate with such a person.

Background: Every federal criminal defendant who either pleads guilty or is found guilty has a presentence report prepared by the U.S. Probation Office. The Report, required by Federal Rule of Criminal Procedure 32(c)(1), is supposed to set out in neutral terms information about the offense and the defendant’s background, and propose a calculation of how the Sentencing Guidelines should apply to the crime. In fact, the PSR usually reads like it was dictated by a drunken Nancy Grace, describing the offense conduct based solely on what the U.S. Attorney and law enforcement agents have provided and painting the defendant as something you’d grimace at while you scraped it off your shoe.

The worst departures from reality one finds in PSRs usually come in drug cases, where “ghost dope” can send the Guidelines into low earth orbit. Any drug defendant can tell you about “ghost dope.” “Ghost dope” is the amount of controlled substance a defendant was not caught with, but which existed or did not exist according to the say-so of law enforcement.

nancygrace200203Anyone who has seen the system knows the deal. The most pernicious example is the stash-house sting, where an agent provocateur working for the ATF convinces some down-on-their luck boyz in the ‘hood (and yes, virtually all stash-house sting defendants are black) that there is a drug stash house where drugs and money are stored. The guys are recruited to help rob the stash house. When they arrive at the staging area, preferably with guns (if they can locate them to bring), the hapless defendants are arrested. These cases are legion for “ghost dope:” because the stash house does not exist, the ATF can make up as much crack cocaine is purportedly stored at the stash house. Why rob a drug dealer of five kilos when you can rob him of 20 kilos? And since sentence length is driven by the amount of drugs at issue, a “pretend” 20 kilos locks people up a lot longer than five kilos.

A much more common application of “ghost dope” comes in cases where the defendant is charged with and pleads to, say, 1.44 kilos of cocaine powder, only to discover at sentencing that “two CIs [confidential informants] reported that defendant sold 10 kilos of meth a day for three years.” Attacking such fanciful PSR claims is like shadow boxing, and too often, the district court finds the claim is proven by a preponderance of the evidence because, after all, the PSR says so.

dope200203Joe Helding found himself in that position. He pled to possession of 100 kilos of marijuana, but the PSR cited five confidential informants who had told law enforcement Joel had also possessed “over a pound” of methamphetamine on one particular date, had fronted one of them a couple ounces of meth every day or two for two months, and had been seen by another selling “multiple ounces” of meth on three occasions for $500 per ounce. The PSR, converting the supposed meth weight to pot, set Joel’s drug amount at 4,680 kilos, 32 times what he pled to.

Joel objected to the PSR’s meth findings, arguing that nothing corroborated what the CIs reportedly told law enforcement. Nor, he added, did the PSR include any explanation of why law enforcement found the CI information credible. The district court overruled Nick’s objection, finding that the government had shown his possession of the 4,680 kilos of meth by a preponderance of the evidence. The court reasoned the reports were reliable, because the “confidential informants were able to provide specific information related to the defendant’s involvement in sales of drugs, including dates and quantities.” Thus, the district court said, “[a]bsent contrary evidence, therefore, I overrule that objection. “

Last week, the 7th Circuit reversed. The Circuit said, “Our reading of the sentencing transcript leaves us with the impression that the district court overruled Helding’s objection because the information supplied by the CIs was detailed. While the observation appears accurate, the reasoning came very close to the district court saying it credited the CI information because of its inclusion in the PSR. What concerns us is that this reasoning prevailed over Helding’s objection, with no step being taken to find some modicum of reliability of the CI information…”

“A criminal defendant has a due process right to be sentenced based on accurate information,” the 7th said. “Reliability is a central ingredient of the due process analysis: where the district court sentences a defendant based on the drug-quantity guidelines, it must find the government’s information sufficiently reliable to determine drug quantity by a preponderance of the evidence…” Though the threshold for a sufficient reliability finding may be low, it is not so low as to be met in the face of a defendant’s objection by a confidential informant’s out-of-court statement unaccompanied by any additional support.”

witness191111Here, Joel had never admitted to any meth trafficking, and “the district court saw no affidavits, reviewed no reports from the case agent, and heard no testimony from law enforcement handlers or other witnesses corroborating the drug quantity information. The court relied solely on CI-1 and CI-2’s statements as they were recounted in the PSR, which accounted for over 96% of Helding’s drug quantity.” While how it determines reliability is up to the district court’s discretion, nevertheless, “facing an objection like Helding’s, the district court must take some step to ensure that the CI-provided information has a modicum of reliability.”

United States v. Helding, 2020 U.S.App. LEXIS 2655 (7th Cir Jan 28, 2020)

– Thomas L. Root

The Short Rocket… – Update for January 27, 2020

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

What’s Mine Is Mine…

rocket-312767The presentence report is one of the most valuable documents an inmate can have access to in working on post-conviction motions, as well as on prison-related issues. It controls access to drug programs, halfway house, earned time credits… just about everything that the BOP mandates or prohibits is based on what staff can glean from the presentence report.

The BOP does not permit you to keep a copy in your legal materials, but that does not mean you cannot have one at home.

More than one prisoner has run into a prior attorney saying he or she is not allowed to provide the PSR to a defendant. That happened to Kevin Marvin, whose judge had a policy that a defendant could go over his or her PSR, but was not allowed to have a copy. Kevin’s lawyer obeyed the judge, but at sentencing, Kevin complained to the judge that he wanted a copy of his PSR. She turned him down, saying, “There is confidential information in the PSR that would be harmful” to Kevin and his family if it were made public.

Last week, the 7th Circuit ruled that Federal Rule of Criminal Procedure 32(e)(2) requires a probation officer to give the PSR to “the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing.” And “give” means “give—that is, transfer—the PSR to not only the defendant’s attorney, but also the defendant. Under its plain meaning, the rule cannot be satisfied by giving the PSR only to the defendant’s and government’s attorneys; the probation office also must also give the PSR to the defendant.”

The Circuit noted that a defendant’s possession of a PSR in prison could be dangerous, and suggested a district court could put reasonable limits on possession. But a blanket prohibition of a defendant possessing his or her PSR violates Rule 32(e)(2).

United States v. Melvin, 2020 U.S. App. LEXIS 2262 (7th Cir. Jan. 24, 2020)

I Promise to Do Whatever

New York assemblyman Nathan Silver was convicted of seven counts of Hobbs Act extortion under color of right and honest services fraud. The evidence on three of the counts was that in exchange for payments, he promised to take action favorable to the people bribing him “as the opportunity arose.”

money170419The three counts accused Nathan of taking bribes in exchange for agreeing to help out on whatever he might be able to do for the payors in the future. The Circuit said that while bribery does not “require identification of a particular act of influence, we do agree that it requires identification of a particular question or matter to be influenced. In other words, a public official must do more than just promise to take some or any official action beneficial to the payor as the opportunity to do so arises; she must promise to take official action on a particular question or matter as the opportunity to influence that same question or matter arises.”

United States v. Silver, 2020 U.S. App. LEXIS 1737 (2nd Cir Jan 21, 2020)

Thank You For Your Service

Three 6th Circuit Judges who never served a day of their lives in the armed forces, let alone ever got shot at, reversed a one-day sentence imposed on a defendant who showed that his child pornography offense was a result of the horrific combat PTSD he suffered from the Iraq war.

service200127The defendant’s Guidelines base offense level was 15, to which the same enhancements that affect virtually every child porn defendant were added, yielding a Guideline sentencing range of 78-87 months.

The district court rejected the enhancements, complaining that “everyone” who is brought into federal court for possessing child porn receives the same enhancements, which “makes it impossible to distinguish between individual defendants.” But the Circuit held the district court failed to consider “the retributive purposes” of the enhancements, and “its disagreement with the Guidelines cannot justify its decision to ignore the delineated enhancements.”

ptsd200127What’s more, the 6th said, the sentence was substantively unreasonable. “By focusing on the defendant’s PTSD diagnosis to the exclusion of other considerations,” the Circuit said, “the district court failed to acknowledge analogous cases within this circuit… and cast the defendant more as the victim than the perpetrator, stating that his crimes were ‘the result of his voluntary service to his community and his country’ and ‘an unintended consequence’ of his decision to serve in the Army.” Dismissing the science found to apply by the District Court, the appellate panel opined that ‘knowing possession of child pornography… is not a crime that just happens to a defendant’.”

The defendant will return to the District Court for resentencing.

United States v. Demma, 2020 U.S. App. LEXIS 2326 (6th Cir Jan 24, 2020)

– Thomas L. Root

Saying It Doesn’t Make It So – Update for January 12, 2017

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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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DADDY SAYS…

Because170112Serial college football coach Terry Bowden – who spent sojourns between his many coaching gigs as a TV sports analyst – delighted in quoting his father, legendary Florida State coach Bobby Bowden. “Daddy says…” Terry would start out, and then deliver a gem of football wisdom like Moses delivering the stone tablets.

We almost regret that Bobby’s been busy the past year coaching the University of Akron Zips to a lackluster 5-7 season, because we would like hearing him tell us “Daddy says… boys without fathers wear earrings to be like their mommas…” Yeah, really. Bobby said that.

Our point is that just because “Daddy says” it, it doesn’t mean it’s so. That’s the same point the 5th Circuit made in a decision handed down earlier this week.

fraud170112Euneisha Hearns was a mortgage loan officer involved in a rather plain vanilla conspiracy. She held customers lie to get mortgages, which was something of a sport in the halcyon days before the market collapsed in 2008. In Euneisha’s case, buyer interested in purchasing property on Brownstone Court in Dallas lacked the cash for a down payment. Hearns whipped up a loan application for him that puffed the value of the place and his ability to pay, netting enough for the buyer to close the deal and use some of the loan proceeds for the down payment (sort of like a snake eating itself).

Unsurprisingly, the buyer defaulted, the false statements came to light, and Euneisha was indicted. An old lawyer we used to work with liked to say, “no thief only steals once,” and this maxim apparently held here. There wasn’t just one bad loan at Euneisha’s. There were at least ten the government knew of.

Euneisha figured she was on the hook for about $180,000 (the amount of the Brownstone loan, an amount that will probably buy a storage shed in San Francisco). But the Sentencing Guidelines let a court set the loss based on the offense itself and related conduct. The presentence report prepared after trial said the conspiracy was responsible for total loss of $866,000, which included the Brownstone loan and “loss amounts related to nine other properties.”

“What other properties?” asked Euneisha. The PSR retorted that  “the Government has identified 10 properties [including the Brownstone Property] that involved fraud in the mortgage loan process. Government records reflect that with respect to these properties… Hearns [and her co-conspirators] were all involved in the scheme to defraud.”

Ah, the “Daddy says…” gambit. The PSR otherwise provided no information or evidence to support the loss amounts or Euneisha’s involvement in the other nine deals. The government presented evidence with respect to three of these properties at trial, but the remaining six properties were not mentioned either at trial or at sentencing. Nothing in the record showed when the six remaining transactions occurred, whether criminal activity was associated with the transactions, or whether Euneisha had even heard of them. Who bother? The government says, the PSR repeats. Game, set, match.

history170112Euneisha did not offer evidence to show that she was not involved with the other properties. It would have been hard to do so, to prove a negative. It’s especially tough in loss calculation, because loss amounts “need not be determined with precision” and “all that is necessary is that the finding be plausible in light of the record as a whole.” What’s more, PSRs – which, like history, are written by the winners – are generally considered “reliable evidence for sentencing purposes.” The district court concluded that “the information contained in the presentence report has sufficient indicia of reliability to support its probable accuracy.” It held Euneisha responsible for all $866,000.

Bcorso170112ut as another sportscasters, the equally legendary Lee Corso, likes to say, “Not so fast, my friend!” This week, the 5th Circuit vacated the sentence. Sure, the Court said, “a district court may adopt the findings of the PSR without additional inquiry if those facts have an evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information is materially unreliable.” What’s more, a defendant has the burden of showing that the information in the PSR is materially unreliable.

However, the problem here is that the PSR contained no information to support the loss amounts and no evidence Euneisha had anything to do with the other transactions. The government only mentioned three of the nine properties at trial. As for the others, “the facts contained in the PSR regarding these six properties lack an evidentiary basis with sufficient indicia of reliability,” the Circuit said. “Although a PSR may be considered as evidence by the court when making sentencing determinations, bare assertions made therein are not evidence standing alone.”

negative170112The appellate panel made clear that Euneisha was not at fault for failing to disprove the PSR’s loss claim. “If the factual recitation in the PSR lacks sufficient indicia of reliability,” the Court held, “then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence.”

The case will go back for resentencing.

United States v. Hearns, Case No. 16-40222 (5th Cir., Jan. 9, 2017)

– Thomas L. Root

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