Tag Archives: supervised release

Ask Not For Whom The Time Tolls – Update for September 14, 2023

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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.

BEATING FEET

outtahere230914The fugitive tolling doctrine holds that if you are a fugitive – say as an escapee, or you jump bond – your sentence doesn’t run while you’re running. You’ve done 6 years of an 8-year sentence when you go on a furlough and don’t come back. When you’re finally caught, you still have those final two years to do (not to mention a ton of additional time for the escape).

Federal sentencing law provides not only for prison, but also for a term of what is known as “supervised release” after the sentence ends. During the term of supervised release – usually three to five years long – the former inmate is expected to keep a job, follow a list of rules imposed by the court as well as the often random and irrational diktats of a probation officer, and fill out monthly reports that are little more than traps for the unwary.

supervisedleash181107Examples, you ask? A standard condition of supervised release – imposed by the court when a defendant is sentenced – is that the person on supervised release not associate with any person convicted of a felony, unless granted permission to do so by the probation officer.  The monthly report a defendant is required to file, however, makes the sweeping inquiry, “Did you have any contact with anyone having a criminal record?”

Given that traffic offenses are mostly criminal misdemeanors, albeit minor, a defendant can hardly step outside of the house without having contact with someone with a criminal record. ‘Nitpicking’? you say. Maybe, but false statements on the form can result in the Probation Officer filing a violation report with the court that can result in additional prison time. Nitpicking under threat of imprisonment is serious business.

Statistics show that about one out of five people on supervised release are ‘violated,’ with most violations falling into the Grade C-level of violations, the least serious category reserved for things such as, say, false statements in the monthly report.

ghosting230914Jim Talley didn’t much like those odds, much less the irritation of regular meetings with his Probation Officer and filing monthly reports. After a little more than two years of supervised release, he had had enough. He simply stopped seeing his Probation Officer, stopped filing reports, and even moved without giving his PO the new address. In modern terminology,  the Probation Office got ghosted worse than the other side of a blind date from hell.

Right before his supervised release was to expire, the PO filed a violation warrant with the court.  The warrant never caught up to Jim, because – as noted – he had moved without leaving the Probation Office a forwarding address.

A year after his supervised release expired, Jim was charged with Florida domestic battery. When he got arrested, he was served with the supervised release violation. Before his hearing, the PO amended Jim’s plain vanilla failure-to-report charges to include the much more serious allegation that Jim had committed new criminal conduct by being accused of domestic battery (a Grade A violation that will buy you a boatload of more prison time).

The district court found him guilty of the supervised release infractions, and gave him an extra 18 months. Last week, the 11th Circuit vacated the sentence and sent the case back.

unsupervised211118The issue was whether the district court could punish Jimbo for new criminal conduct for a crime that happened after his supervised release expired. Applying a judicially crafted “fugitive tolling doctrine” for supervised release, the government argued that a sentencing court may toll an offender’s term of supervised release during any period that he or she evades supervision. Because Jimmy was a fugitive from 2020 until his 2022 battery arrest, the government contended, his term of supervision was on hold until he was caught rather than expiring in 2021 as scheduled.

The 11th noted that the circuits are divided over the application of “fugitive tolling” to terms of supervised release, with the 2nd, 3rd, 4th and 9th applying the doctrine. But the 11th agreed with the 1st Circuit that there is no such animal.

tolls230914The justifications for fugitive tolling in other contexts, the Circuit observed — such as prison escapes — do not apply to the context of supervised release. The fugitive tolling doctrine is meant to ensure that an original sentence is served, not to increase a sentence’s length. Endorsing the government’s theory of tolling, the 11th said, “would require us to hold that the supervised release clock stopped whenever Talley first absconded, but the sentence itself (i.e., the conditions of supervised release) remained in effect until he was found. But it makes very little sense to conclude that Talley was not subject to his supervised release conditions in May 2022 for the purposes of fugitive tolling, while simultaneously concluding that he violated his conditions of supervision at that time. As we have recognized in another context, ‘a supervised release order cannot simultaneously be suspended and actively in effect’.”

The case was remanded for resentencing on Jim’s failure-to-report violations but not the new criminal conduct battery complaint.

U.S. Probation Office, Standard Monthly Report form

U.S. Sentencing Commission, Federal Probation and Supervised Release Violations (July 28, 2020)

United States v. Talley, Case No 22-13921, 2023 U.S. App. LEXIS 23800 (11th Cir., September 7, 2023)

– Thomas L. Root

10th Says ‘No Flogging’ Supervised Release Violators – March 30, 2023

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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.

‘YOU MUST BE PUNISHED!’

punishment230330My daughter Leslie spent a year as a Fulbright Scholar teaching in Vladivostok, Russia (back in the days when Russia still held promise as a member in good standing of the benevolent world order). One evening, she was struck by a car whose driver jumped a red light.

It was the kind of automotive negligence that happens the world over, and the driver and his wife were appalled and chagrinned by the mishap, even bundling her into the car and driving her to an emergency room (she suffered a broken leg but nothing worse). Still, the next day, as Leslie lay recuperating in the hospital, her Russian friends urged her to file a police report.

Leslie resisted, because it was a cinch that the driver’s insurance – if he had any – would not begin to pay for the treatment she would need back in the USA (she had to fly home for about six weeks for the reconstruction that her knee required). She hardly saw the point in the paperwork a police report would require. But her Russian friends insisted, arguing, “He must be punished!”

Alas, the societal demand for retribution is hardly limited to Putin’s paradise, as the 10th Circuit reminded us last week.

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to 24 months in prison, the maximum time he could get under the statute.

badtrack230330To be sure, Donnie was 87 miles of bad track: While on supervised release after serving his sentence for being a felon in possession of a gun, Donnie was caught for speeding, driving without a license or insurance, and refusing to submit to sobriety testing. He tested positive for amphetamine or methamphetamine use on four separate occasions (and had some meth in his pocket when he was arrested on the revocation warrant), left the Eastern District of Oklahoma without permission on three occasions, failed to tell his probation officer about contacts with law enforcement on three occasions, and failed to appear for drug testing on five separate occasions.

When he was sentenced on the supervised release violation, the district court complained that Donnie “has shown repeated disregard for rules and condition of his supervised release. He has continued to commit new law violations and he has illegally possessed controlled substances, which he acknowledges. He has on multiple occasions failed to report to his law enforcement contact as required by the conditions of his supervision and he has also traveled outside the district of supervision without permission of his probation officer. Based upon these factors, a sentence outside the advisory guideline range is necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public.”

Last week, the 10th Circuit vacated Donnie’s sentence.

Badlaw200804Hard cases make bad law. The catch is that when sentencing someone for a criminal offense, the judge must consider the sentencing factors listed in 18 USC § 3553(a), which is a weighty list that includes just punishment for the offense, the need to protect the public, deterrence and the promoting respect for the law.

When sentencing someone who screwed up and violated their supervised release – a term which is imposed to run after release from imprisonment – the district court is required to consider only some of the § 3553(a) sentencing factors, not all of them. Under 18 USC § 3583(e), which governs revocation of supervised release , the court must sentence “after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).”

“Notably absent from this list,” the 10th noted, “is § 3553(a)(2)(A), which directs courts to consider… the need for the sentence imposed… to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

The Circuit held that “section 3553(a)(2)(A) represents ‘retribution,’ one of the ‘four purposes of sentencing’ that courts must consider when fashioning a sentence during the initial sentencing process.” Here, the district court justified Donnie’s 24-month… “in part as ‘necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public.’ By referencing the need to ‘promote respect for the law, and provide just punishment for the offense,’ the district court quoted from § 3553(a)(2)(A), the omitted factor.”

Two weeks ago, the Congressional Research Service issued one of its “Legal Sidebar” reports on supervised release sentencing, in which it noted a deep circuit split on whether retribution may play a role in sentencing on revocation of supervised release. “On one side of the divide,” the report stated, “the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.”

To the “nays” you can now add the 10th Circuit.

angels170726We’re not just counting angels on the head of a pin, either. Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “given U.S. Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts. SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

United States v. Booker, Case No. 22-7000, 2023 U.S. App. LEXIS 7312 (10th Cir. March 28, 2023)

Congressional Research Service, Can Retribution Justify the Revocation of Supervised Release? Courts Disagree (March 13, 2023)

Sentencing Law and Policy, Tenth Circuit deepens split over considering retribution in revocation of federal supervised release (March 29, 2023)

– Thomas L. Root

Balancing Accounts For Unused ETC Credits – Update for June 2, 2022

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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.

DYER STRAITS

Three and a half years ago, the First Step Act became law amid great fanfare. One of the many provisions that held great promise for all concerned was the incentive-based programming scheme, that would let federal inmates earn credits that reduced their sentences for successful completion of programs designed to address their needs.

Such a program would reduce recidivism by ex-felons, thus benefitting both them and society.

mismanagement210419Trust the Federal Bureau of Prisons to turn a high-minded program into a furball. The BOP required almost two years to propose detailed rules for the implementation of the “earned time credit” program, rules which – by the way – were draconian in their application and reasonably calculated to strangle the ETC program before it began.

It took another 14 months (and a new Administration) for the BOP to finally adopt the rules, which rules – mercifully enough – did an about-face from what was proposed. But those rules, which among other things retroactively credited inmates with credit back to the day the First Step Act passed, created a whole new raft of problems.

Problems for people like Doug Dyer.  Doug was on CARES Act home confinement in December 2021 when he filed a petition for habeas corpus, demanding immediate release due to the application of First Step Act earned-time credits to which he claimed entitlement. The BOP had not yet adopted the new rules, and predictably, told the judge that Doug had nothing coming.

nothingcoming181018But a month after Doug’s filing the BOP adopted the final ETC rules. Doug (and thousands of other inmates) were credited with 540 ETC days. The same day the rules were adopted, the BOP granted Doug immediate release from home confinement (51 days before his normal release date). The government then moved to dismiss the habeas corpus as being moot, because Doug had gotten what he wanted.

Doug opposed the government’s motion, arguing that because only he could only use 51 days of credit out of the 540 he was awarded, he should get to use the balance to reduce his supervised release time.

The district court agreed, reducing his supervised release by 489 days. The court ruled “the relevant statutory provision provides that ‘[t]ime credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in… supervised release’. 18 U.S.C. § 3632(d)(4)(C). Therefore, the unambiguous, mandatory language of the statute provides that earned-time credits may be applied to a term of supervised release.”

So Doug got a year and a half off his supervised release time (about half of what he was to serve).

I generally don’t criticize a good pro-prisoner decision like this one, but Doug’s court is just plain wrong. The Court hung its hat on 18 U.S.C. § 3632(d)(4)(C), which says

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.

There's nothing like getting your facts straight, Your Honor ...
There’s nothing like getting your facts straight, Your Honor… or the law, for that matter.

The District Court read this to mean that ETCs could be used to reduce the period of incarceration or supervised release. But the remainder of the subsection not only makes it clear that the term “supervised release” is being used as the alternative to “prerelease custody,” and that the subsection is to be read with reference to 18 U.S.C. § 3624(g).

And here’s the problem. Subsection 3624(g)(3) authorizes the Director of the BOP to “transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632.”  It does not authorize the Director to reduce the term of supervised release at all.

Read in conjunction with § 3624(g)(3), it’s pretty clear that § 3632(d)(4)(C)’s reference to “shall be applied toward time in prerelease custody or supervised release” is intended to mean the three options the BOP has for applying ETC credits: more halfway house or home confinement (the “prerelease custody” option) or release from custody up to 12 months early to begin one’s supervised release.

puzzled171201Given that no statute authorizes the BOP to reduce a prisoner’s supervised release, it’s hard to figure how a district court can grant habeas corpus to in essence demand that the BOP do so.

No matter. Doug’s supervised release was cut in half. But I strongly doubt that this decision will influence any other district court to do the same for the small subset of inmates in Doug’s position.

The opinion has not been picked up by LEXIS.

Order (ECF 16), Dyer v. Fulgam, Case No. 1:21-cv-299 (E.D. Tenn. May 20, 2022)

– Thomas L. Root

A Couple of Short Takes – Update for May 19, 2022

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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.

TIME ENOUGH FOR A QUICKIE…

Quickie #1 – FAMM Lobbies for Compassionate Release for Dublin Victims: In a letter sent last week to Deputy Attorney General Lisa Monaco, FAMM President Kevin Ring asked the Dept of Justice to recommend compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) to female Bureau of Prisons inmates who suffered sexual assault at hands of FCI Dublin corrections officials and officials.

compassion210903The letter notes that the BOP has statutory authority under U.S.S.G. §1B1.13 to identify “’other reasons,’ that alone or in combination with recognized criteria merit compassionate release. Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust. The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release.”

FAMM, Letter to Lisa Monaco (May 9, 2022)


supervisedrevoked181106Quickie # 2 – Supervised Release Violations as Double Punishment: In a first comprehensive analysis of “criminal violations” and supervised release – cases where people violate their supervision by committing new crimes – Penn State law professor Jacob Schuman argues that revocation for criminal conduct inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, he writes, prosecution without revocation is a better and fairer way to punish them.

Virginia Law Review, Criminal Violations (Feb 15, 2022)

– Thomas L. Root

Freaky Friday – Update for November 12, 2021

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NEWS OF THE WEIRD

What’s Done is Done: In the 1st Circuit, Junito Melendez was denied a First Step Act § 404 sentence reduction under the Fair Sentencing Act (FSA). Junito finished his prison sentence in 2007 and got off supervised release three years later. Unfortunately, after ten years as a free man, he is now facing a new drug conspiracy charge.

goingback211112Therein lies the problem. Junito was released from his prior 109-month sentence within 15 years of the current conspiracy charge, so he faces a mandatory 10-year minimum sentence under 21 USC § 841(b)(1)(B). But if the prior sentence were to be changed consistent with the FSA, his release date would have been much earlier, and it would thus have fallen well more than 15 years before the current case. Had that been the case, he’d be facing no mandatory minimum now.

The 1st Circuit turned him down, holding that the word “release” in 21 USC § 802(57), which defines a “serious drug felony,” focuses on the “historical facts of a defendant’s sentence when determining whether § 802(57)‘s definition is met.” Regardless of what a different, shorter sentence might have yielded, the historical fact is that Junito was released in 2007. What’s more, the Circuit said, “Congress used the phrase ‘serious drug felony’ in the statute, signaling its intent for the backward-looking language of § 802(57)… to apply to the 10-year mandatory minimum.”

There just ain’t no shortening a sentence that’s already completely in the past tense.

I Should Have Been Watching Him While He Was Watching Me: Jason Sheppard, on supervised release after a drug sentence, discovered that his girlfriend had developed a cozy “personal relationship” with his probation officer, one Jeff Sciarrino. That’s one way to keep tabs on your supervisee, we suppose.

[Read the salacious details here]

Needless to say, the discovery did not enhance Jason’s relationship with his girlfriend. They broke up over her cheatin’ heart.

breakingup211112In his grief, Jason moved for early termination of supervised release under 18 USC § 3583(e), arguing that the breakup “was negatively impacting his rehabilitation, thereby undermining any utility in continued supervision.” Jason made the rather obvious claim to the district court that “the probation officer was never concerned with [his] rehabilitation and appears to use his position for his own personal interests.”

The district court denied Jason’s motion, and last week the 3rd Circuit agreed. It held the District Court acted within its discretion to conclude that  Probation Officer Sciarrino’s amorous misconduct “has little to do with whether Sheppard should continue under the supervision of a different officer.”

The Circuit criticized the District Court, however, for holding that the PO’s misconduct “actually undermines” Jason’s motion for early termination, because the upset may interfere with Jason’s mental health treatment.” The Circuit said, “the District Court’s order includes an inference that Sheppard is responsible not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his probation officer. This inference is improper… when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight.”

Nevertheless, the Court was not very happy with the U.S. Probation Office:

A probation officer’s communications of such a “personal” nature with an assigned defendant’s significant other are not only entirely inappropriate and unprofessional, but they also undermine the primary objective of supervised release – i.e., “to facilitate the integration of offenders back into the community rather than to punish them.” It also challenges the role of probation officers as trusted government officials who, in performing their duties, are “supposed to have in mind the welfare of the probationer…” In Sheppard’s case, his probation officer implicated Sheppard’s personal life in his own — and to such a degree that, according to Sheppard, it caused him to break up with his live-in girlfriend, with whom he considered to be in a “lifelong commitment.” If this is not the antithesis to assisting Sheppard in transitioning back into the community, and having his “welfare” in mind, we do not know what is.
supervisedleash181107In all candor, I am constrained to note that even when Probation Officers act appropriately, they provide little benefit to supervisees beyond what Probation Officer Lothario provided to Jason. Supervised release is largely a snare for the unwary supervisee, with a sorry record of violating about one of three post-release folks entrusted to the Probation Office’s care.

United States v. Melendez, Case No 20-1575, 2021 U.S.App. LEXIS 31858 (1st Cir., October 22, 2021)

United States v. Sheppard, Case No 20-3088, 2021 U.S.App. LEXIS 32722 (3d Cir., November 3, 2021)

– Thomas L. Root

Two Circuits Liberalize Fair Sentencing Act Reductions – Update for August 24, 2021

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TWO FAIR SENTENCING ACT CASES GO FOR THE PRISONERS

Last week saw two unsurprising but welcome Fair Sentencing Act decisions.

In the 11th Circuit, Tony Gonzalez was serving a 51-month supervised release sentence. Originally convicted in 2005, Tony served 76 months for a crack cocaine conviction. Released in 2015, he got tripped up on substance abuse during his supervised release term and was sent back to prison.

addiction210825Tony filed for a Fair Sentencing Act retroactive sentence reduction based on § 404 of the First Step Act. His district court denied him for a couple of reasons, one of which was that he wasn’t currently serving a sentence for crack cocaine, but instead for violating his supervised release.

Last week, the 11th joined the 4th and 6th Circuits “in holding that a sentence imposed upon revocation of supervised release is eligible for a sentence reduction under § 404(b) of the First Step Act when the underlying crime is a covered offense within the meaning of the Act… Thus, the district court had the authority to consider his motion for a sentence reduction just as if he were serving the original custodial sentence. So Mr. Gonzalez is eligible for a sentence reduction under the First Step Act.”

Meanwhile, in the 8th Circuit, Jack Robinson – who was doing life for a crack offense in which he had been tagged for over 2 kilos of crack – had been denied a Fair Sentencing Act reduction by his district court. The district judge ruled that “Robinson would have been subject to the same mandatory life sentence had the Fair Sentencing Act been in effect at the time he committed the covered offense… because the revised version of § 841(b)(1)(A)(iii) provided for a mandatory life sentence if the defendant was convicted for 280 grams or more of crack cocaine and had two or more prior felony drug offense convictions,” and thus reasoned that the court was deprived “of the discretion to reduce Robinson’s sentence under the First Step Act.”

Last week, the 8th Circuit reversed. “This reasoning is contrary to the principle that the First Step Act applies to offenses, not conduct,” the Circuit said, meaning that Jack’s statutory “sentencing range under the First Step Act is dictated by the movant’s offense of conviction, not his relevant underlying conduct… Therefore, Jack’s offense of conviction — not the underlying drug quantity — determines his applicable statutory sentencing range.

life161207At his initial sentencing, Jack faced a mandatory term of life imprisonment because he was convicted and sentenced for conspiracy to distribute at least 50 grams of crack and because he had two prior drug felonies. “Under the Fair Sentencing Act,” the Circuit said, “the statutory sentencing range for his conspiracy to distribute 28 grams or more of crack cocaine, including his prior convictions, is now not less than 10 years and not more than life. Thus, the district court erred as a matter of law when it relied on the sentencing court’s drug quantity finding of 2.35 kilograms of crack cocaine to determine Jack’s applicable statutory sentencing range under the Fair Sentencing Act and the First Step Act.”

United States v. Gonzalez, Case No 19-14381, 2021 U.S.App. LEXIS 24765 (11th Cir., August 19, 2021)

United States v. Robinson, Case No 20-1947, 2021 U.S.App. LEXIS 24603 (8th Cir., August 18, 2021)

– Thomas L. Root

8th Circuit Says Supervised Release Violation Hearing Still Has Some Due Process Left – Update for August 9, 2021

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(HEAR)SAY WHAT?

Hearsayevidence210809Once a federal prisoner is released, he or she spends a period of several years (on the average) on “supervised release,” under which he or she is supervised by a United States Probation Officer who (often enough) lives to declare that the former prisoner has violated the terms of supervised release and should be sent back to prison. It is not surprising that about one out of three people get “violated” at least once during their terms of supervised release. Not all get sent back to prison, but enough do.

When the former prisoner is declared to have violated supervised release, a hearing is held that seems pretty short on due process guarantees. One of the most pernicious attributes of the hearing (besides the low standard of proof required, a mere 51% “preponderance of the evidence” standard) is hearsay.

Very simply, hearsay is any testimony about a statement made by someone not present in the courtroom introduced to prove the matter asserted. If defendant Larry Lowlife is accused of stealing candy from a baby, a witness’s statement that “my mother told me she saw Mr. Lowlife take the candy bar from the baby would be hearsay” if the statement is intended to prove Larry’s guilt.

Such testimony is generally not admissible, because – at least in criminal trials – it denies a defendant his or her 6th Amendment right to confront witnesses. Maybe Mom was standing 200 yards from Larry and the baby. Maybe Mom stood to make a lot of money writing a book about Larry’s theft. Maybe Mom took the candy, and was trying to deflect blame. If Mom is not present to testify, Larry can’t mount a defense.

hearsay210809To be sure, there are dozens of exceptions to hearsay, from excited utterances to dying declarations. That’s for law school evidence class. For now, it’s enough to understand that hearsay can be dangerous and that courts have been all too willing to allow it to send people back to prison.

People like Derone Coleman. Derone’s Probation Officer moved to revoke his supervised release after his former squeeze Kippie House complained of a more current “squeeze.” She said Derone “squeezed” her around the neck, choking her, biting her on the face, and pulling a gun on her while reminiscing about their prior relationship.

Kippie’s cousins were present for the alleged assault, giving the government an impressive witness list at Derone’s supervised release violation hearing. But Kippie had moved, and she and her cousin Lashonda made themselves scarce when the PO tried to subpoena them. What’s more, after reporting Derone to the Probation Officer, Kippie declined to press charges locally.

The government told the court that its “efforts to serve” Kippie and Lashonda “have been unsuccessful,” and instead offered three other witnesses, who could only recount what Kippie or Lashonda had told them. Derone objected to the hearsay evidence, arguing that he had a right to confront his accusers. The district court disagreed, holding that the government’s explanation showed there was good cause for House’s absence at the revocation hearing. The district judge had his own doubts about the photo evidence of Kippie’s alleged injuries, but even so he viewed the photos as consistent with what the witnesses said Kippie had told them about the assault.

The district court revoked Derone and gave him 60 months.

Last week, the 8th Circuit reversed. Although at the revocation stage, a defendant has less than the full panoply of protections afforded by the rules of evidence, he or she is still entitled to the “minimum requirements of due process.” Among those requirements is the right to confront and cross-examine adverse witnesses, the 8th said, “unless the hearing officer specifically finds good cause for not allowing confrontation.”

dodgesubpoens210809“In assessing whether a defendant should have been allowed to confront an adverse witness,” the Circuit ruled, “we balance his due process rights against the grounds asserted by the government for not requiring confrontation.’” To show good cause for denying a defendant his confrontation rights, the district court needed to assess the government’s reason for not producing Kippie; and the reliability of the hearsay offered in place of her testimony. “The government needed to show both prongs,” the Circuit said. “A failure under either prong negates good cause.”

Generally, unless a witness has moved out of state, the government has no excuse for not producing her to testify. Here, the government argued that the Probation Officer had tried to call Kippie without success. The 8th observed, “If we were to adopt the government’s position, then we would effectively equate missed calls to an interstate move.” While witnesses who refuse to testify out of fear have been excused in the past, the Circuit noted, while Kippie “changed her mind about pressing charges… nothing in the record suggests she refused to comply with a subpoena or said that she would not testify.”

Beyond that, the 8th said, the government never established a causal link between the photographic evidence and the hearsay. Derone argued Kippie, as a jilted girlfriend, had a motive to get Derone locked up. The government argued on the other hand that the very fact Kippie refused to press charges meant that she knew her honest testimony would lock up someone she still cared about, and thus her failure to testify actually corroborated her testimony.

The Circuit punted on those arguments, dryly noting that “regardless of the truth of Kippie’s out-of-court allegations, the government needed to offer additional indicia of reliability when a possible motive to implicate Derone indisputably existed.”

The 8th told the district court to cut Derone loose.

United States v. Coleman, Case No 20-2623, 2021 U.S.App. LEXIS 23037 (8th Cir., Aug. 4, 2021)

– Thomas L. Root

3rd Circuit Says Nothing Extraordinary in Supervised Release Early Termination – Update for October 20, 2020

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WE MAY HAVE MISREAD THAT, THE COURT SAYS…

supervisedrelease180713Supervised release is a period after a federal inmate completes his or her prison sentence – a lot like parole and kind of like probation – during he or she is subject to a series of reporting conditions and limitations imposed by the court. A U.S. Probation Officer supervises the former inmate, and holds the power to seek revocation of supervised release and return to prison under evidentiary and procedural standards that are rather lax, to say the least.

Fortunately for the former inmate, under 18 USC § 3583(e), someone on supervised release can get that supervision term ended early. The statute requires the court, in deciding whether to terminate early, to apply the 18 USC § 3553(a) sentencing factors. No surprise there, but many courts have been buying into the government’s argument that just being good while on supervision isn’t enough: the movant has to show something extraordinary or exceptional justifying saving the government money and the former inmate aggravation.

supervisedleash181107Aggravation? Well, yes. The former inmate must make monthly filings detailing his or her finances, purchases and employment. He or she cannot leave the federal district without permission of the Probation Officer. Often, he or she cannot change jobs without the Probation Officer’s OK, and woe betide anyone who has an unreported contact with someone who has a criminal record (that would be one out of three adult Americans). Oh, yes, the Probation Officer can search the former inmate’s home at any time without a warrant.

supervisedrevoked181106Nationally, the rate of violations that result in a hearing before the judge (where return to prison is a possibility) is about 17%.  The prevalence of supervision violations, however, varies considerably among the federal judicial districts. In a July 2020 U.S. Sentencing Commission study, more than a third of individuals on supervision risked reimprisonment in violation hearings in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%). In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).

No wonder people on supervised release want to “get off paper,” as they put it. But few can meet the “extraordinary or exceptional reason” for early termination standard many courts impose.

Last week, the 3rd Circuit traced the twisted history of this “extraordinary or exceptional reason” requirement, and found no support for the standard.

The 3rd acknowledged that its prior non-precedential decisions had required “something exceptional or extraordinary” to warrant early termination, relying on the Second Circuit’s United States v. Lussier decision. “But this was a misreading of Lussier,” the 3rd Circuit said, in a rare acknowledgement that it had previously been wrong:

As the Second Circuit explained more recently, ‘Lussier does not require new or in order to modify conditions of release, but simply recognizes that changed circumstances may in some instances justify a modification’. In other words, extraordinary circumstances may be sufficient to justify early termination of a term of supervised release, but they are not necessary for such termination. We think that generally, early termination of supervised release under § 3583(e)(1) will be proper only when the sentencing judge is satisfied that new or unforeseen circumstances warrant it. That is because, if a sentence was ‘sufficient, but not greater than necessary’ when first pronounced, we would expect that something will have changed in the interim that would justify an early end to a term of supervised release. But we disavow any suggestion that new or unforeseen circumstances must be shown.”

Got that? “Extraordinary or exceptional reasons” no longer necessarily apply, except when they generally do.

money160118Each person being supervised costs the government about $4,400.00, according to the Administrative Office of United States Courts. You’d think that saving that money might be a factor for more courts, especially where there is no discernible benefit to the supervisor or supervisee by continued oversight.  

But then, what’s $4,400 a year, even when multiplied by the 133,000 people under supervision?  Answer: a half billion a year, a mere flyspeck to Uncle Sam.

United States v. Melvin, 2020 U.S. App. LEXIS 32683 (3rd Cir. October 16, 2020)

– Thomas L. Root

One Court Gives, Another Takes on Supervised Release – Update for February 26, 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.

P.O. KNOWS BEST, AND OTHER STORIES

A pair of supervised release condition cases last dramatically broadened defendants’ protections against probation officers running amok, but greatly narrowed the window defendants have to challenge those conditions.

supervisedrelease180713First, a little background: In the Sentencing Reform Act of 1984, Congress decreed that virtually all persons convicted of a federal criminal offense who were sentenced to prison would also serve a term of supervised release – during which they would be subject to limitations on travel and association, to regular reporting requirements, and to oversight by a probation officer – after the prison sentence ended.

Thus, supervised release is similar to what used to be parole. The conditions of supervised release are imposed by the district judge at sentencing, at which time the defendant – focused entirely on the impending prison term – hardly ever pays attention to the many ambiguities and indignities that the supervised release terms (a number of which are of dubious constitutionality) will impose on him or her after prison is but an unpleasant memory.

Now back to the live action: One of the supervised release conditions imposed on Shawn Lee, who was convicted of settling meth, prohibited him from “knowingly meeting, communicating, or otherwise interacting with any person whom she knows to be a convicted felon… unless granted permission to do so by the probation officer.” He appealed the supervised release condition, arguing that it was an improper delegation of Article III power by the court to the probation officer, and that – because Shawn’s two sons were also convicted felons (it appearing to run in the family) – it meant the PO could keep Shawn from seeing his own offspring.

Federal judges are known as “Article III judges,” because they are appointed by the president and confirmed by the Senate under Article III of the constitution, which give them (and only them) the power and duty of imposing punishment on a defendant. While an Article III judge may task a probation officer (who is not an Article III judge) with “performing ministerial acts or support services related to the punishment imposed,” the non-delegation rule prohibits the judge from allowing a probation officer to decide the nature or extent of a defendant’s punishment.”

supervisedleash181107Last week, the 7th Circuit ruled the supervised release condition went too far. “The probation officer’s future task, then, is not merely to manage or supervise, but to determine whether, when, and how a particular component of Lee’s punishment is imposed.” The condition “anoints the probation officer with the sole authority for deciding if” Shawn can even see his own kids.

“Article III does not confer upon the probation officer the authority to release a convict from a component of his or her sentence, either,” the court said. “The clause ‘unless granted permission to do so by the probation officer’ violates this principle and must be stricken… only the district judge can permit or deny association.”

Supervised release conditions are usually chock-a-block with delegations of power to the PO. This decision suggests that most of those are constitutionally flawed. But before inmates fire up their law library typewriters, they should consider a 6th Circuit decision, also from last week.

Robert Faber complained that his supervised release conditions did not let him live with his Wiccan religion “spouse.” He filed an 18 USC § 3583(e)(2) motion to modify the condition, arguing it violated the Religious Freedom Restoration Act.

The district court denied the motion, and Bob appealed.

Last week, the 6th Circuit held that it lacked jurisdiction. Under § 3583(e)(2), a district court may modify or rescind a condition of supervised release after considering certain enumerated factors, including “the circumstances of the crime, the characteristics of the defendant, deterrence, protecting the public, providing the defendant with training and education, and others,” the Circuit said. “Not included: illegality of the condition.”

time161229Under the Sentencing Reform Act of 1984, the right to challenge an illegal sentence under F.R.Crim.P. 35(a) was cut, requiring defendants to move for such relief within just 14 days after sentence. “Construing § 3583(e)(2) as allowing district courts to eliminate an allegedly illegal condition at any time would disregard the plain text of the statute and frustrate Congress’s intent to encourage timely challenges.”

Bob could have appealed the condition, claiming illegality. He could have filed a timely Rule 35(a) motion. But he did not. He can argue under 18 USC § 3582(e)(2) that the supervised release condition should be set aside for any number of reasons, but the condition’s illegality is not one of them.

United States v. Lee, 2020 U.S. App. LEXIS 4944 (7th Cir. Feb. 18, 2020)

United States v. Faber, 2020 U.S. App. LEXIS 5063 (6th Cir. Feb. 19, 2020)

– Thomas L. Root

Retroactive Crack Law Applies to Some Completed Sentences, 6th Says – Update for February 11, 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.

ANOTHER CIRCUIT RULES SUPERVISED RELEASE DEFENDANT ELIGIBLE FOR RETROACTIVE FAIR SENTENCING ACT CUTS

The 6th Circuit joined the 4th last week in ruling that a defendant now serving a prison term for violating supervised release could apply for a retroactive sentencing cut under the Fair Sentencing Act, despite the fact he had completed serving the underlying crack cocaine sentence.

supervisedrevoked181106Aaron Woods served 120 months after being convicted in 2001 for distributing crack. After he was released, he was on supervised release for five years, during which time he caught a state marijuana case. His SR was violated, and he was sent back to federal prison for another 37 months for the revocation.

Aaron applied under the First Step Act for retroactive application of the 2010 Fair Sentencing Act sentence cut. The district court held he was ineligible because his current sentence was for violating SR, not for crack.

The 6th disagreed. “Postrevocation penalties relate to the original offense,” the Circuit held. Treating “revocation and reimprisonment as punishment for the violation of the conditions of supervised release” instead of a continuation of the original offense would raise “serious constitutional questions, such as double jeopardy concerns.” Therefore, Aaron was eligible for an FSA sentence cut.

United States v. Woods, 2020 U.S. App. LEXIS 3462 (6th Cir. Feb. 4, 2020)

– Thomas L. Root