GAN Defenders Blog

2011-09-19T22:18:00.010-04:00

Contact Jenny Moore for more information at

404-688-7530 or Jenny_Moore@fd.org.

Today's Supreme Court Opinions

2011-05-26T14:39:00.002-04:00

The following opinions were issued in the Supreme Court today:

Fowler - The federal witness tampering statute applies only if it was likely the information would have been communicated to a federal officer.

Camreta - The Fourth Amendment case about seizing and interviewing suspected child victim of abuse without warrant - mooted out due to child's current age, but lots of justiciability and qualified immunity procedure.

Tinklenberg - Speedy Trial Act - time for disposition of motions is excluded, irrespective of whether motion might actually cause delay in proceedings, but over ten days for transport for competency excluded. Weekends and holidays are counted in calculating the ten days. Affirmed dismissal.

En Banc Relief Denied by Eleventh Circuit

2011-05-19T13:49:00.018-04:00

Today, the Court of Appeals issued a 105 page opinion in Ezell Gilbert v. United States of America, No. 09-12513, overruling the original panel's decision granting habeas relief to Mr. Gilbert. Mr. Gilbert, who has served more than fourteen years in prison, sought release from custody because one of the convictions that made him a Career Offender was ruled not to be a "crime of violence". United States v. Archer, 523 F.3d 1347 (11th Cir. 2008). As a result of that ruling, his sentencing guideline range was substantially reduced from 292 - 365 months down to 151 - 188 months. Mr. Gilbert raised this issue years earlier in his direct appeal, but failed to allege it in his pro se Section 2255 petition filed in 1999. The en banc panel ruled that the Savings Clause of Section 2255 (e) does not permit a defendant to bring a Section 2241 petition to remedy a guidelines miscalculation that would be barred by the "second or successive motions" prohibition of Section 2255(h).
Senior Judge James C. Hill stated in his dissenting opinion that "[t]oday, this court holds that we may not remedy such a sentencing error. This shocking result - urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice - and accepted by a court that emasculates itself by adopting such a rule of judicial impotency - confirms what I have long feared. The Great Writ is dead in this country . . . The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also."
Mr. Gilbert, who was released from custody pending en banc review, has been ordered to immediately surrender.

- RCS

New York Case Underscores Wi-Fi Privacy Dangers.

2011-04-25T09:56:00.002-04:00

Click here for link to the AJC story.

Proposed Guideline Amendments

2011-04-25T09:45:00.000-04:00

The Sentencing Commission has proposed amendments to the Sentencing Guidelines. You may find them by clicking here: http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20110119_RFP_Amendments.pdf.

There are at least two notable defense friendly amendments:
1. Elimination of supervised release for many deportable aliens, except in cases of mandatory supervised release terms such as in drug cases. See page 79 of the document linked above.
2. Offense level relief on old illegal reentry enhancement predicates. If a conviction is too old to count for criminal history points then it would count for at most an eight offense level bump. See page 87 of the document linked above.
3. The emergency crack amendments are also re-issued as regular guideline changes with some tweaks.

NK

Eleventh Circuit Applies Padilla to Civil Commitment Under State Law

2010-09-15T10:33:00.001-04:00

In Bauder v. DOC Florida, the Eleventh Circuit, citing Padilla, affirmed the grant of a 2254 petition based on ineffective assistance of counsel in advising client that plea to aggravated stalking of minor would not subject him to involuntary civil commitment under Florida law.

Eleventh Circuit rules that possession of a short barreled shotgun under Florida law is not a violent felony predicate under the Armed Career Criminal Act.

2010-09-11T09:40:00.001-04:00

On Wednesday September 8, 2010, in United States v. McGill, 14167 (11th Circuit), the Eleventh Circuit ruled that possession of a short barreled shotgun under Florida law is not a "violent felony" under the Armed Career Criminal Act. In order to qualify as a violent felony under the Armed Career Criminal Act, a prior conviction must meet the statutory definition which provides that such an offense must be a felony that (i) “has as an element” the actual, attempted, or threatened use of force against another person; or (ii) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B).

The Supreme Court opinion in Begay establishes a three step process for determining whether a particular prior conviction qualifies as a violent felony:

(1) The offense is to be considered generically according to the elements required for conviction.

(2) The court must determine whether the generic offense “involves conduct that ‘presents a serious potential risk of physical injury to another.’”

(3) If the offense does present such a risk, the court determines whether that risk is “roughly similar, in kind as well as in degree of risk posed,” to the clause’s example crimes: burglary, arson, extortion, and the unlawful use of explosives.

In McGill's case, the Eleventh Circuit found that possession of a sawed off shotgun did present a risk of physical injury to another. However, the panel found that the analysis did not survive the third step because possession of a sawed off shotgun did not present a risk similar in degree and kind to burglary, arson, extortion, or the use of explosives. Particularly significant was the similarity between possession of explosives and possession of a sawed off shotgun. However, Congress chose not to include possession of explosives, only use of explosives.

The Eleventh Circuit therefore rejected the Government's appeal and affirmed the sentence and ruling of the Middle District of Florida.

Cracking the Crack Code: Fair Sentencing Act of 2010

2010-08-27T13:01:00.000-04:00

On August 3, 2010, the President signed the Fair Sentencing Act of 2010 (S. 1789), reducing the statutory sentences for crack cocaine offenses. The 100 to 1 disparity between crack and powder cocaine sentences has been reduced to 18 to 1. The statutory penalties for powder cocaine offenses remain the same. Now, 28 (as opposed to 5) grams of crack calls for the mandatory minimum five-year sentence, and 280 (as opposed to 50) grams of will trigger the mandatory minimum ten-year sentence. Also, the five-year mandatory minimum for simple possession of crack cocaine has been eliminated. The reduced penalties, however, are not retroactive.

The purpose of the Act is to “restore fairness to Federal cocaine sentencing” by reducing the crack / powder disparity to 18:1. Attorneys in the Northern District of Georgia may be wondering whether the Act applies to their cases where the criminal conduct transpired under the old act; and, at the time of enactment, their case is pre-plea, post plea, or currently on appeal.

Whenever there has been a statutory change in the law, the general rule is that the new statute governs cases pending on the date of its enactment unless manifest injustice would result or there is statutory direction or legislative history to the contrary. United States v. Schumann, 861 F.2d 1234, 1238 (11th Cir. 1988); United States v. Kolter, 849 F.2d 541, 543 (11th Cir. 1988); Bradley v. School Board of Richmond, 416 U.S. 696, 711-14, 94 S.Ct. 2006, 2016-17, 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (Former 5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir.1979), cert. denied, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980). Manifest injustice would result if a defendant does not receive the benefit of a law enacted to restore fairness to crack cocaine sentencing. There is no statutory direction or legislative history to the contrary in the FSA. In fact, the FSA was enacted “[t]o restore fairness in Federal cocaine sentencing.” P.L. 111-220.

If your client’s case is in the district court, or on appeal, it is considered pending and not yet final on the date of the FSA’s effective date , August 3, 2010. United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); Griffith v Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987)("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past"). Consequently, the FSA should apply to all cases that are pending and not yet final.

Thanks to our colleagues Lynn Fant and Victoria Brunner for this post.

BREAKING NEWS: Bruce Morris gets 19 Not Guilty Verdicts !!!!!!!!!!!!!!!!!!!

2010-08-25T08:29:00.003-04:00

Bruce Morris represented a client who was the last one standing in the the long-running Home Depot fraud prosecutions. AUSAs Barbara Cash and John Fitzpatrick, from the Antitrust Division, argued that the client had paid kickbacks to a Home Depot employee to get business contracts. Bruce's defense was that his client did indeed share his commissions with the Home Depot employee, but he did not conspire to defraud Home Depot. Bruce told the jurors that while what his client may have been unethical, he did not violate the wire fraud and mail fraud statutes.

The trial judge summoned Bruce and his client to return to the courtroom after a mere 30 minutes of deliberations to hear the sweet melody of "not Guilty" read nineteen times over!!

Congratulations to Bruce Morris who stood his ground and prevailed.

(Our thanks to Colette Resnik Steel who provided the post text.)

It seems this year's Acquittal Club is growing!!!

Space Remains for CJA Panel Attorneys and Federal Defender Staff

2010-08-04T10:35:00.002-04:00

For the Multi-Track Federal Criminal Defense Seminar and the Fundamentals of Federal Criminal Defense Training, to be held in Miami, FL, Thursday to Saturday, August 12-14, 2010, and Thursday, August 12, 2010,respectively. Both programs are free to CJA practitioners.

Florida has approved the Multi-Track program for 17.50 general CLE credit hours, 1 hour of ethics, and 1 hour of mental awareness. It has approved the Fundamentals Track for 8.5 general credit hours. Alabama has approved the seminar for 22.3 general credit hours and 1 hour of ethics. Georgia has approved 21.25 hours of general credit and 1 hour of ethics.

The seminar is designed to offer in-depth instruction in a variety of substantive criminal defense topic areas. Five of the tracks - Fraud, Computer Crimes, Immigration, Sentencing and Forensics - will be presented in four distinct hour-long time blocks that are each presented twice, providing seminar participants with the opportunity to attend two of the five separate tracks taking place on
Thursday and Friday. On Saturday, additional valuable topics will be presented that are of general interest and importance to criminal defense practitioners. Past attendees wrote about this programs: "Learned lots of tips and strategies;" and "Excellent! Great presentations and very important information."

On Thursday, August 12, 2010, there will be a full, one-day training - Fundamentals of Federal Criminal Defense - specifically designed for practitioners who are new to federal criminal defense practice. It will provide them the opportunity to receive instruction on the areas most vital to providing an effective defense for their clients.

A description and agenda can be found on the Training Branch's web site, www.fd.org, where one can also register for the seminars(participants should register separately for Multi-Track and the Fundamentals Training if they intend to attend both).

For questions about the substance of the program, please contact Eric Vos at Eric_Vos@ao.uscourts.gov. For questions about logistics, please contact Jenna Shepard at Jenna_Shepard@ao.uscourts.gov.

BREAKING NEWS: Retrial in the Dunbar Armored Car Trial Ends in Acquittal!

2010-08-02T16:33:00.000-04:00

Congratulations to Federal Defender Staff Members Suzanne Hashimi and Lewis Robinson as well attorney Victoria Bruner on this victory! Great job!

- MF

Dunbar Armored Car Robbery Trial Ends in Hung Jury

2010-07-12T18:15:00.002-04:00

Last week, a federal jury was discharged after explaining that they were unable to reach a unanimous verdict as to whether the Government had met their burden of proof in a case involving the armed robbery of a Dunbar armored car. Judge Duffey discharged the jury and declared a mistrial. The case is scheduled to be retried in several weeks.

Sentencing Commission Data Reveals Trend in Child Porn Sentencing

2010-07-12T15:40:00.006-04:00

Sentencing Commission data reveals that judges impose below-Guidelines sentences in roughly 51% of sentences in the Eleventh Circuit and nationwide for child pornography offenses. The average variance is approximately 40% below the advisory Guideline range. See the link below to access the Commission's data tables.

http://sentencing.typepad.com/sentencing_law_and_policy/2010/06/fascinating-data-on-recent-trends-and-circuit-specifics-for-federal-child-porn-sentences.html

-NK

Practice Advisory: The 2010 11th Circuit Criminal Jury Instructions are Available Online - See link below.

2010-07-03T09:16:00.002-04:00

Please be advised that the Eleventh Circuit has revised its pattern criminal jury instructions book. A link to the pdf version is HERE. There is also a wordperfect version available here and on the Eleventh Circuit's website.

Supreme Court announces Second Amendment applies to the States

2010-06-28T11:38:00.030-04:00

Today, the Supreme Court announced that the Second Amendment right to bear arms is applicable to the States. (McDonald v.Chicago, 08-16521 (2010)). The 5-4 ruling, which relies on District of Columbia v. Heller, 554 U.S.____ (2008), reverses the Seventh Circuit's finding that restriction of an individual's right to keep and bear arms was not violative of the Second or Fourteenth Amendments. The opinion provides an exhaustive legislative review of post-Civil War regulations drafted to prohibit freed slaves from possessing firearms and the state-created limitations that were subsequently approved.

-RCS

High Profile Visitors Convene at the Russell Building for the Swearing In Ceremony of Sally Yates as United States Attorney

2010-06-11T18:10:00.000-04:00

Sally Q. Yates was officially sworn in today as the United States Attorney for the Northern District of Georgia after remarks from past United States Attorneys from this district as well as the Attorney General of the United States, Eric Holder. Chief Judge Julie E. Carnes presided over the ceremony and administered the oath. Reverend Joseph Lowery and Congressman John Lewis attended the event along with numerous judges and other dignitaries from all over the state. Sally is the first female United States Attorney for this district. The bible was held by her husband, Comer Yates, and their children.

New Atlanta FDP Attorney Morad Fakhimi Honored by the National Association of Federal Defenders as the Outstanding Research Attorney of the Year!

2010-06-10T17:08:00.000-04:00

Morad Fakhimi joined the Atlanta Federal Defender Program, Inc. as a Staff Attorney last month after having worked in both the Macon and Montgomery Federal Defender offices. Morad worked primarily as an appellate attorney for the past 24 months in the Middle District of Georgia. In this capacity, Morad wrote thousands of pages of briefs and became extremely well versed in appellate advocacy. We were proud to have him become a colleague in Atlanta in May and we congratulate him on this high honor on the national defender stage.

-SK

Confrontation Clause violation requires reversal

2010-06-09T10:26:00.023-04:00

On Tuesday, June 8, the Eleventh Circuit ruled that a defendant's Sixth Amendment right to confront the state's cooperating witness was violated when the state trial court limited the scope of defense counsel's cross-examination. In Childers v. Floyd, 08-15590, the cooperating witness, whose sentence was being reduced from 125 years in prison to 18 months, began to alter his testimony on matters defense counsel deemed crucial to his defense. Although the trial court allowed defense counsel to cross-examine the witness on several inconsistent statements, he was prohibited from fully exploring his motive for amending his previous testimony. The panel emphasized "...the particular importance of searching cross-examination of witnesses who have substantial incentive to cooperate with the prosecution...and [the] heightened need for full cross-examination to unearth possible bias."

-RCS

Eleventh Circuit Finds Confession Involuntary Where Officer Promised Not to Prosecute

2010-05-30T20:50:00.004-04:00

On Friday, in United States v. Lall, Case No. 09-10794, two statements and physical evidence were deemed subject to suppression because the state officer who questioned Mr. Lall promised he would not bring state charges. The evidence was turned over to the Secret Service and Lall was prosecuted and convicted of credit card fraud. The Court of Appeals reversed and remanded.

The full opinion is available at this link.

http://www.ca11.uscourts.gov/opinions/ops/200910794.pdf

United States Sentencing Commission conducted public hearing on mandatory minimums on May 27, 2010.

2010-05-28T07:17:00.001-04:00

Click here for the official press release regarding the public hearing on mandatory minimums held by the United States Sentence Commission. The United States Attorney for the Northern District of Georgia testified at the hearing. See post below for testimony.

- NK

CNN Features ATF Agent Who is Suffering Retaliation as a Whistleblower

2010-05-27T16:20:00.002-04:00

Some of you may remember ATF agent Vincent Cefalu who used to be a senior agent in our district. ATF Special Agent Cefalu was featured on CNN last night, complaining that he has been put in a job with little or nothing to do because he's the victim of retaliation by ATF management. Agent Cefalu said that management turned against him after he reported what he believed to be an illegal wiretap plan in a RICO case in 2005. Cefalu added that following his reporting the perceived illegality in 2005, a series of retaliatory measures ensued resulting in his being assigned to a desk job with little or nothing to do on a daily basis. Read the full story here: http://www.cnn.com/2010/POLITICS/05/26/atf.whistleblowers/index.html.

- JW

New Attorney General Memorandum to AUSA's provides guidance for charging and sentencing decisions which gives more flexibility than the now superseded "Ashcroft Memorandum."

2010-05-27T16:00:00.001-04:00

On May 19, 2010, Attorney General Eric Holder issued a memorandum to all federal prosecutors to provide guidance on charging decisions and sentencing positions. Previously there was a memorandum done by former Attorney General Ashcroft which was rigid in its approach to Government positions on charging decisions and sentencing positions. The new memorandum by Attorney General Holder supersedes the Ashcroft Memorandum and takes a more flexible approach. Proscecutors are still required to seek uniformity and fairness and to charge changing the Department of Justice’s policy to guide federal prosecutors in their charging and sentencing decisions. This memorandum provides more flexibility to the prosecutors than the previous "Ashcroft Memorandum" that has long been in place. It instructs that "Charging decisions should be informed by reason and by the general purposes of criminal law enforcement...." Significantly, where "'no substantial Federal interest' would be served by a conviction, prosecutors have the flexibility to not bring charges. However, this situation would be an exception and not be typical. The memorandum is available in its entirety HERE from the Sentencing Law and Policy blog. It is a must read for those who practice in our district who want to understand what factors might persuade an AUSA to take a more moderate stance on a case.

- BM

Supreme Court rules machinegun provision of Section 924(c) is element which must be proven

2010-05-27T12:14:00.008-04:00

On May 24, the Supreme Court held that the machinegun provision of 18 U.S.C. Section 924(c)(1)(A)(i), which imposes a 30 year mandatory minimum sentence when that type of weapon is used during the commission of certain felony offenses, is an element of the offense that must be proved to a jury beyond a reasonable doubt rather than a sentencing factor to be proved by a preponderance of the evidence to a judge at sentencing. United States v. Martin O'Brien and Arthur Burgess, No. 08-1569 (2010). Although this was a unanimous decision, Justice Thomas (with Justice Stevens joining) reiterated his view that "...if a sentencing fact either 'raises the floor or raises the ceiling' of the range of punishments to which a defendant is exposed, it is, 'by definition [an] element" and that the Constitution prohibits the type of judicial fact-finding that occurred in O'Brien.

-RCS

CJA Panel Attorney Victory at Trial

2010-05-25T17:05:00.006-04:00

On May 20, 2010, Carlos Maldonado, who was represented by CJA Panel Attorney William Hollingsworth, was found not guilty. Mr. Maldonado was charged, along with six co-defendants, with attempting to distribute 5 kilograms of cocaine. Federal agents found the drugs in a hidden compartment of a vehicle driven by one of the men. The other six men had been following this vehicle and were also arrested. All of the men, except Mr. Maldonado, pled guilty. Three of the co-defendants testified against Mr. Maldonado as required by their negotiated pleas. Attorney Hollingsworth argued that Mr. Maldonado had no knowledge of the drugs, was not involved in the attempted distribution and was simply a passenger in the vehicle. The jury acquitted him after a four day jury trial before Judge Richard W. Story. (United States v. Maldonado, 2:09-cr-00022-RWS-SSC-4).

Congratulations to William on this defense victory!

-RCS

11th Circuit Reversal: Arizona aggravated assault conviction does not qualify for guidelines enhancement where the state statute did not require mens

2010-05-25T10:52:00.004-04:00

On Friday, the Eleventh Circuit reversed the sentence of an undocumented immigrant in United States v. Garcia, No. 09-10534 (11th Cir. May 21, 2010) (Martin, J.).

In Garcia, the defendant's conviction for illegal reentry into the U.S. was affirmed where the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds. However, the sentence was reversed, because the district court committed error by enhancing defendant's sentence based on his conviction for aggravated assault under Arizona law where the Arizona statute did not require mens rea higher than recklessness. Judge Martin, writing for the court, stated

By this argument, the government underestimates the talents and the industry of district judges. A 16-level enhancement under § 2L1.2 frequently corresponds to a Guidelines range that is higher by years than it otherwise would have been. Our courts are neither so indolent nor so divorced from this Nation’s foundational principles to jail people for years longer, only because it would be easier to blindly defer to the definitional “vagaries of state law."

. . . .

Both in the context of 18 U.S.C. § 16 and the almost identically worded definition of “crime of violence” under § 2L1.2 of the Guidelines, these courts have held that crimes with a mens rea of recklessness are not “crimes of violence.”

-RCS

Citizen's Review Board Releases Report on Kathryn Johnston Incident Sharply Critical of APD Officers and the APD Quota System

2010-05-24T15:19:00.002-04:00

The Citizen's Review Board which was tasked with reviewing the Kathryn Johnston incident released a report of its findings. It is worthwhile to review the entire report. The link is here.

The report is critical of certain practices of APD officers and also the quota system of APD. There are recommendations concerning the working of extra jobs as well. However, even a cursory read of the report will reveal disturbing practices found by the board to include "handoffs," a term used to refer to officers handing off their own personal observations in an investigation to be passed of as the observations of another officer in the investigation. This report is a must read for defense attorneys who handle cases initiated by the Atlanta Police Department.

The report states that "It is a mistake to characterize the misconduct as the few acts of 'rogue officers' or 'bad apples' ... because that allows an organization to avoid looking at systemic problems."

Click here for a link to the WSB's article.
Click here for a link to the Atlanta Journal Consitution's article.

-RCS

CJA Panel Attorney Victorious in Motion to Suppress Evidence From Alleged Consent Search

2010-05-24T15:14:00.003-04:00

On May 17, 2010 Thomas Wooldridge, a Northern District of Georgia CJA panel attorney, earned a dismissal for his client on all charges! The Government had alleged Mr. Lara-Gonzalez (United States v. Lara-Gonzalez, 1:09-CR-510), was involved in a major drug conspiracy and possessed weapons to further that conspiracy. However, the Government's case against Mr. Lara depended substantially on evidence seized pursuant to an alleged consent search. Mr. Wooldridge challenged the evidence at a suppression hearing held in this district and then followed with extensive briefing. A Report and Recommendation recommending suppression of the evidence followed.

In the Report and Recommendation, the Magistrate Judge explained:

The agents’ persistence in approaching and knocking on the door with visible weapons would communicate to a reasonable occupant, and did communicate to Defendant Ignacio, that he was not free to ignore the officers. These and the other coercive elements weigh against a finding of voluntary consent. …

Considering the totality of the evidence, including Defendant Ignacio’s testimony, I find that the circumstances here were more indicative of submission to a claim of lawful authority than to a voluntary consent.

The Magistrate Judge recommended suppression of the evidence found in the search and the statement made by Mr. Lara-Gonzalez. Afterwards, the government dismissed. Mr. Lara-Gonzalez will still be deported, but no longer has to worry about spending the next 20 years in prison.

Congratulations and great work, Thomas!

- RCS

Supreme Court holds that sentence of life without possibility of parole violates the Eighth Amendment for juvenile non-homicide defendants.

2010-05-24T14:28:00.001-04:00

This morning the Supreme Court issued an opinion in Graham v. Florida which holds that it is unconstitutional to sentence juvenile non-homicide offenders to life without the possibility of parole under the Eighth Amendment. The opinion was 6-3. Justice Kennedy wrote for the Court. Kennedy's opinion contains the following language: "[Our cases] underscore the essential principle that under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes." The judgment was joined by Stevens, Ginsburg, Sotomayor, and Roberts. Scalia, Thomas and Alito dissented. Although Chief Justice Roberts joined in the result, he wrote separately to clarify that he does not believe this ruling should be extended to all juvenile non-homicide offenders.

Check out the opinion at the link above.

-RCS

We have moved!

2010-05-09T12:42:00.003-04:00

The offices of the Federal Defender Program, Inc. have moved to the Centennial Tower at the corner of Marietta and Spring Streets. Our new address is 1500 Centennial Tower, 101 Marietta Street, Atlanta, GA 30303. Our phone numbers remain the same.

Unites States Sentencing Commission votes to provide Guideline Amendments to Congress

2010-04-20T12:34:00.007-04:00

Yesterday, the U.S. Sentencing Commission voted to promulgate sentencing guideline amendments to Congress by May 1, 2010. These proposed amendments will recommend departures for individuals in need of drug, alcohol, or mental health treatment. District courts will be given the options of sentencing our clients to home or community confinement as opposed to straight incarceration. The Commission agreed to broaden Zones B and C to provide for these sentencing alternatives.

The Commission also voted to amend the guideline policy statements to allow judges to consider a defendant's age, mental and emotional conditions, and military history in accordance with 18 U.S.C. Section 3553(e). Further, as we posted eariler, the Commission voted to delete the "recency" provision of the criminal history computation. The proposed amendments also include new guideline provisions for hate crimes and crimes against United States servicemen and women.

Lastly, the Commission will recommend that the current sentencing guildlines pertaining to the sentencing of organizations be amended to encourage adoption of rules creating compliance and ethics officers for defendant-organizations.

Unless Congress objects to the proposed amendments, they will become effective on November 1, 2010.

-RCS

Defense counsel earns acquittal against major drug trafficking conspiracy charges!

2010-04-15T10:32:00.031-04:00

On April 8, 2010, Attorney Page Pate, a private practitioner and member of the CJA panel, earned an acquittal for his client who was charged in a major drug trafficking conspiracy. The government alledged that his client, pilot Donald Fontana, knowingly transported large quantitites of cocaine from a city near the Texas/Mexico border to a Peachtree City airport aboard his private plane. Mr. Fontana has been a licensed pilot since 1966 and has conducted business in real estate and oil in that area for several years.

According to federal agents, they observed Mr. Fontana land this plane at Falcon Field on August 29, 2009. He and two passengers, (co-defendants who later entered guilty pleas), exited the plane carrying several bags. The agents followed the men to local hotels. Later, one of the co-defendants was arrested after a high-speed car chase. The agents recovered hundreds of kilos of cocaine in his vehicle. All of the men were indicted on conspiracy charges and one was charged with a weapons offense.

Mr. Fontana maintained his innocence and several character witnesses testified that he was an honest business man and a family man with high moral standands. Although the government argued that he "turned a blind eye" to the conduct of his co-defendants, including the fact that he was paid in large sums of cash for his services, he was exonerated by a Newnan jury following 1 1/2 hours of deliberation.

Congratulations, Page!

-RCS

Winning Strategies Seminar in Chicago, Illinois June 17-19, 2010.

2010-04-15T08:57:00.001-04:00

Register now for the Winning Strategies Seminar in Chicago, Illinois to take place June 17-19, 2010. Drawing its faculty from the ranks of federal judges, defenders and practitioners, Winning Strategies presents legal techniques for use in securing pretrial, trial, sentencing and appellate relief in a wide variety of federal cases. The seminar will employ both plenary and break-out instructional sessions to present “nuts and bolts” defenses to firearms, drugs, child pornography and immigration prosecutions – as well as to present defenses to more novel prosecutions such as mortgage fraud, identity-theft, etc. Winning Strategies additionally provides important guidance and insights concerning the new post -Booker sentencing landscape now facing federal defense attorneys. Participants will receive analysis of the Supreme Court’s recent criminal law decisions and insights into that Court’s pending criminal cases. They will also hear forecasts from the Sentencing Resource Counsel’s representatives on proposed guideline amendments and will learn strategies to better advocate for – and achieve – just sentences.

-SAK

SENTENCING ALERT: COMMISSION VOTES TO ELIMINATE RECENCY POINTS.

2010-04-15T08:48:00.002-04:00

On Tuesday, April 13, 2010, the United States Sentencing Commission voted to amend the Guidelines Manual by deleting 4A1.1(e) (recency points). 4A1.1(e) adds 2 points to the criminal history score if the defendant committed the instant offense .... The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability.

The recency amendment along with the other amendments being voted on this cycle will be sent to Congress on May 10, 2010 and, if no further action is taken, will be adopted on November 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 USC 3553 and Supreme Court precedent to disagree with any part of the guidelines on policy grounds.

Defense counsel should consider arguing that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on November 1, 2010. They do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

The Commission will announce all of the pending amendments on its website, www.ussc.gov.

-LBF

How to Find Information on the Bureau of Prison's Sex Offender Treatment Program

2010-03-31T14:45:00.003-04:00

For those of you who represent persons classified as sex offenders, you may want to know that the Bureau of Prisons Sex Offender Treatment Program is at Devens. There is a sex offender management program in one facility for each region. The Southeast Region's program is at Mariana.

Be advised that sex offenders are not segregated, except in the treatment program, and not likely to go to the management program's facility right off the bat. They go to management for the last portion of their sentence. The program statements for the program may be found by following the link below.

Padilla v. Kentucky decision: Supreme Court rules that Sixth Amendment requires advice on immigration consequenses of guilty plea

2010-03-31T13:44:00.020-04:00

Today, the Supreme Court ruled that an attorney has a constitutional obligation to advise her client of the potential immigration consequences of her guilty plea. Padilla v. Kentucky (08-651). In this case, Mr. Padilla, a lawful permanent resident of the United States for more than 40 years, was charged in state court with transporting a large quantity of marijuana. Before he entered a guilty plea, he asked his attorney whether the conviction would negatively affect his immigration status. His attorney told him "...did not have to worry about immigration status since he had been in the country for so long". After pleading guilty, immigration officals initiated proceedings to remove him to his native country, Honduras, based on his plea to an "aggravated felony". Mr. Padilla sought habeas relief from his conviction, arguing that his attorney's failure to properly advise him of the inevitable removal proceedings was a violation of Strickland v. Washington. The state appellate court denied relief, finding that defense counsel was not constitutionally required to provide advice for a "collateral" proceeding unrelated to the underlying criminal matter.

Justice Stevens, writing for the majority, determined that deportation is "an intergral part-indeed, sometimes the most important part- of the penalty" one may face when pleading to specific criminal offenses. The majority noted the immense complexities of immigration law and the profound effect a guilty plea could have on a defendant's immigration status. A defendant is deprived of his Sixth Amendment right to "reasonable professional assistance" of counsel if she fails to inform her client of the potential of deportation. The Court concluded by stating its Constitutional obligation to "ensure that no criminal defendant - whether a citizen or not- is left to the 'mercies of incompetent counsel.'

Click here for a link to the article in the New York Times.

This makes the Federal Defender Program Cinco de Mayo Summit all the more timely. There is still time to register! The agenda includes an immigration panel with Peter Hill, Jesus Nerio and Arturo Corso which will address immigration consequences of guilty pleas.

- RCS

BOP Medical Designations Article - Looking for more information and understanding, look no further. ...

2010-03-30T15:35:00.007-04:00

Alan Ellis's website contains a wealth of information about sentencing and about the Bureau of Prisons. If you represent a defendant who is in need of medical designation, Mr. Ellis has a must read article on the website with loads of information. Among other things, the article explains the levels of medical classifications and how such levels are evaluated. Follow the link below for this great resource!

http://www.alanellis.com/CM/Publications/BOP-Health-Care.asp

Supreme Court hears argument on applicability of Double Jeopardy Clause to re-trials

2010-03-29T13:14:00.011-04:00

On Monday, the Supreme Court heard oral argument on a case involving the Fifth Amendment's Double Jeopardy Clause: Renico v. Lett (09-338). In this case, the defendant was charged with second-degree murder. Following a four day trial, the jurors began to deliberate. Not long into deliberation, the jury sent two notes to the trial court. The first stated that the jurors were concerned that their potentially protracted deliberations would interfere with other courthouse proceedings. In the second note, the jurors asked the court to explain what would happen if they could not reach a unanimous verdict. After receiving the second note, the trial judge asked the foreman if he believed the jurors could reach a verdict. He said "no" after some hesitation. The court declared a mistrial and another jury was sworn for the re-trial. Mr. Lett was convicted following the second trial.
On appeal, he argued that the re-trial resulted in a Double Jeopardy violation. Although the state appellate courts disagreed, he successfully argued in federal court that the trial court failed to take adequate steps to ensure that the jury was deadlocked before it declared a mistrial, resulting in a Fifth Amendment violation. The Sixth Circuit Court of Appeals affirmed the federal district court's ruling.
The state, in its briefing to the Supreme Court, argued that the Fifth Amendment was not violated when the judge declared a mistrial based on "manifest necessity", a determination left to the "sound discretion" of the judge, because federal courts defer these decisions to state courts who are better equipped to made this determination. There is no concensus on what constitutes a "dead locked" jury and although the courts of appeal are split on the question of whether a finding of "manifest necessity" is warranted based on jury deliberations exceeding a specific time, AEDPA directs federal courts to use a highly deferential standard of review.

Mr. Lett countered by recognizing AEDPA's directives but argued that this deferential standard of review is due only when a trial judge uses "sound discretion." There is a presumption against terminating jury deliberations when a verdict favorable to the defendant could be returned. Further, the judge must ensure that the jury is truly unable to reach a unanimous verdict before a mistrial is declared.

Lastly, Mr. Lett submitted that the trial court did not adequately reflect on her decision and failed to give him the opportunity to object to the ruling. If the Supreme Court considers his silence at the conclusion of the first trial to be a waiver, that procedural bar could preclude any relief.

RCS

Another ACCA defense victory from Eleventh Circuit!

2010-03-25T11:15:00.006-04:00

On Wednesday, the Eleventh Circuit, in United States v. Kevin Earl Sneed (09-13195, 3.24.10) ruled that the district court erred when it relied on police reports to determine that the predicate convictions were committed on separate occasions to justify application of the Armed Career Criminal Act. The Court relied on Shepard v. United States, 544 U.S 13 (2005), and found that the district court could not look beyond the charging documents, applicable statute, transcripts and any admissions a defendant makes pursuant to the plea agreement. As a result, the ACCA was inapplicable. This decision overrules Circuit precedent, United States v. Richardson, 230 F.3d 1297 (2000), that once permitted this type of evidentiary review when the charging documents did not specify when the previous crimes had been committed.

The Senate “Cracks” Cocaine Sentencing Disparity

2010-03-22T14:33:00.009-04:00

The Senate has unanimously passed S. 1789, The Fair Sentencing Act of 2010. In this compromise legislation, the mandatory minimums for crack are adjusted to a 17.85 to 1 ratio, down from 100 to 1. It will take 28 grams of crack to get a 5 year mandatory minimum, up from five grams. It will take 280 grams to get a 10 year mandatory minimum, up from 50 grams.

The bill also contains a directive for the Sentencing Commission to, within ninety days, add aggravators and mitigators for all drug offenses, including enhancements for those who use a minor, an adult over 64, or a pregnant person to engage in trafficking, or distribute to anyone who is unusually vulnerable due to physical or mental condition. Some of the proposed adjustments may already be embodied in the Guidelines. A link to the bill is here.

The House bill, H.R.3245, the Fairness in Federal Cocaine Sentencing Act of 2009, removes all reference to cocaine base from the statute, thereby equalizing the penalties for all cocaine offenses. This bill is still pending in committee. A link to that bill is here.

The House will have to pass the Senate bill or pass its own bill and then reconcile them before the President can sign the bill into law.

Professor offers persuasive argument for new approach to sentencing those who possess child pornography.

2010-03-17T12:06:00.005-04:00

Law Professor Jelani Exum, in his new article "Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Porngraphy Offenses," notes that although federal judges are beginning to impose sentences below the applicable sentencing guildeline range, the courts should consider the effect computer behavior and the Internet have on how an offender comes into possession of child porngraphy. He argues for reform of the sentencing guidelines applicable to possessors of child pornography. His analysis could be used to justify a variance in cases that involve offenders who simply possessed the contraband.

-RS

The tentative agenda for the Cinco de Mayo Summit has been posted. Also, check out the entertainment!

2010-03-16T16:46:00.002-04:00

The tentative agenda for the Cinco de Mayo is posted at GAN.FD.ORG under seminars. We are expecting a productive seminar after which we will be entertained by the Mariachi del Sol Azteca, pictured below. Click HERE for the tentative agenda.

SEARCH AND SEIZURE CASE ALERT: Arizona v. Gant rule not retroactive in the Eleventh Circuit.

2010-03-12T07:57:00.002-05:00

In Arizona v. Gant, the United States Supreme Court held that:

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.

129 S.Ct. at 1723. In United States v. Willie Davis, 08-16654, the Eleventh Circuit held that a violation of the above rule will not result in suppression of evidence seized prior to the Gant decision ( April 21, 2009) when a police officer relies on the Circuit's "well-settled precedent" that was applicable at the time of the arrest. In the Davis case, the defendant, a passenger in the car, had been arrested and placed in the back seat of a patrol car before the officer searched the vehicle. Prior to the Gant decision, police officers were allowed to search the passenger compartment of a vehicle following the lawful arrest of the occupant. New York v. Belton, 453 U.S. 454 (1981). At the time of Mr. Davis' arrest, the Belton decision was applicable. Because the officer relied on Belton, the panel ruled that the "good faith" exception to the exclusionary rule applied. The Court reasoned that the purpose of the exclusionary rule, deterence of officers who engage in misconduct, would not be furthered if law enforcement officers were penalized for abiding by circuit precedent. The Eleventh Circuit joins other circuits which have held the same. However, the Ninth Circuit reached a different conclusion in United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009). For more detail, we refer you to the case summaries available on the Fourth Amendment Blog and the Eleventh Circuit Defense Newsletter.

Photograph on license from istockphoto.

Northern District of Georgia trial ends in acquittal.

2010-03-11T07:19:00.001-05:00

Federal Defender Program attorney Tom Hawker successfully defended his client in a federal drug and gun trial which ended in acquittal on Tuesday. The trial was conducted before the Honorable Timothy C. Batten. The Government elected to call only one of three police officer witnesses listed as being present during the arrest of Mr. Hawker's client. Government experts were not asked to run fingerprint tests on the plastic bags which contained the drugs attributed to Hawker's client.

Congratulations to Federal Defender Tom Hawker on his victory!

New Supreme Court Rules effective February 16, 2010

2010-03-11T07:11:00.000-05:00

The revised version of the Supreme Court Rules went into effect on February 16, 2010. We previously posted about them, but now that they are in effect, we wanted to make sure that you were alert to them. A full copy may be found HERE. A summary of the changes may be found HERE.

New Supreme Court Speedy Trial Act Reversal. Opinion attached below.

2010-03-08T21:20:00.004-05:00

United States v. Bloate: Supreme Court reverses denial of defendant's motion to dismiss indictment under Speedy Trial Act, involving the issue of the excludability from the 70-day limit under 18 U.S.C. section 3161(h)(1) of time granted to prepare pretrial motions. The opinion authored by Justice Thomas is HERE.

Thanks to blog follower Roger C. Wilson for keeping us all current with this Supreme Court case alert!

Also, Kish & Lietz has a nice case summary on Bloate. A link to Kish & Lietz's blog entry is HERE.

Florida Federal Defenders win in Supreme Court on Armed Career Criminal Act predicate issue! Congress meant to capture predicates with violent force when it specified predicates involving force.

2010-03-04T09:49:00.007-05:00

Congratulations to our colleagues in Florida who obtained a victory in the Supreme Court in Johnson v. United States, 08-6925 (March 2, 2010). On Tuesday, the Court ruled that a conviction for simple battery under Florida law does not constitute a "violent felony" pursuant to 18 U.S.C. Section 924(e)(1) because it does not have "...as an element the use of physical force against the person of another." The government argued that the common-law definition of the crime of battery, which only requires the slightest offensive touching of another, describes the type of "force" found in the Section 924(e)(2)(B)(i) and required for application of the ACCA enhancement. The High Court rejected this argument, ruling that Congress intended to enhance the punishment of those offenders who previously engaged in conduct involving violent force capable of causing physical pain or injury to another. Unless the charging documents, plea agreement, transcripts or other factual or legal findings establish that the accused violated a statute containing the necessary element of use of violent force upon another, the prior conviction will not qualify as a predicate offense pursuant to the Armed Career Criminal Act.

The Supreme Court considers the impact of silence in response to Miranda in one of three criminal cases set down for oral argument today.

2010-03-01T08:56:00.000-05:00

The Supreme Court hears argument in three more criminal cases this morning. Of particular interest is Berghuis v. Thompkins, 08-1470, in which the Justices will consider a case in which a defendant was advised of his Miranda rights, acknowledged that he understood them, and then when asked if he wished to waive those rights just sat for a long period of time without saying more.

Skilling v. United States, 0-1394, an honest services fraud issue growing out of the Enron scandal and Holland v. Florida, 09-5327 are also to be argued. The question presented in Holland v. Florida is whether “gross negligence” by a prisoner’s lawyer can amount to exceptional circumstances warranting equitable tolling.

Photo by LunaDiRemmel (flickr)

Eleventh Circuit applies the reasoning of Begay to hold that a conspiracy which does not require an overt act is not a predicate for career offender.

2010-02-24T21:36:00.000-05:00

http://www.ca11.uscourts.gov/opinions/ops/200910521.pdf

In 2008 in Begay, the Supreme Court used a categorical approach to conclude that DUI does not qualify as a violent felony for purposes of the Armed Career Criminal Act. In United States v. Whitson, 09-10521, the Eleventh Circuit followed the reasoning in Begay to find that a conspiracy to commit a strong arm robbery which does not require an overt act is not a crime of violence for career offender purposes. Since the crime of conspiracy is not on the list of example crimes of violence, it is examined in the residual category in a three step process. First, the court looks at the elements required to violate the statute in question (in this case South Carolina conspiracy). The South Carolina conspiracy involved in this case did not require an overt act, such that the statute is violated once there is an agreement to do an unlawful act. Then the court considers whether there is a risk of violence associated with the crime. Then under Begay, the court must also consider whether the crime is roughly similar in kind as well as the degree of risk posed. Because the Eleventh Circuit found that South Carolina conspiracy is not similar, it found that it is not a predicate for career offender. This creates a split with the Fourth Circuit.

Supreme Court decides in Maryland v. Shatzer that Edwards's prohibition against further interrogation once a suspect invokes his right to counsel expires two weeks after a break in custody.

2010-02-24T20:32:00.004-05:00

On Wednesday, the Supreme Court issued its opinion in Maryland v. Shatzer, concerning the amount of time law enforcement must wait before re-initiating questioning after a citizen has invoked the right to counsel. A law enforcement officer went to see defendant Shatzer who was in custody for one offense, in order to question Shatzer about his possible involvement in another offense, sexual abuse of his son. Shatzer refused to talk without an attorney. The investigative file on the sexual abuse of the son was closed. Shatzer then was released back into the general prison population. Two and one half years later, another investigator goes to question Shatner again about the sexual abuse of his son. Shatzer waives his rights and makes incriminating statements.

Traditionally, under Edwards v. Arizona, law enforcement officers are prohibited from any further interrogation of a defendant who has invoked the right to the presence of an attorney during police questioning. However, the Supreme Court found that two and one half years after a break in Miranda custody is sufficient to dissipate the coercive effects of police custody. Actually, the Supreme Court went further and held that two weeks after a break in Miranda custody is sufficient. Thus, when a citizen in police custody invokes his or her right to have an attorney present during questioning, the citizen becomes fair game for further attempts at interrogation two weeks after a break in Miranda custody. Or in Justice Scalia's parlance, the Edwards protective umbrella remains open for two weeks after the break in Miranda custody. After that, it is up to the citizen to re-invoke rights.

The Supreme Court also reaffirmed the concept that a person in a prison is not in custody for Miranda purposes if the person is in general population.

The Burgess and O'Brien oral argument took place in the Supreme Court today.

2010-02-23T21:26:00.000-05:00

The transcript of the oral argument in Burgess and O'Brien on the issue of whether the type of firearm involved in a 924(c) violation is an offense element or sentencing factor makes for interesting reading and is posted HERE.

Eleventh Circuit finds that Rule 35 applies to resentencings on crack motions, just as it does in original sentencings. Thus, the district court has no jurisdiction to modify a crack reduction after the passage of 7 days.

2010-02-23T20:40:00.003-05:00

In United States v. Ronald Phillips, 09-11210, (Carnes, Hull, Anderson), the Eleventh Circuit held that Rule 35's limitations on modification of a sentence applies with equal force to crack resentencings as it does in original sentencings. Therefore, when a district court imposes a sentence of imprisonment, that sentence cannot be modified beyond the seven day limit on motions to correct as stated in Rule 35. The Government had argued that Rule 35 does not apply to crack reductions and that the district court had the authority to entertain a motion for reconsideration even after the expiration of seven days. The Eleventh Circuit found, however, that "A sentencing, whether imposing the initial sentence or a subsequent different sentence, is a sentencing." Thus, Rule 35 divests the district court of any jurisdiction to reconsider after seven days have passed. Or as Dr. Seuss might say, "A sentencing's a sentencing, no matter how small."

Way to go Jake.

SUPREME COURT ARGUMENT ON TUESDAY REGARDING 924(C): Is the type of firearm an element or a sentencing factor pursuant to 18 U.S.C. 924(c)(1)(b)(II) in order to invoke the 30 year minimum mandatory sentence?

2010-02-22T16:55:00.002-05:00

On Tuesday, the Supreme Court will hear argument on another issue relating to 18 U.S.C. 924(c). (See earlier post relating to the cert grants in Abbott and Gould on the except clause of 924(c).) Specifically, the Court will decide whether the type of firearm involved in a crime of violence or controlled substance offense should be treated as an offense element under 18 U.S.C. 924(c)(1)(B)(ii) as amended in 1998. The case is United States v. O'Brien and Burgess, 08-1569.

O'Brien and Burgess were convicted in federal court in Massachusetts of participation in an armored car robbery in which a machinegun was among several firearms that were used. Prior to trial, the defendants had asked the court to separate out the 924(c) machinegun count from the other 924(c) count. They reasoned that the machinegun 924(c) was a different crime than the 924(c) for the firearms that were not automatic, since the machinegun count required a mandatory minimum sentence of 30 years. The district court agreed. The Government then conceded that it could not prove that defendants had knowledge that the firearm was fully automatic and dismissed the count that related only to the machinegun. At sentencing, the Government nevertheless asked for a 30 year mandatory minimum to be imposed for the machinegun under 924(c)(1)(B)(ii). The district court refused. The First Circuit affirmed the judgment of the district court, but did so "reluctantly" citing the Supreme Court's opinion in Castillo which interpreted the older version of 924(c).

Prior to its amendment in 1998, 924(c) specified a series of definite sentences applicable to various ways of violating the statute and various types of firearms. For instance, the use of a firearm during a crime of violence required a sentence of 5 years. If it was brandished, the required sentence was 7 years. If the offense involved a machinegun, the required sentence was 30 years. However, when Congress amended the statute in 1998, the required sentences were changed to a series of mandatory minimum sentences. This distinction, according to the Government, made it clear that Congress intended that under the new statute, the different ways of violating 924(c) be treated as sentencing enhancements.

Mandatory minimum sentencing schemes have been viewed differently than situations which change the maximum sentence that a defendant is exposed to. Under McMillan v. Pennsylvania, decided in 1986, the Supreme Court found that a mandatory minimum sentencing scheme out of Pennsylvania did not offend the Constitution where the facts necessary to invoke the mandatory minimum sentence were determined by a judge by a preponderance, rather than having to be pled and proven to a jury. In McMillan, however, the Supreme Court specified that where the sentencing enhancement became the tail that wagged the dog of the sentence, such a situation might offend the Sixth Amendment if it were not treated as an offense element. Here, the defendants are likely to argue that the tail IS in fact wagging the dog, since the sentenicng enhancement (or mandatory minimum) is thirty years. The National Association of Federal Defenders has filed an amicus brief on behalf of the defendants.

For a more comprehensive preview of the oral argument click HERE.

RENEWED NATIONAL FOCUS ON FIXING THE PROBLEMS WITH THE CRIMINAL JUSTICE SYSTEM: The National Criminal Justice Commission Act of 2009

2010-02-16T08:39:00.001-05:00

As we continue the business of representing individuals who come before the Northern District of Georgia to answer to criminal charges, it is important to be cognizant of the increasing national dialogue on the problems of the criminal justice system, including the problem of over-incarceration and the lack of effective ways to help ex-offenders to reintegrate themselves into the community.

This past Friday, the New York Times endorsed the National Criminal Justice Commission Act of 2009 which was introduced by Virginia Democratic Senator Jim Webb (pictured below right) on March 21, 2009. The bill cleared an important Senate hurdle by passing the Senate Judiciary Committee on January 21, 2010. The bill would create a Blue Ribbon Commission to study ways to reform the American Criminal Justice System, inclusive of state as well as federal systems. It has received strong bipartisan support as well as praise from members of Congress. It will now head to the full Senate for consideration. If it passes, it will be the first time there has been a comprehensive study of the criminal justice system since 1965.

Senator Jim Webb's statement on the bill is as follows:

The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.

Why We Urgently Need this Legislation:

With 5% of the world's population, our country now houses 25% of the world's reported prisoners.
Incarcerated drug offenders have soared 1200% since 1980.
Four times as many mentally ill people are in prisons than in mental health hospitals.
Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.
Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

Senator Webb continues that: America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous.

We are wasting billions of dollars and diminishing millions of lives. We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.

The New York Times endorsement piece is here.

On the same day that the New York Times endorsed the National Criminal Justice Commission Act of 2009 (or Senate Bill 714), Attorney General Eric Holder made the following remarks to a group of law enforcement officers which he addressed last Friday:

Let me be clear, we enhance public safety by incarcerating those who harm our neighbors and our communities. This is a fact. But in our work to protect the American people, incarceration cannot be our only law enforcement strategy. We’ve learned that simply building more prisons and jails will not solve all our problems. It’s time to face facts about our current approach to incarceration. It’s not sustainable. It’s not affordable. And we’ve seen that it isn’t always as effective as we think in reducing crime and keeping Americans safe.

The full text of Attorney General Holder's remarks last Friday are here.

HAPPY PRESIDENT'S DAY!! To celebrate, GAN Defenders Blog confers honorary Acquittal Club membership on two former Presidents.

2010-02-15T09:00:00.005-05:00

If President's Day weekend is a time to reflect on the contributions of the men who have so far held our nation's highest office, GAN Defenders Blog would add to that reflection that at least two former Presidents would have been members of the Acquittal Club (if there was such in those days).

Abraham Lincoln is said to have handled 27 criminal cases during his career as a prairie lawyer. In his most famous criminal trial, Lincoln defended a man named William Duff Armstrong who was accused of murder. The key moment in the trial was during Lincoln's cross examination of a man who claimed to have been an eye witness to the crime. Lincoln pulled out a copy of the Farmer's Almanac and asked the court to take judicial notice of the fact that the moon would have been at such a low angle on the night of the crime as to make visibility of the crime impossible. Armstrong was acquitted. (1858)

John Adams is often credited with being the first "public" defender for his role in defending the men who were accused in the charges that arose from the Boston Massacre. Despite overwhelming public sentiment against the British soldiers, John Adams was able to obtain full acquittals for six of the soldiers and reduced charges for two others. Adams then saved those who had been convicted of charges from execution by invoking a provision which spared the lives of those who could prove they were literate.

Welcome to the Acquittal Club Presidents Lincoln and Adams! Hey Jake, where should we send the T-shirts?

Comment:

Leigh said: Seems Adams just waltzed right through that conflict. I say - take the T-shirt back.

ONLINE RESOURCE: Benchbook for federal district courts from the Federal Judicial Center is posted online.

2010-02-13T07:56:00.002-05:00

Some may be surprised to know that the benchbook used by district court judges in federal court is available online from the Federal Judicial Center. While the current edition of the benchbook has a general publishing date of 1996, and the most recent updates go back to March of 2000, the benchbook is still a good resource to have for general questions on many issues of law in federal criminal practice.

Click here for the link to the Federal Judicial Center Benchbook.

Fourth Circuit reversal where district court failed to recognize its authority to sentence below the guidelines range based upon a defense argument relating to the crack powder ratio.

2010-02-12T06:30:00.000-05:00

An assistant federal defender in the Fourth Circuit has won reversal of a case out of the Fourth Circuit in which the district court refused to consider a request for a below guidelines sentence on a crack powder ratio argument. In United States v. Herder, the defendant received a sentence at the low end of the guideline range, but the sentence was procedurally unreasonable since the district court refused to consider its authority to sentence below the guidelines in light of the crack powder disparity. Any time a district court refuses to recognize its authority to sentence outside the guidelines range or applies a presumption of reasonableness to a guidelines range, this is procedural unreasonableness. Practitioners should object on both substantive and procedural unreasonableness grounds.

Additional Press Coverage on the Child Pornography Restitution Issue

2010-02-08T12:51:00.009-05:00

We have covered a number of the developments on the issue of whether defendants who possess and/or distribute child pornography images can be hit with restitution by the subjects of the photographs even where the defendant absolutely no contact with the child victims. Look for our previous posts on this issue and the litigation by the Marsh firm and others. There has been a good bit of press coverage on this issue and at least three district courts have issued varied opinions on the issue so far in this district. We wanted to alert our followers to an additional article on this issue by the Associated Press which appears in the Atlanta Journal Constitution.

Click HERE for a link to the article.

11th Circuit upholds aggravated identity theft conviction finding that a rational trier of fact could infer that defendant had knowledge documents belonged to a real person since defendant submitted documents to State Department which had a rigorous verification process and since defendant used documents to obtain credit to purchase a car.

2010-02-07T07:30:00.000-05:00

In United States v. Holmes, 09-14035 (11th Circuit February 5, 2010) (per curiam), the Eleventh Circuit affirmed an aggravated identity theft conviction finding the evidence sufficient to allow a rational trier of fact to infer the knowledge element of 18 U.S.C. 1028A. The defendant Natalie Holmes was tried for aggravated identity theft and other crimes in the Southern District of Florida. The Government presented evidence that Ms. Holmes had used documents belonging to a United States citizen to obtain a Florida driver's license, a passport and credit to purchase an automobile. The defendant argued that the Government had not proven that she knew the documents belonged to an actual person. The district court instructed the jury that it had to find that the defendant knew that the documents belonged to a real person in order to find her guilty of aggravated identity theft pursuant to 18 U.S.C. 1028A. The Eleventh Circuit found that the Government's evidence concerning the rigorous verification process for passport verification, the return of the birth certificate to Holmes after the passport application was reviewed and the fact that the defendant used the documents to obtain credit to purchase a vehicle all supported a rational inference that the defendant knew that the documents belonged to an actual person.

ELEVENTH CIRCUIT EN BANC CASE PREVIEW: Oral arguments Tuesday to the full court on whether a 210 month sentence was too lenient for a man convicted of using minors to produce sexually explicit visuals for distribution in United States v. William Irey.

2010-02-06T10:01:00.002-05:00

On Tuesday, the United States Attorney's Office for the Middle District of Florida will try to convince the Eleventh Circuit Court of Appeals (en banc) that it should reverse a 210 month sentence as too lenient for a 51 year old man convicted of using minors to produce sexually explicit visual depictions for distribution. The defendant's guidelines range was life. However, the statutory maximum was 360 months.

Judge Edmondson affirmed the district court's sentence in March explaining that "appellate judges are not authorized to substitute their personal views of what might be the best sentence for the sentence imposed by the district court." United States v. Irey, 563 F.3d 1223 (11th Cir. 2009) (vacated for rehearing en banc). Finding no procedural unreasonableness, Judge Edmondson concluded that the Government failed to carry its burden of demonstrating that the sentence was unreasonable. The three judge panel also included Hill and Tjoflat. Judge Hill wrote a special concurrence indicating his strong disagreement with the sentence imposed, but agreeing with Judge Edmondson that the district court had the discretion to impose the 210 month sentence.

The Eleventh Circuit decided sua sponte to consider the issue en banc even after the time had passed for either side to seek a petition for certiorai. The full court will hear oral arguments on the case on Tuesday at 9:00am. William Irey is represented by William Ponall (below right) and Kirk Kirkconnell (below left). The Assistant United States Attorney handling the case is Peggy Ronca.

This case is a test of the independence and discretion of district courts to impose sentences which they deem reasonable after full consideration of the factors pursuant to Title 18, United States Code section 3553.

FALSE CONFESSIONS ISSUE SPOTLIGHT: New law review article on false confessions seeks to explain the pathways that lead to the problem.

2010-02-05T08:05:00.002-05:00

Professors Richard A. Leo of University of San Francisco and Steven A. Drizin of Northwestern have published an article on the problem of false confessions in the criminal justice system which often play a key role in wrongful convictions. According to the Leo and Drizin, there are three errors which form a classic pathway to a wrongful conviction. They are: (1) an incorrect assumption that a suspect is guilty, followed by (2) a guilt-presumptive interrogation which includes lies about the state of the evidence and (3) promises and/or threats. Once a confession is obtained, there is often a further pressure for the suspect to produce a narrative to support the confession which is often contaminated by facts fed to the suspect with public and sometimes nonpublic facts about the crime. Click on the link below for the article which was featured this morning on the Criminal Law Professors Blog.

Leo and Drizin, The Three Errors: Pathways to False Confession and Wrongful Conviction.

President Obama nominates Macon trial attorney Marc Treadwell to the United States District Court for the Middle District of Georgia.

2010-02-04T20:27:00.005-05:00

Macon trial attorney Marc Thomas Treadwell, a partner in the law firm of Adams Jordan & Treadwell, was nominated to the federal bench in the Middle District of Georgia earlier today. Treadwell is a native of Blackshear, Georgia. He represents mainly plaintiffs in civil lawsuits. He also teaches at Mercer Law School in Macon. Treadwell was one of four judicial nominees whose names were forwarded to the Senate on Thursday.

Click here for more information on Mr. Treadwell's background and experience.

11th Circuit holds that parties are entitled to notice and an opportunity to be heard when district court considers new information in a crack reduction case pursuant to 3582.

2010-02-02T21:10:00.000-05:00

United States v. Jules, S.D.Ga. (11th Cir. 2/2/10) (Dubina, Birch, Black): Southern District of Georgia Defendant came back on a crack reduction proceeding. The district court found that it had jurisdiction to reduce the defendant's sentence, but it decided not to do so after learning from the probation department that the defendant had been in trouble while incarcerated. The parties were not told that this information was received or that it would be considered. The defendant appealed on the ground that he was not given notice that this information would be considered, nor was he given an opportunity to address the information relied upon by the court.

The Eleventh Circuit reversed holding that the parties had to be given notice and an opportunity to be heard on the new information even though the proceeding was a lesser procedural event than the original sentencing.

http://www.ca11.uscourts.gov/opinions/ops/200813629.pdf

Looking for a good primer on DNA evidence?

2010-02-01T22:04:00.000-05:00

Well, look no further, the website How Stuff Works has a primer on DNA evidence that is at least a good start for anyone wishing to learn the ropes relating to DNA evidence. Find a link to the website HERE.

ARTICLE REVIEW: "An American Dream Gone to Pot" Find and read Newsweek feature article on the Supreme Court's upcoming ruling relating to whether minor drug offenders can ask immigration judges for relief from deportation.

2010-01-31T07:56:00.001-05:00

In the January 7, 2010 issue of Newsweek, there is an article entitled "American Dream Gone to Pot: Should Illegal Immigrants Be Deported for Drug Possession? The Supreme Court Will Decide" about a case which is likely to be argued in the Supreme Court in March or April. The issue presented in that case concerns whether a person with two minor drug offenses can ask an immigration judge to waive the deportation proceeding. The issue is framed as follows in the cert petition:

Federal law forbids a lawful permanent resident who has been convicted of an “aggravated felony” from asking an immigration judge to cancel his deportation. A defendant who is convicted multiple times for drug offenses can be deemed to have committed an aggravated felony. The question presented is whether the successive drug conviction is an aggravated felony automatically or instead only if the court specifically finds that the defendant is a repeat offender.

The immigrant in this case is Carachuri-Rosendo and he had a conviction for possession of a small amount of marijuana and then a second conviction for possession of a single table of Xanax. Mr. Carachuri has been in the United States since he was 4 years old.

ONLINE RESOURCES: The New York Immigration Defense Project has great resources for persons representing non-citizens. Link below to the immigration consequences of criminal convictions checklist!

2010-01-31T07:40:00.005-05:00

The New York Immigrant Defense Project (NYSDA IDP) is a great resource for people who represent non-citizens concerned about the impact of criminal charges and convictions on their immigration status. The NYSDA decsribes their mission as follows:

IDP promotes a transformation of the criminal justice and immigration systems so that they do not result in the exile of immigrants from their homes and families in the United States. We also seek to minimize deportation and detention under current laws for immigrants facing criminal charges or subsequent deportation.

In pursuit of these goals, we (1) serve as a legal resource and training center for criminal defense attorneys, criminal justice and immigrant advocates, and immigrants fighting against deportation and detention; (2) support community-based advocacy against unjust immigration laws and their aggressive enforcement; and (3) promote immigrant-protective impact litigation results by recruiting and mentoring pro bono attorneys to provide legal assistance to immigrants challenging their detention or removal order in federal court.

One of the most helpful resources that they have posted online is a checklist of immigration consequences for criminal offenses. You can find a link to it HERE. But there are so many other aspects of their website. Visit it to learn more about criminal consequences, deportation relief and so much more!

BLOG REVIEW: FourthAmendment.Com Blog

2010-01-29T13:02:00.001-05:00

You will notice that the Fourth Amendment blog has been added to our blogs to watch. The blogs to watch list includes blogs that I have found or that have been recommended as blogs which are both helpful and informative on federal criminal defense issues. The Fourth Amendment blog has loads of information on search issues from many different jurisdictions. The author of the blog apparently has a treatise, but the blog itself is very informative. There is a search engine and very frequent updates. This blog is recommended for anyone seeking more authority on a suppression issue.

FOR YOUR READING LIST: A great article discussing strategies for success in sentencing for illegal reentry clients.

2010-01-28T21:23:00.002-05:00

For those of us who handle illegal reentry cases, we are always looking for fresh sentencing strategies to counteract some of the very harsh sentencing guidelines for reentry. I found this nice little article from the defenders in Mobile, AL. There are great citations and suggestions. Find the article link HERE.

More on the proposed amendments to the federal sentencing guidelines

2010-01-28T18:05:00.000-05:00

Click HERE for a link to the press release from the United States Sentencing Commission on the new proposed amemdments. These amendments reflect some movement from the sentencing commission on alternatives to incarceration and possibly other types of relief such as drug treatment. Check it out to stay informed.

Oral argument this morning in United States v. Farley regarding the constitutionality of 2241(c)'s 30 year mandatory minimum.

2010-01-27T08:13:00.001-05:00

The Eleventh Circuit will hear oral argument this morning in United States v. Farley which concerns the constitutionality of 18 U.S.C. 2241(c). Section 2241(c) punishes individuals who “cross a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years." As of July 2006, individuals convicted of this offense are subjected to a thirty year mandatory minimum sentence. At the district court level, the defense filed a motion to declare the thirty year mandatory minimum sentence unconstitutional as a violation of the Eighth Amendment's proscription against cruel and unusual punishment. Judge Beverly Martin agreed with the defense and found that the thirty year mandatory minimum was one of those rare times when a non-capital punishment violates the Eighth Amendment. The Government is on appeal from that order before the Eleventh Circuit. Oral argument will be heard this morning. The case has received national attention since it was issued last year. Farley's attorneys are Vionnette Johnson and Jeff Ertel of the Federal Defender Program, Inc. Go Vionnette and Jeff!

District court opinion here.
Post in Sentencing Law and Policy here.

New amendments proposed by the United States Sentencing Commission.

2010-01-26T22:00:00.003-05:00

Last week, the United States Sentencing Commission posted proposed changes to the guidelines. You can find the reader friendly version link HERE. The first thing that jumps out from the text of the reader friendly version is an increased emphasis on alternatives to incarceration. Then, there appears to be a change in the sentencing table itself and the jagged lines that define the zones of the table. (See below.) Be sure to review the proposed changes as the commission seeks input prior to promulgation. Remember that Michael Trost is the Eleventh Circuit representative to the Practitioner's Advisory Group of the United States Sentencing Commission. We will forward your comments to him.

Melendez-Diaz v. Massachusetts (June 2009) holding that the Confrontation Clause applies to forensic lab reports withstands challenge by the State of Virginia.

2010-01-26T08:15:00.005-05:00

Yesterday, the Supreme Court passed on the invitation to revisit Melendez-Diaz in Briscoe v. Virginia, instead remanding the case for further proceedings consistent with Melendez-Diaz. Therefore, as noted by my colleague, Nicole Kaplan, Melendez-Diaz stands. Melendez-Diaz held that lab reports are testimonial and thus the Confrontation Clause and Crawford would bar introduction of the lab report into evidence without live testimony by the author of the report or the person who ran the test.

Supreme Court will decide the meaning of 924(c)'s except clause with cert grants in the third and fifth circuits, Abbott and Gould.

2010-01-25T10:14:00.008-05:00

[Revision of the post yesterday - thanks to Millie.]
The Supreme Court has accepted certiorari in Abbott v. United States, 09-479, and Gould v. United States, 09-7073, which each involve the correct interpretation of 18 U.S.C. 924(c)'s except clause. Before listing the various mandatory minimum sentences under the various subsections, the 924(c) contains the proviso, “[e]xcept to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law.” Thus, the argument is that the except clause applies when a defendant is being sentenced for a 924(c) and some other statute which carries a higher mandatory minimum than the one which applies to the 924(c). This can happen with ten year mandatory minimum drug cases and also with multiple counts of 924(c) (since the second or subsequent carries a 25 year minimum).

The Third Circuit opinion in Abbott is here.
The Fifth Circuit opinion in Gould is here.

Eleventh Circuit finds waiver applies to extradition challenges (rule of specialty and rule of dual criminality) raised outside pretrial motions deadline.

2010-01-24T21:17:00.002-05:00

In United States v. Manuel Marquez-Lopez, 08-12588 (11th Cir. January 22, 2010) (Wilson, Anderson, Restani), the Eleventh Circuit considered multiple challenges to the defendant's extradition from Spain which were raised after the deadline for pretrial motions had passed. Challenges to personal jurisdiction (as opposed to subject matter jurisdiction) must be raised within pretrial motions deadlines or else they are considered waived. Manuel-Lopez challenged his extradition from Spain under the "Rule of Specialty" and the "Rule of Dual Criminality." The Eleventh Circuit ruled that such challenges relate to the court's power over the person (in that extradition is a device by which the court gains personal jurisdiction over the defendant). As such, the challenges must be raised within the time period for pretrial motions. The defendant's failure to do so constitutes waiver.

The Rule of Specialty in extradition cases provides that a person who has been extradited from a foreign country into the United States may only be prosecuted on the charges for which he or she has been extradited. See http://obtainingforeignevidence.blogspot.com/2008/02/rule-of-specialty-jacques-semmelman.html. Thus, if a defendant who is appearing pursuant to extradition faces a superseding indictment for additional charges, a motion to dismiss the new charges pursuant to the rule of specialty may be in order.

The Rule of Dual Criminality in general terms means that that which the seeking country wishes to prosecute the defendant for must be recognized as criminal in both countries.

Find the Eleventh Circuit opinion here.

FROM THE TRENCHES: Hung jury in murder for hire trial. United States v. Hernandez, 1:09-CR-303-ODE

2010-01-21T16:55:00.004-05:00

A mistrial was declared today after jurors were deadlocked in a murder for hire prosecution on trial before Judge Evans. The defendant Juan Hernandez was charged with attempting to hire someone to kill a man who had allegedly raped Hernandez's wife. Mr. Hernandez was represented by Daniel J. Ortiz, II. N.D.Ga. Docket Number 1:09-CR-303-ODE.

Senate unanimously confirms Judge Beverly B. Martin to the Eleventh Circuit Court of Appeals.

2010-01-20T14:31:00.003-05:00

Today, the Senate called a vote on the nomination of United States District Court Judge Beverly Martin to the Eleventh Circuit Court of Appeals.

The AJC article appears here.
Photograph by Administrator.

Supreme Court sends Georgia case back where trial court erred in excluding public from jury selection. "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials."

2010-01-19T21:21:00.002-05:00

Today, In Presley v. Georgia, 09-5270 (January 19, 2010), the Supreme Court of the United States reversed the Supreme Court of Georgia, because it disagreed with the Georgia Supreme Court's decision affirming a conviction despite the trial court's having excluded the defendant's uncle from the courtroom during jury selection over defense objection. In cases in which a trial court has legitimate concerns about whether there might be improper communications between members of the public and prospective jurors, the trial court must make appropriate findings of fact. "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials."

Photograph by dbking.
United States Supreme Court opinion here.

Supreme Court GVRs Georgia capital case (Marcus Wellons)

2010-01-19T20:59:00.001-05:00

Today, the Supreme Court granted, vacated and remanded the death penalty case of Marcus Wellons, stating, "The disturbing facts of this case raise serious questions concerning the conduct of the trial...." Lower courts had in this case denied the defendant the opportunity to further investigate and develop the record concerning why jurors had had ex parte contacts with the trial judge and why jurors had decided to give the judge and bailiff sexually suggestive chocolate gifts. The Supreme Court instructed that, "From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect."
Kudos to Elizabeth Wells!
Supreme Court opinion here.
Atlanta Journal Constitution article here.

Sentencing Guidelines Pocket Cards

2010-01-17T08:01:00.000-05:00

North Law Publishers is offering pocket card sized reference cards which include the sentencing table from the guidelines and a very small chart with drug quantities. They also have several other offerings which include condensed rule books and the like. Check it out.

http://www.northlawpublishers.com/

Are Unmanned Surveillance Drones Coming Soon to Federal Criminal Investigations?

2010-01-14T19:01:00.002-05:00

Today's post on the Criminal Law Professor's Blog discusses the Houston Police Department's exploration of the use of aerial surveillance drones to assist them in local criminal investigations. The Crim Prof Blog discusses the implications this could have on Fourth Amendment claims.

But guess what? A quick internet search turns up references from August 2009 to FBI interest in unmanned surveillance drones.

FBI interest in drones? Click here for link discussing the possibility of FBI interest in the unmanned drones.

Houston Police Department exploration of the use of drones for their investigations: Click here for the link to the Crim Prof Blog and a You Tube video about the Houston Police Department's use of the drones. CrimProf Blog

No Heller defense for defendants charged with possession of a firearm by a person convicted of a crime of domestic violence.

2010-01-12T15:41:00.000-05:00

Yesterday, the 11th Circuit ruled in United States v. White, 08-16101, that the defendant's prior misdemeanor conviction for assaulting his live-in girlfriend qualified as a "domestic violence" conviction to support a Section 922(g) (9) conviction. This statute prohibits those convicted of misdemeanor crimes of domestic violence from possessing firearms.

Also, for the first time, the Court ruled that Section 922(g)(9) is not unconstitutional despite the Supreme Court's ruling in Heller. The panel reasoned that the Supreme Court's exception to the Second Amendment's right to bear arms (that prohibits the possession of firearms by convicted felons) applied to this section.

Click here for the opinion http://www.ca11.uscourts.gov/opinions/ops/200816010.pdf.

The Administrator thanks Regina Stephenson for this post.

United States Supreme Court Rules Change

2010-01-12T15:26:00.001-05:00

On January 12, 2010, the Supreme Court adopted revised rules to take effect on February 16, 2010. The changes include: reduction in the number of words allowed in a reply brief by 1500 words; new requirements for the information to be included on a joint appendix cover; and a requirement that counsel of record include an email address on the covers of all documents filed.

The revised Rules can be found on the court’s website at: http://www.supremecourtus.gov/ctrules/ctrules.html.

The Administrator thanks Federal Defender staff member Debra Spratt for this information.

Government not entitled to present more evidence on drug quantity in sentencing remand when it failed to present sufficient evidence at original sentencing.

2010-01-06T23:54:00.000-05:00

In an unpublished decision today, the Eleventh Circuit vacated and remanded the 324 month sentence of Sammy Duque out of the Rome Division, because there was not a sufficient evidentiary basis for the district court's finding that Duque was responsible for more than 15 kg of methamphetamine. The district court also failed to make findings of fact as to the relevant conduct. Relying on a June 2009 published opinion, United States v. Canty, 570 F.3d 1271 (June 2009), the Eleventh Circuit instructed that the Government not be afforded another opportunity to present evidence relevant to the drug quantity finding since it failed to do so the first time around. Duque had been convicted in a several week long jury trial with several co-defendants back in January and February of 2008. He was represented by out of state counsel.

James Ray Ward death sentence reversed based upon improper communication between the jury during the penalty phase and a bailiff about life without parole option.

2010-01-04T18:49:00.000-05:00

The Eleventh Circuit today reversed a death sentence on the basis of improper communication between the bailiff and the jury during the penalty phase of the case. While jurors were debating whether to impose death, one or some of them inquired of the bailiff about whether they had the option of imposing life without parole instead of death or life. The bailiff reportedly told a juror or jurors that life without parole was not an option. This violated the defendant's right to an impartial jury. These communications with the jury should have been handled in open court.

James Ray Ward v. Warden Hilton Hall, ___ F.3d ___, 07-11360 (11th Cir. January 4, 2010) (Kudos to Jeff Ertel!!!).

Bond forfeitures which are not willful may not be used to calculate criminal history points under the guidelines.

2010-01-04T18:38:00.000-05:00

The Eleventh Circuit has previously held that since Georgia considers a bond forfeiture to be a conviction under state law, a bond forfeiture may be considered a conviction for purposes of calculating criminal history under the guidelines. See United States v. Strevel, 85 F.3d 501 (11th Cir. 1996). (Under Georgia law, a bond forfeiture is construed as an admission of guilt pursuant to OCGA 40-13-58 unless the forfeiture is involuntary.) In United States v. Wayne Daniel, the defendant argued that his bond forfeiture should not have been counted as a conviction for guidelines purposes, because it was not willful (in that he was in custody on another charge at the time he was due in court and had his bond forfeited). The district court overruled the objection and counted the conviciton which caused Mr. Daniel to have a higher criminal history category and correspondingly higher sentencing guidelines range. In an unpublished opinion, the Eleventh Circuit vacated and remanded the sentence for a determination by the district of whether or not the bond forfeiture was willful or involuntary. If the bond forfeiture was involuntary or not willful, it must not be counted for criminal history purposes.

United States v. Wayne Daniel, 2009 WL 4918232 (December 22, 2009) (Kudos to Nicole Kaplan).

Background Checks - There's a FREE App for that!

2010-01-01T15:17:00.003-05:00

This is my favorite new free iphone app for the new year. If you are an iphone user and want to check out a new app that has some obvious uses for criminal defense attorneys, check out the new iphone Background Check App. This amazing free iphone app allows you to run three background checks per week at no charge. There is apparently an upgrade available that will permit unlimited checks. The background check pulls up information such as address, property, and yes, criminal entries. While this app could never take the place of a crack investigator, it could provide a quick lead on a witness or two and might help to flag criminal issues for you as well. Check it out.

Georgia walkaway escape conviction is NOT a career offender predicate in light of Chambers v. United States, 129 S.Ct. 687 (2009).

2009-12-31T11:03:00.003-05:00

Petitioner Dave Roberson III appealed his 300 month sentence for Hobbs Act robbery and an associated 924(c) out of the Southern District of Georgia on the ground that a Georgia conviction for walkaway escape had been erroneously used as a career offender predicate. The Government conceded error citing Chambers v. United States, 129 S.Ct. 687 (2009). The Eleventh Circuit agreed.

United States v. Dave Roberson, 09-10519 (per curiam)(December 30, 2009).

Congress Approved Over $222 Million for Prisoner Reentry Programs Earlier this Month

2009-12-30T09:07:00.001-05:00

While perusing the Georgia Board of Pardons and Paroles for information about Second Chance Act programs in Georgia, I noticed this relatively recent posting relating to additional funding for the act earlier this month.

On Sunday, December 13, 2009, the Senate approved an appropriations bill for fiscal year 2010 that provides $114 million for prisoner reentry programs in the Department of Justice, including $100 million for Second Chance Act grant programs and $14 million for reentry initiatives in the Federal Bureau of Prisons. The House of Representatives passed the bill (H.R. 3288) on Thursday, December 10, 2009. The bill provides

$37 million for reentry demonstration projects under Sec. 101 of the Second Chance Act
$15 million for mentoring grants to nonprofit organizations under Sec. 211
$10 million for reentry courts under Sec. 111
$7.5 million for family-based, substance abuse treatment under Sec. 113
$2.5 million for grants to evaluate and improve education in prisons, jails, and juvenile facilities under Sec. 114
$5 million for technology careers training demonstration grants under Sec. 115
$13 million for reentry substance abuse and criminal justice collaboration under Sec. 201
$10 million for reentry research under Sec. 245

The appropriations bill also provides $108,493,000 for reentry programs in the Department of Labor, including $15 million for a transitional jobs grant program. For more information about the Second Chance Act, click here.

Unfortunately, I did not find any programs so far implemented in the State of Georgia. If you know of some, please respond with a comment to this post. Nevertheless, this enactment which was initiated during the Bush Administration is further evidence of policy support for programs which seek to find solutions to criminal behavior which involves less straight imprisonment and more targeted programs designed to help offenders find other more productive life solutions. There are many helpful pronouncements in the legislative history.

For text of the Second Chance Act, click here.
Click here for a New York Times article about the act at the time of its passage.

Come On Up to the Podium! A Sentencing Tidbit on the Importance of Family Support to Determining a Reasonable Sentence

2009-12-30T00:18:00.002-05:00

Next time you find yourself staring at a judicial look which seems to say, why do I need to hear from the defendant's family? Consider quoting Attorney General Eric Holder's December 15 remarks during his visit to Morehouse College.

"Research reveals that incarcerated men who maintain strong family ties while behind bars are more successful when they are released. They have an easier time finding jobs and staying off drugs. In fact, a recent study done for the Department of Health and Human Services found that people who were married or in committed relationships were half as likely to use drugs or commit new crimes after they were released from incarceration."

Thus, a defendant's family ties and the family's resolve to remain supportive to the incarcerated person are relevant and important to the 3553 calculus under Booker. While this is something we all knew already, it is nice to be able to quote the nation's chief law enforcement officer on this point.

For complete text of Holder's introductory remarks, click here.

It's official... Sally Yates nominated to serve as United States Attorney for the Northern District of Georgia on Christmas Eve.

2009-12-25T00:05:00.003-05:00

President Obama today nominated Sally Yates to serve as the United States Attorney for the Northern District of Georgia.

For AJC article, click here.

Federal Stowaway Charge Does Not Require Intent to Enter the United States for Conviction

2009-12-23T20:30:00.004-05:00

A Nigerian soccer player boarded a commercial vessel (the Ref Vega pictured at left) hoping to make his way to Chile. Instead he was apprehended and found himself in the United States charged under the federal stowaway statute, 18 USC 2199, in the Southern District of Alabama.

Section 2199 has only been a felony since 2006. It reads in pertinent part, "Whoever, with like intent, having boarded, entered or secreted himself aboard a vessel or aircraft at any place within or without the jurisdiction of the United States, remains aboard after the vessel or aircraft has left such place and is thereon at any place within the jurisdiction of the United States ... shall be fined under this title, or imprisoned not more than 5 years, or both." With like intent apparently refers to the earlier clause which states, "with intent to obtain transportation."

The defense sought to litigate the issue of intent to enter the United States at the trial. However, the district court ruled that intent to enter the United States is not required for conviction. Today the Eleventh Circuit affirmed.

United States v. Banjoko, ___ F.3d ___, 08-00364 (11th Circuit 2009) (Edmondson, Birch and Black)

A trial with proper venue is a Sixth Amendment right, but no new trial where defendant failed to object to transfer.

2009-12-22T15:53:00.003-05:00

[Following is a capsule summary only. More details are found in our Blues Newsletter.] Jefferson County Commissioner Gary White was charged with accepting bribes from sewer companies which had contracts with Jefferson County, Alabama in the Northern District of Alabama. Prior to the trial, the defense requested that the case be transferred within the Northern District of Alabama from Birmingham to Tuscaloosa, because of prejudicial pretrial publicity. The district court felt Tuscaloosa was still too close, so the court transferred the case out of the district to Montgomery, in the Middle District of Alabama. Neither side objected.

After the Montgomery jury returned with a conviction, the defendant asked for a new trial arguing that it was error to transfer the case out of the district sua sponte and that it was a violation of the Sixth Amendment. The district court reluctantly granted a new trial. On the Government's interlocutory appeal, the Eleventh Circuit reversed finding that although trial in the district with proper venue is a Sixth Amendment right, the defendant waived his right to trial in the Northern District of Alabama by failing to object. The Supreme Court established that the Sixth Amendment guarantees defendants a right to be tried in the district with proper venue and also guarantees defendants the right to have their jury selected from that district as well in Johnson v. United States, 351 U.S. 215 (1956).

News article about the decision.
Text of the Eleventh Circuit's opinion in United States v. Gary White.

Let's Start Blogging!

2009-12-19T01:02:00.008-05:00

As promised, the new Federal Defender interactive blog is here (ahead of schedule)! Please join us in keeping each other up to date and armed with the most current developments in federal criminal law. We also hope to inspire each other to continually raise the level of practice in our district for the benefit of our clients. We welcome your comments and questions on our postings. If you submit questions, or have ideas for new posts, we will moderate the comments and setup new post topics where appropriate. We encourage you to subscribe to this blogspot so that you will receive the most up to date announcements from our postings. Special thanks to our own Rhonda Turner, FDP CSA, for pointing us in the right direction. We look forward to blogging with you!

Sentencing Commission Issues Report on History of the Child Pornography Guidelines

2009-12-19T00:40:00.001-05:00

Back in October 2009, responding to growing concerns about the long lengths of child pornography sentences, the United States Sentencing Commission issued a report entitled History of the Child Pornography Guidelines. This report details how sentencing for child pornography defendants has tripled over the last several years. This report provides an interesting perspective and is a spring board to ideas for advocacy.

A Great Resource for Defenders from Don Samuel!

2009-12-18T21:38:00.004-05:00

Don Samuel, of Garland, Samuel & Loeb, author of the Eleventh Circuit Criminal Handbook, has completed a thorough review of helpful caselaw from the Supreme Court and federal appellate courts. With over a thousand pages of winning citations, the new book is a must have for all federal criminal defense practitioners. Don has generously made this book available for free in electronic format. Click here for the link. Thanks Don!
Favorable and Noteworthy Decisions in the Supreme Court and the Federal Appellate Courts.

Child Pornography Restitution Claims Must Be Supported by Proof of Proximate Cause in N.D.Ga.

2009-12-18T21:05:00.016-05:00

The Government has started seeking restitution against defendants convicted of child pornography possession and distribution offenses on behalf of several known child victims who have filed restitution claims around the country. The first case to reach this issue in our district, United States v. Vanbrackle, 2:08-CR-042-WCO-SSC, is a defense victory. Judge O'Kelley ruled (over the Government's objection) that proof of proximate cause must be made out before the court is authorized to award restitution in a child pornography case (just like in every other type of case). Kudos to Rick Holcomb for submitting an excellent brief, assisted by Jeff Ertel and Nicole Kaplan. The briefs and order in Vanbrackle may be found on Pacer.

PLEASE CONTACT OUR OFFICE 404-688-7530 IF YOU HAVE A CASE IN WHICH THERE IS A CHILD PORNOGRAPHY RESTITUTION CLAIM. JEFF ERTEL AND NICOLE KAPLAN ARE SPEARHEADING THIS ISSUE.

Following are a collection of several significant cases from other districts ruling on this issue:

United States v. Berk, D.Maine, 08-CR-212-P-S (denying restitution).

United States v. Cook, D. Alaska, 4:08-CR-0024 (denying restitution).

United States v. Zane, E.D.Ca, 1:08-CR-0369 (granting restitution).

United States v. Paroline, E.D.Tx, 6:08-CR-61 (denying restitution).

Update: The New York Times did an article on "Amy," the alleged victim in many of the child pornography restitution cases. There are significant inaccuracies in the article. With that caveat, click here for a link to that article.

Northern District of Georgia Local Rules Change

2009-12-18T20:45:00.004-05:00

The Local Criminal Rules for the Northern District of Georgia have changed. Before the local rules changed, pretrial motions were due in 10 days, excluding weekends and holidays. Under the new rules, pretrial motions are due in 14 days straight, including weekends and holidays. Most of the time this change makes no difference to the time period, but there are times when the new method of calculating the deadline does make a difference. Be aware of the change.

Competitive Crack Cocaine Farmer's Market Supported Conspiracy Charge Where Individual Dealers Combined Efforts to Ensure Steady Source of Supply to Meet Market Demand.

2009-11-10T20:39:00.000-05:00

United States v. Corey Brown and Gregory Hall, ___ F.3d ___, 07-13007 (November 10, 2009) (Alarcon, Carnes, Faye)

[This is a capsule summary of one of the issues discussed in Brown. Other issues and deeper analysis to be found in our Blues Newsletter.] Two defendants were convicted at trial of various charges including drug conspiracy charges. The facts shown at trial established that the defendants were among several individuals who sold drugs at various trees in a particular neighborhood, sort of like a farmer's market for crack cocaine. Although defendants sold drugs at various assigned trees, and were frequently in competition with one another, the Eleventh Circuit upheld the conspiracy convictions on the basis that their cooperative efforts combined towards a common goal of keeping the market supplied with drugs. Also, a consistent series of transactions made the area attractive to purchasers which was to their common benefit. The opinion drew support from another case from last year, United States v. Westry in which three drug dealers maintained adjacent crack houses which competed with one another at times.