In Hot Pursuit - Federal Bar Association

In Hot Pursuit
of Federal Criminal Justice
A Deluge in the Desert:
Operation Streamline in Tucson, Arizona
Geoffrey T. Cheshire
It is a typical weekday morning at the
Evo A. DeConcini federal courthouse in
Tucson, Ariz. The Special Proceedings
Courtroom on the second floor is a busy
place. CJA panel attorneys and assistant
federal public defenders are arranged
at small desks in the courtroom well
and in the jury box. This is Operation
Streamline.
The north side spectator seating is
filled with defendants—up to 80 brought
in two shifts. Men and women, old and
young, still in clothes with the rips and
grime of a hard crossing. Tongues of
shoes lolling out, their laces confiscated,
they shuffle in belly and ankle chains
when called to meet with their lawyer.
Their lawyer, who must speak
Spanish, will tell them they are charged
with either the petty offense of illegal
entry into the United States without
inspection (a violation of 8 U.S.C. §
1325) alone, or in combination with
a felony count of illegal re-entry after
removal (8 U.S.C. § 1326). They learn
that at 1:30 p.m. they will be brought
back to the same courtroom, where a
judge will be present to inform them of
their rights and, should they choose, take
their guilty pleas and sentence them.
Up to 80 defendants will be processed
in a typical day, the majority having no
criminal history. Those with no criminal
record or removals will be sentenced
to time served and be bussed back to
Nogales, Sonora, by that evening.
The other choice for illegal entry
defendants is to set their case for trial.
However, there will be at least 30 days,
before trial, and they will have to spend
that time in custody. Today, like most
days, no one wants a trial.
Those charged with both illegal entry
and re-entry counts—the so-called “flipflop” cases who have prior deportations
or prior convictions—learn that they
have written plea agreements that give
them a stipulated sentence of anywhere
from 30 to 180 days if they plead to illegal entry and waive any appeal rights. In
exchange, the government will dismiss
the felony.
The lawyer will also likely talk to
them about their journey. Some will tell
of being robbed by bajadores in Mexico
or in the United States. Some will have
guides who abandoned them in the desert. Others will have turned themselves
in after walking for days, in extremes of
heat and cold, without enough water and
with blistered feet.
During a lunch break, the defendants
will have a sack lunch and the chance
to meet with a representative from the
Mexican Consulate.
At 1:30 p.m., all defendants are
STREAMLINE continued on page 2
Also IN THIS ISSUE
Continuing to Crack the Disparity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Who Is Listening Now? Wiretaps and Electronic Surveillance in White
Collar Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Supreme Court Updates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Big USSC News Regarding Recency Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
More Clients May Become Eligible for Probation on November 1 . . . . . . . . . . . . . . . . . . 8
Supreme Court Upholds Bureau of Prisons’ Calculation of Good Time Credits . . . . . 11
Padilla v. Kentucky: Defense Attorney Must Inform Noncitizen of
Deportation Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Published by the
Federal Bar Association
Criminal Law Section
Summer 2010
Supreme Court
Narrows Scope of
Honest Services
Fraud Statute
Mike Sklaire
On June 24, 2010, the Supreme Court
released opinions in three cases that unanimously limited the “honest-services fraud”
statute to only those cases involving bribery or kickback schemes. The decisions
in Skilling v. United States, No. 08-1394,
Black v. United States, No. 08-876, and
Weyhrauch v. United States, No. 08-1196,
upheld the constitutionality of the “intangible rights” found in the fraud statute, 18
U.S.C. § 1346, but refused to expand the
types of cases that could be brought under
the statute. These decisions immediately
call into question prosecutions of public
officials and private business people that
are based on “undisclosed self-dealing,”
conflicts of interests or violations of ethics
rules. The Court did not rule out the possibility that undisclosed self-dealing could be
criminalized explicitly by statute, but noted
that Congress “would have to employ standards of sufficient definiteness and specificity to overcome due process concerns.”
In Skilling v. United States, the petitioner, the former chief executive officer of Enron, argued that his conviction
should be reversed—based, among other
factors, that the honest-services fraud
statute under which he was convicted
was unconstitutionally vague. All nine
Justices voted to vacate the judgment
and remand the case back to the district
court. The Court, per Justice Ginsburg,
noted that while Skilling was convicted
of making misrepresentations to shareholders about the fiscal health of the
company, there was no evidence that
Skilling solicited or accepted payments
from any third parties in exchange for
the misrepresentations, which is the only
way it would have fit within the confines
of § 1346. The Court remanded to the
HONEST SVCS continued on page 9
2
IN Hot Pursuit
Summer 2010
STREAMLINE continued from page 1
brought back to the room, wireless
headphones for interpretation are distributed, names are called and answers
of presente are received, and lawyers
announce their presence. Then the plea
colloquy begins.
First the defendants are addressed as
a group, the presiding magistrate judge
explaining their right to trial, determining whether the decision to plead
guilty has been made, whether they
have had enough time to consult with
their assigned attorney, and whether
the plea is being made knowingly and
voluntarily. The precise order and level
of detail vary from magistrate to magistrate. (The Tucson magistrates typically rotate presiding over Operation
Streamline cases, each taking a week
in turn.)
Then defendants are then called up
in smaller groups of five to 10 and lined
up in front of microphones arranged
before the judge, like uncomfortable
and disheveled contestants in a peculiar
talent contest. The judge will then ask
whether each defendant knows what
he is charged with, take a brief factual
basis, ask the defendant to enter a formal plea of guilty, give the attorneys
and defendants an opportunity to speak,
and impose a sentence. Most lawyers
and defendants decline to address the
court beyond the necessary formalities
of the change of plea.
The defendants are then excused
to follow the marshals back to the
cellblock, their headsets removed, and
attorneys returning to their seats to
await their next client’s call to the
front. Lawyers often grab a dollop of
antibacterial gel from one of the pump
bottles on the desks placed throughout
the courtroom.
#
Operation Streamline (or OSL) is
a Department of Homeland Security
program designed to deter illegal entry
in certain high-traffic areas of the U.S.Mexico border. Tucson has become
the most active Border Patrol sector,
accounting for half of all Border Patrol
apprehensions and four out of 10 marijuana seizures. In Tucson, prosecutions
are not handled by the U.S. Attorney’s
Office directly, but rather DHS attorneys on detail.
Since 2008, the Tucson OSL program has averaged 70 daily prosecutions. Supporters of the program point
to a continued decline in estimated illegal entries since the program’s implementation. But the numbers are equivocal. Critics counter with the observation
that the decline has coincided with an
unprecedented U.S. economic slump,
which has hit immigrant-employing
industries like construction especially
hard. Further, they cite the small percentage of illegal entrants prosecuted
through the program.
There have also been direct legal
challenges. For example, the Tucson
OSL change of plea procedure was challenged on appeal by Assistant Federal
Public Defender Jason Hannan, leading
to the Ninth Circuit’s published opinion consolidated under United States v.
Roblero-Solis on Dec. 2, 2009. Hannan’s
clients wished to plead guilty, and did
so. They were sen-tenced to time served
and, per Operation Streamline practice,
were removed to Mexico that same
afternoon.
During the changes of plea, Hannon
made various objections to the en masse
proceedings on behalf of six clients,
attacking the proceedings’ compliance with Fed. R. Crim. P. 11 and
the Constitution. First Hannan asked
that the presiding U.S. magistrate judge
“determine that each defendant understood their rights, the factual has been
inquired of each defendant individually,
and that each defendant have the opportunity to speak, to be addressed by the
court personally, and to allocute to the
court with defense counsel.”
The Ninth Circuit’s opinion evinces a
discomfort with Operation Streamline’s
assembly line procedures and holds that
the program’s bulk changes of plea,
while “intended to preserve the rudi-
ments” of Rule 11, adopted shortcuts
that, while “understandable” and “reasonable” in the abstract, did not comply
with Rule 11.
We cannot permit this rule to be
disregarded in the name of efficiency nor to be violated because
it is too demanding for a district
court to observe. We act within
a system maintained by the rules
of procedure. We cannot dispense
with the rules without setting a
precedent subversive of the structure. Accordingly, on this challenge by an intrepid federal public
defender to the Tucson court’s
taking of pleas en masse, we hold
the procedure to be contrary to
Rule 11.
Before accepting a guilty plea, “the
court must address the defendant personally in open court” and determine
that the defendant understands his rights
and the consequences of his decision.
Does the requirement of a “personal”
address mandate individual proceedings? No—the judge must act in person
and address the defendant, not their
attorney. However, “no judge, however
alert, could tell whether every single
person in a group of 47 or 50 affirmatively answered her questions when the
answers were taken at the same time.”
Having found error in the proceedings, the court nevertheless declined
to find structural error. Further, as the
defendants and counsel did not renew
objections or insist on further proceedings following the change of plea and
initial objections, and Rule 11 errors
were not preserved for appeal, and a
plain error standard applied. Under this
standard, the defendants failed to show
that the error affected substantial rights,
and all convictions were upheld.
The practical effect of Roblero-Solis
on Operation Streamline in Tucson has
been to slow slightly the change of plea
process, and thereby limit the potential number of defendants that can be
Published by the Criminal Law Section of the Federal Bar Association
Summer 2010
processed. Most magistrates continue
with en masse colloquies, but then call
defendants up in groups of five to seven
to establish a factual basis, take their
formal plea of guilty or not guilty, and
determine whether the plea is voluntarily given.
#
Operation Streamline is an initiative that, like much of our criminal
justice system, deals with a problem
that is not, or cannot be, effectively
dealt with elsewhere. Endemic poverty in Mexico, coupled with the lack
of effective opportunities for many of
its citizens to advance through education or hard work, public corruption,
and increasingly powerful and violent
criminal syndicates, create a huge push,
while U.S. demand for low wage immigrant labor in the construction, food
processing, and service industries creates a strong pull.
Despite the relatively high number of prosecutions permitted by OSL
proce-dures, such prosecutions account
for only a small percentage of overall Border Patrol apprehensions (let
alone illegal entrants who successfully
penetrate the border region). Intending
immigrants often endure difficult and
expensive journeys through the interior
of Mexico, a crime-ridden and violent
IN Hot Pursuit
border region, multi-thousand-dollar
agreements with human smugglers to
cross to and be transported in the United
States, and multi-day treks through
remote and incredibly inhospitable desert terrain, all for the chance to work at
a low wage manual labor job. Of practical concern, therefore, is the effect of a
relatively short period of detention on
the overall Southwest border struggle
with illegal immigration.
Further, there are side effects.
Processing OSL cases takes a great
deal of judicial, detention, and Criminal
Justice Act resources. The defense bar,
prosecution, agents, and judicial officers may become inured to a processing
mentality, diluting expectations of and a
knowledge of how to engage in appropriately robust litigation.
Apart from the concerns adduced in
Roblero-Solis about the fairness and legality of the OSL procedure itself, will
a judge accustomed to taking upwards
of 80 changes of plea and sentencings
within a two-hour period retain the
same level of patience and attentiveness
to the minutia of other proceedings?
Will federal agents accustom themselves to writing perfunctory reports?
Will prosecutors react with disbelief
at challenges which are routine in less
hectic districts? These and other questions should trouble the minds of policy
makers charged with starting or maintaining high volume programs.
A fair question arises for defense
attorneys or other concerned participants: why take part in such a process?
Speaking only for myself, there are
a few reasons, none of them entirely
satisfactory.
First is a spirit of service and duty.
You are assigned clients and it’s your
job to represent them to the best of your
ability. They are in trouble and they
need your help, experience, and advice.
In general, Operation Streamline defendants simply want to be released from
detention as soon as possible. The best
advice to help them do that is for them
to plead guilty, be sentenced, and get
processed for removal to their home
country as soon as possible.
And here we have what may be
healthy for the system as a whole in tension with what is best for the individual
defense client. What to do about such
unresolved tension? Perhaps write an
article. IHP
Continuing to Crack the Disparity
Things are starting to heat up in the
world of crack cocaine penalties. On
March 17, 2010, the full Senate approved
a bill, S. 1789, that would reduce the
sentencing disparity between federal
crack and powder cocaine offenses.
The bill adopts an 18:1 ratio amount of
powder cocaine to crack cocaine triggering the same sentence. As a result,
28 grams of crack cocaine will trigger
a five-year mandatory minimum prison
sentence and 280 grams of crack will
trigger a 10-year mandatory minimum
prison sentence. The bill also would
eliminate the mandatory minimum sen-
tence for simple possession of crack.
Additionally, the legislation would
direct the U.S. Sentencing Commission
to enhance penalties for aggravating
factors like violence or bribery of a law
enforcement officer.
As passed, the legislation would not
apply retroactively. The bill now goes to
the House of Representatives. The House
has its own version which supports a
1:1 crack/powder ratio (H.R. 3245).
It passed out of the House Judiciary
Committee in July of 2009 but has not
advanced to the full House. Thus, we’ll
have to wait and see what comes out of
the House and how Congress resolves
any differences between the bills. It is
too early to tell what the final version
will look like or if there will be any
effort to make it retroactive. However,
it does look like things are moving forward again and there likely will be an
additional change, though maybe not a
1:1 ratio. Defense counsel may seek to
delay crack cases to deal with the new
guidelines in the near future. The Senate
bill gave the Sentencing Commission
90 days after final passage to get the
guidelines in line with the new mandatory minimum amounts. IHP
Published by the Criminal Law Section of the Federal Bar Association
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IN Hot Pursuit
Summer 2010
Who Is Listening Now? Wiretaps and Electronic Surveillance in
White Collar Investigations
Craig S. Denney
For many decades, federal law
enforcement has used electronic surveillance, including wiretaps, to obtain
incriminating evidence for criminal
investigations of mobsters and drug traffickers. From a prosecutor’s viewpoint,
there is no better evidence in a criminal
case than being able to play the defendant’s own incriminating words for the
jury.
John Gotti learned this lesson the hard
way after being acquitted in several jury
trials. The FBI finally caught the “Teflon
Don” by bugging an apartment above a
social club that Gotti frequented. With
the FBI hearing every word, Gotti talked
openly with his business associates about
his criminal activities. The prosecution
played numerous recordings from the
bugs at trial. Gotti was finally convicted
based largely upon his own words.1
Wall Street executives have been
largely immune from the specter of
wiretaps on business telephones and
corporate board meetings. Times have
changed. To avoid a paper trail, executives are more circumspect in what they
put down on paper and what they type in
e-mails.2 Now, federal law enforcement
is using the power of Title III3 wire interception and electronic surveillance to go
after oral communications of targets in
white collar investigations.
The use of electronic surveillance
evidence to arrest billionaire Raj
Rajaratnam4 of the hedge fund Galleon
Group on insider trading charges has
many business executives thinking twice
about what they say on the telephone.
Media reports and legal experts noted
that the use of wiretaps to collect evidence in a white collar case was dramatic
change in investigation techniques.5
Distinguishing between wiretaps and
other types of electronic surveillance.
There is some misconception as to
what constitutes a wiretap under Title III.
By statute, wire communication “means
any aural transfer made in whole or in
part through the use of facilities for the
transmission of communications by the
aid of wire, cable, or other like connection between the point of origin and the
point of reception ... furnished or operated by any person engaged in providing
or operating such facilities for the transmission of interstate or foreign communication or communications affecting interstate or foreign commerce.”6
Contrary to television and movie depictions, consensual bodywire or consensually monitored telephonic recordings7 by
a confidential informant or a cooperating
witness are not wiretaps. Pen Registers
and Trap and Trace orders8 are also not
wiretaps.
The federal statute governing the
recording of telephone conversations is
18 U.S.C. 2511(2)(d). This statute states,
in relevant part:
It shall not be unlawful under this
chapter for a person not acting
under color of law to intercept a
wire, oral, or electronic communication where such person is a party
to the communication or where
one of the parties to the communication has given prior consent
to such interception unless such
communication is intercepted for
the purpose of committing any
criminal or tortious act in violation
of the Constitution or laws of the
United States or of any State.
Telephone conversations fall within
the ambit of “wire communications.” Ali
v. Douglas Cable Communications, 929
F. Supp. 1362, 1375-76 (D. Kan. 1996)
(“A telephone conversation is a wire conversation.”) (internal quotation omitted).
Thus, federal law only requires one party
to a telephone conversation to consent to
the recording. See Roberts v. Americable
Intern. Inc., 883 F. Supp. 499, 503 (E.D.
Cal. 1995) (stating that under 28 U.S.C.
§ 2511(2)(d), “the interception of oral
communication is not unlawful ... where
a party to the conversation is either the
one who has intercepted the conversation or who has consented to the interception, and the interception is not for
the purpose of committing any criminal
or tortious act”).
A party is exempt from the wiretap
prohibitions of Title III where at least
one of the parties to the telephone conversation has consented to the interception. Williams v. Poulos, 11 F.3d 271,
281 (1st Cir.1993); Watkins v. L.M.
Berry & Co., 704 F.2d 577, 580-81 (11th
Cir.1983). While consent under Title III
need not be explicit and may be implied,
Williams, 11 F.3d at 281, it is “not to be
cavalierly implied”, Watkins, 704 F.3d
at 581. Implied consent is consent in
fact, which is inferred from surrounding
circumstances indicating that the party
knowingly agreed to the recording. Id.
Aside from law enforcement obtaining a court order to listen to phone conversations, federal law allows a business
to record telephone calls in the “ordinary
course of business” if criteria is followed
for the recordings. See Adams v. City of
Battle Creek, 250 F.3d 980, 984 (6th
Cir.)(“‘Ordinary course of business’ is
not defined in the statute, but it generally
requires that the use be (1) for a legitimate business purpose, (2) routine and
(3) with notice.”), pet. for reh’g en banc
denied, (6th Cir. 2001).
Title III Process and Requirements
Unlike a grand jury subpoena or
search warrant, a wiretap involves a substantial amount of work on law enforcement’s behalf before it can be authorized. In a nutshell, a Title III requires
a showing of probable cause, necessity,
and exhaustion of traditional investigative techniques. The wiretap statutes
(18 U.S.C. § 2510 et seq.) have explicit
and detailed requirements in order to
establish probable cause9 exists for a
particular telephone to be tapped. The
Published by the Criminal Law Section of the Federal Bar Association
Summer 2010
law enforcement agent must provide a
lengthy affidavit that explains the factual basis for the belief that a particular telephone (the “target telephone”)
is being utilized for criminal activity.
The affidavit becomes the basis for an
application by the assistant U.S. attorney (AUSA) who will review, edit, and
rewrite the document. After the AUSA
approves the affidavit, he or she must
then submit the draft affidavit and Title
III application to the Department of
Justice (DOJ) in Washington, D.C., for
review and approval. Only after approval by the DOJ can the AUSA present the
Title III application and affidavit to a
federal judge for review and authorization for 30 days of wire interception on
the target telephone.
Showing Necessity for a Wiretap
The government must show the
necessity for the wiretap by proving it
has exhausted traditional investigative
techniques in the process.10 Traditional
tools used by law enforcement include
grand jury subpoenas, confidential
informants, search warrants, pen registers and trap & trace devices, trash
searches, etc. The government must
show how these tools have been used
and why they have failed to uncover the
criminal conduct. When the government
fails to show necessity, the wiretap
evidence may be suppressed.11 In the
Galleon investigation, the defense filed
motions to suppress the wiretaps based
on the allegations that necessity was
not established because the government
had evidence from other testimony and
documents produced pursuant to subpoenas from the SEC.11
DOJ Approval Before Taking a Wiretap
Application to the Court
The DOJ’s Office of Enforcement
Operations (OEO) must review and
approve the wiretap application and
affidavit before the prosecutor ever presents the documents to a federal district
court judge to review. OEO acts as a
gatekeeper for Title III applications. Its
attorneys scrutinize wiretap affidavits to
determine whether or not necessity has
IN Hot Pursuit
been established for interception of the
target telephone. The affidavit is often
rewritten several times if it appears that
the law enforcement agents have not
articulated all the traditional investigative efforts that have been attempted in
the case.
Once the OEO approves the affidavit, a DOJ associate attorney general
provides authorization for the AUSA
to present the Title III application and
affidavit to the court for review.12 Upon
approval, the AUSA and agents have
the responsibility of adhering to minimization requirements. Even with the
wiretap order, the agents are only permitted to listen to pertinent telephone
calls that are associated with the criminal offenses under investigation. Agents
who fail to minimize (i.e., stop listening) during nonpertinent phone calls
run the risk that the wiretap evidence
may be later suppressed. The government also is required to submit periodic
reports (every 10 days) to the court that
provide the number of calls that were
intercepted and a summary of information on pertinent calls.
After the 30-day period of interception ends (and assuming there is
no extension granted by the court),
the government must promptly seal the
tapes.13 Within a reasonable time but not
later than 90 days after interception, the
government must send out notices of
interception to anyone who was intercepted on the wiretap.14 Prosecutors
will often seek delays in sending out
the notices when there is an ongoing
investigation. Eventually, the notices go
out and the interceptees receive official
word that the government was listening to their conversations on the target
telephone.
Conclusion
DOJ is now aggressively using
wiretaps and electronic surveillance
in federal white collar investigations.
The recent use of these tools to obtain
evidence in white collar investigations
should place executives on notice that
they need to be concerned who may
be listening to conversations on tele-
phone calls when criminal activity is
suspected. IHP
Craig S. Denney is counsel at Downey
Brand LLP, board certified in criminal
law by the National Board of Trial
Advocacy. He is a former federal prosecutor who represents corporate and
individual clients in white collar criminal defense and government regulatory
matters in federal and state courts in
Nevada and California.
Endnotes
1
Selwyn Raab, Five Families (St.
Martin’s Press, New York, 2006).
2
See United States v. Frank Quattrone,
(S.D.N.Y.), federal indictment charged
executive with obstruction of justice
based on e-mail message to coworkers
during federal investigation regarding
the firm’s document destruction policy,
p. 27, ¶39 (“We strongly suggest that
before you leave for the holidays, you
should catch up on filing cleaning.”).
3
“Title III” gets its name from the
Omnibus Crime Control and Safe Streets
Act of 1968. Wiretaps are now covered
in 18 U.S.C. §§ 2510–2522.
4
Glovin, David, David Scheer, and
Bob Van Voris, Galleon Case Ushers
in Wiretaps for Financial Crimes,
Bloomberg (Oct. 17, 2009).
5
Kiviat, Barbara, Arrests Open a
Window on Hedge-Fund Culture, Time
(Oct. 21, 2009) (Stetson University law
professor Ellen Podgor was quoted in
the article stating: “This is a monumental step for the government ... This is not
the typical way you do a white-collar
case.”).
6
18 U.S.C 2510(1)
7
Bodywires refer to placement of a
concealed recording device on an informant for a face-to-face meeting with a
target. No court authorization is needed
for this type of investigative work in
federal investigations. Consensual telephone monitoring involves the informant making a recorded call in the presence of the agent who records the audio
conversation. No court authorization is
WIRETAPS continued on page 7
Published by the Criminal Law Section of the Federal Bar Association
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IN Hot Pursuit
Summer 2010
Supreme Court Updates
Dolan v. United States,
No. 09-367
In a 5-4 vote, with Justice Breyer writing for the majority, the Supreme Court
held today that in some circumstances,
a sentencing court that has missed the
90-day deadline for entering an order of
restitution under the Mandatory Victims
Restitution Act may nevertheless order
restitution. According to the majority,
the deadline for ordering restitution under the act is not jurisdictional and not
a “claims processing” rule, but one that
creates a time-related directive that is legally enforceable but does not necessarily deprive the judge to take power even
when the deadline is missed. In this
case, the sentencing court made clear
its intent to order restitution before the
expiration of the deadline, but did not
have enough information to determine
the amount. As a result, the fact that the
judge “filled in the blank” on the actual
amount of restitution three months after
the deadline had passed did not violate
the statute. In response to the defendantpetitioner’s concern about the appealability of a judgment that does not yet
include the amount of restitution, the
majority advises defendants to ask the
district court to order restitution in a
timely manner or seek mandamus if it
does not.
There was an interesting grouping
in this close call: Chief Justice Roberts,
joined by Justices Stevens, Scalia, and
Kennedy, dissented. They would hold
that restitution must be ordered at the
time of sentencing if at all. With an actual exclamation point, Justice Roberts
writes “[w]hat an odd procedure the
Court contemplates!” to put the defendant in the position of having to ask
the district court to impose a harsher
sentence or to seek the drastic remedy
of mandamus if he is worried about the
finality of his judgment for purposes of
appeal. He also notes that this decision
does not answer the question of the validity of a restitution order that is entered
after the deadline where the district court
had not expressed its intent to order
restitution. Opinion at www.supreme
court.gov/opinions/09pdf/09-367.pdf.
Carachuri-Rosendo v. Holder,
No. 09-60
In a unanimous decision, with Justice Stevens writing for the Court, the
Supreme Court put the brakes on an extension of Lopez v. Gonzales and ruled
that a second or subsequent crime of
possession of drugs is not an aggravated
felony under 8 USC § 1101(a)(43) when
the underlying state conviction is not
based on the fact that there was a prior
conviction.
The petitioner in this case, a lawful
permanent resident who has lived in the
United States since he was five years old,
was seeking discretionary relief from
deportation after he committed two misdemeanor drug possession offenses in
Texas. For the first offense, possession
of less than two ounces of marijuana, he
received 20 days in jail. For the second,
possession without a prescription of one
tablet of a common anti-anxiety medication, he received 10 days in jail. Though
it could have, Texas did not convict him
on the second possession offense as a
recidivist.
Parsing the “maze of statutory crossreferences” at issue (and not repeated
here), the Court rejected the Fifth Circuit’s “hypothetical” approach, which
would find a state drug offense an “aggravated felony” if the individual could
have been charged as a recidivist, even
though he was not. In the process, the
Court discussed the meaning of “felony” and “aggravated,” and stated that it
was “wary” of the government’s reading
of the English language. It also pointed
to the fact that the decision to seek a
recidivist enhancement lies within the
prosecutor’s discretion, which was not
exercised here. It ultimately rejected
the government’s position that the mere
possibility, no matter how remote, that
a two-year sentence might have been
imposed in a federal trial is a sufficient
basis for concluding that a person convicted of state misdemeanors only who
was not charged as a recidivist has been
“convicted” of an “aggravated felony.”
Of special interest, the Court noted
that a comparable federal defendant
would be looking at probably six months
under the guidelines, and that “the Government has provided us with no empirical data suggesting that ‘even a single
eager Assistant United States Attorney’
has ever sought to prosecute a comparable federal defendant as a felon. The
Government’s ‘hypothetical’ approach
to this case is therefore misleading as
well as speculative.”
Justices Scalia and Thomas each filed
an opinion concurring in the judgment
only. Opinion at www.supremecourt.
gov/opinions/09pdf/09-60.pdf.
Holland v. Florida,
No. 09-5327
In a 7-2 vote, with Justice Breyer
writing for the majority, the Court reversed the Eleventh Circuit’s decision
that the petitioner’s case did not constitute “extraordinary circumstances” for
purposes of equitable tolling under the
AEDPA. This was not a claim of “garden variety” attorney negligence, but attorney misconduct.
In this case, the attorney missed the
filing deadline and failed to communicate, to put it briefly. The majority rejected the district court’s finding that the
petitioner had not acted diligently, as
the record showed that he had diligently
pursued his rights by writing his attorney, providing research, repeatedly asking that the attorney be removed from
his case, and finally filing his own federal habeas petition on the day he found
out the filing period had expired. It also
rejected the Eleventh Circuit’s rigid per
se rule for “extraordinary circumstances,” which it found to be difficult to reconcile with general equitable principles
and because it fails to recognize that
sometimes an attorneys unprofessional
conduct can be so egregious that it con-
Published by the Criminal Law Section of the Federal Bar Association
Summer 2010
stitutes extraordinary circumstances
warranting equitable tolling.
Because the Eleventh Circuit had relied on an erroneous test, the Court re-
IN Hot Pursuit
manded the case for further proceedings.
Justice Alito filed an opinion concurring
in part and concurring in the judgment.
Justices Scalia filed a dissenting opin-
ion, joined by Justice Thomas except for
Part I. Opinion at www.supremecourt.
gov/opinions/09pdf/09-5327.pdf. IHP
Big USSC News Regarding Recency Points
On April 7, 2010, the U.S. Sentencing Commission voted to amend
the Guidelines Manual by deleting
§ 4A1.1(e) (stating that two points are
added to criminal history score if the
defendant committed the offense less
than two years after release from imprisonment). 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, as set forth at pages 90-98 of
the defenders’ testimony to the commission, available at www.fd.org/pdf_lib/
FPD_Testimony%20of%20Meyers%20
and%20Mariano_FINAL.pdf.
The recency amendment (along with
other amendments being voted on this
cycle) were sent to Congress on May 1,
2010, and, if no further action is taken,
will be adopted on Nov. 1, 2010. This
does not mean, however, that courts
must continue applying recency points
in the interim. The court remains free
under 18 U.S.C. § 3553(a) and Supreme
Court precedent to disagree with any
part of the guidelines on policy grounds.
Defense counsel may argue that courts
should not assess recency points now
for the same reason that the commission
recommends abandoning them on Nov.
1: they do not reflect either increased
culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.
The commission has posted all of the
pending amendments on www.ussc.gov.
There may be an additional benefit for defendants resulting in a client
becoming safety valve eligible because
often those two recency points are disqualifiers for the safety valve two point
after Nov. 1, when if nothing is done
by Congress these recency points will
go the way of the dinosaur. There is
also a benefit to defendants to continuing sentencings past Nov. 1 in any case
if it will change the Criminal History
Category. IHP
Prosecutions. This requires the investigators to provide a lengthy affidavit with all facts to establish probable
cause.
10
“Necessity” in Title III refers to the
government’s showing that the goal of
the investigation could not be obtained
through normal investigative techniques.
See 18 U.S.C. § 2518(3)(c)(3)(“Upon
such application the judge may enter an
ex parte order ... authorizing ... interception of ... electronic communications ...
if the judge determines on the basis of
the facts submitted by the applicant that
... normal investigative procedures have
been tried and have failed or reasonably
appear to be unlikely to succeed if tried
or to be too dangerous.”); See Kalar,
Steven and Josh Cohen, Uncle Sam
Is On The Line: A Title III (Wiretap)
Primer. (Aug. 18-20, 2005).
11
Defense counsel should scrutinize
the Title III affidavit’s necessity section
which may sometimes contain boilerplate necessity language with short
shrift of facts showing the investigative
techniques were pursued and failed.
12
Kouwe, Zachery, Galleon Chief
Accuses S.E.C. of Violations, New York
Times (Nov. 25, 2009).
13
Title III applications by statute
must be approved by federal judges.
(18 U.S.C. §§ 2518 and 3127). District
court judges review wiretap applications. Magistrates handle applications
for pen registers and trap and trace
devices which are typically implemented on the target telephone in the investigation in order to develop probable
cause and necessity for the Title III.
14
The reference to tapes is antiquated
since the recordings are now digitally
recorded on a CD.
15
18 U.S.C. § 2518(8)(d).
WIRETAPS continued from page 5
needed for this investigative technique
in federal cases.
8
Pen Registers refer to a device that
records the phone numbers that a target
telephone calls. Trap and Trace refers to
a device that records the phone numbers
that call the target telephone. These
tools only record the phone numbers
not the conversations on the calls. Pen
Registers and Trap and Trace devices
are used to develop evidence to seek a
wiretap on the target telephone.
9
The probable cause for a wiretap
is more stringent that for a standard
search warrant. The evidence that the
target telephone is being used for criminal activity must be clearly shown in
the affidavit. Generally, as a rule of
thumb, DOJ wants a “dirty call” on
the target telephone within 21 days of
seeking the wiretap approval. See, e.g.,
DOJ Manual on Federal Narcotics
Published by the Criminal Law Section of the Federal Bar Association
7
IN Hot Pursuit
8
Summer 2010
More Clients May Become Eligible for Probation on November 1
Defendants in federal criminal cases
may soon be seeking to continue sentencings past Nov. 1, 2010. The U.S.
Sentencing Commission (USSC) has
sought amendment of § 5C1.1, which
will enlarge Zones B & C and make more
clients eligible for probation or split sentences. In the past, if the bottom of the
guideline range was not greater than six
months, the guidelines allowed a probated sentence with a condition of home
confinement for the minimum term (i.e.,
no more than six months), but after Nov.
1 this changes to eight months. In the
past, defendants were ineligible for probation without a variance or departure if
the smallest guideline number was over
six. Of course, all of this is premised on
Congress’ approval of the commission’s
proposed amendments.
On April 13, 2010, the USSC passed
two amendments designed to provide
courts with more sentencing options.
Part B of the amendment increases
Zones B and C by one level in each
criminal history category. Clients with
ranges of eight to 14 months (CHC I-IV)
and nine to 15 months (CHC V-VI) will
fall within Zone B rather than C; clients
in a range of 12-18 months (all CHC)
will fall within Zone C rather than D.
Part A of the amendment provides
for a “treatment departure” from Zone
C to Zone B. The amendment clarifies
§ 5C1.1 n.6 by giving examples of when
a treatment alternative departure from
Zone C to Zone B may be appropriate
for drug and alcohol abusers as well
as those who suffer from “significant
mental illness.” Under the terms of the
guideline, the court must find (A) “that
the defendant is an abuser of narcotics,
other controlled substances, or alcohol,
or suffers from a significant mental illness,” and (B) “the defendant’s criminality must be related to the treatment
problems to be addressed before a departure is warranted.” The court should
also consider “[(1)] the likelihood that
completion of the treatment program
will successfully address the treatment
problem, thereby reducing the risk to the
public from further crimes of the defendant and (2) whether imposition of less
imprisonment than required by Zone C
will increase the risk to the public from
further crimes of the defendant.”
The guidelines continue to recommend against the use of substitutes for
imprisonment for “most defendants
with a criminal history category of III or
above.” USSC § 5C1.1, n.7. The commission, however, voted to remove the
statement that “such defendants have
failed to reform despite the use of such
alternatives.” Removal of that language
may lead to defense arguments that a
client is an exception to the general rule
because he or she has not received treatment or that prior treatment was not adequate to meet the client’s needs.
Possible alternatives to incarceration
include:
Recognizing pretrial community confinement or home detention. Defense
counsel will likely argue “credit” for
defendants’ pretrial efforts and spend
the least amount of time in community
confinement, home detention, or imprisonment (for Class A and B felonies
where a minimal term of imprisonment
is statutorily required). There does not
appear to be any statute prohibiting a
court from deciding that a defendant has
already satisfied a condition of probation or supervised release. Take for example, the defendant in a 12-18 month
range who receives a sentence of probation with twelve months intermittent
confinement, community confinement,
or home detention. If before sentencing a client has already completed a 60
day residential treatment program and
remained on home detention for an additional 2 months, counsel may request
that the court find that the defendant has
already satisfied 4 months on the condition that he or she spend time in community confinement or home detention.
See also 18 U.S.C. § 3564(a) (“term
of probation commences on the day that
the sentence of probation is imposed,
unless otherwise ordered by the court”)
(emphasis added). The same reasoning
applies to defendants sentenced to terms
of imprisonment with supervised release. 18 U.S.C. § 3583(a) provides that
a term of supervised release commences
after imprisonment, but nothing in the
statute precludes a court from finding
that a condition of supervised release
has already been satisfied.
BOP placement in community confinement for the minimal term of imprisonment. The BOP memo has additional
options for defense counsel regarding
front-end designations to community
confinement in structuring sentences.
The court can recommend that BOP designate a RRC (Halfway House) placement. IHP
HONEST SVCS continued from page 1
district court to determine the extent to
which this conduct affected the other
convicted conduct. Six of the justices
in Skilling additionally held that he was
not prejudiced by pretrial publicity and
community prejudice resulting from the
collapse of Enron.
Similarly, in Black and Weyhrauch,
the Court vacated the convictions and
remanded the case to the district court
based in light of the Court’s decision in
Skilling. In Black, defendants were convicted of paying themselves “noncompetition fees” and then failing to dis-
close those fees. Since the scheme did
not involve any bribes or kickbacks, the
Court held that the jury instruction on
honest services fraud was improper and
sent it back to the district court to decide
whether the jury instruction constituted
harmless error. IHP
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Summer 2010
IN Hot Pursuit
Supreme Court Upholds Bureau of Prisons’ Calculation of Good
Time Credits
Geoffrey T. Cheshire
On June 7, 2010 the Supreme Court
issued the opinion in Barber v. Thomas,
No. 09-5201, upholding the Bureau of
Prisons’ method of calculating goodtime credits for federal inmates under
18 USC 3624(b). Petitioners challenged
the BOP’s iterative method of only
counting time actually served rather
than the entire sentence imposed, which
reduces the amount of good time a
prisoner can earn by about seven days
per year.
Justice Breyer, writing for the court,
found the BOP’s reading the most “natural,” that is, the least awkward. Under
this construction, 3624(b)(1)’s “term
of imprisonment” refers to taking time
a prisoner has actually served during a
year and then applying credit annually.
Becuase this reduces the time a prisoner
must serve, his good conduct credits
are reduced in proportion. The opinion
includes an appendix dedicated to the
contorted algebra required to calculate
credits under the BOP’smethod.
Justice Kennedy dissented, joined by
Justices Stevens and Ginsburg, advocating an interpretation different from
both the BOP and the prisoners. They
would, instead, define “term of imprisonment” as “the span of time that a prisoner must account for in order to obtain
release.” Under this reading, “term of
imprisonment” would have a more uniform meaning throughout the Code, and
would result in the same number of days
credit advocated by the prisoners.
Perhaps the single straightforward
conclusion from this tangle of calculations is that 3624(b) is unduly complex in application and defies clear
interpretation. Given the thousands of
aggregate days imprisonment at issue,
congressional reform to simplify good
conduct credits seems warranted. www.
supremecourt.gov/opinions/09pdf/
09-5201.pdf
Padilla v. Kentucky: Defense Attorney Must Inform Noncitizen of
Deportation Risk
Virginia Schlueter
On March 31, 2010, the Supreme
Court issued Padilla v. Kentucky, No.
08-651, a landmark Sixth Amendment
right to counsel decision that clarifies
the obligations of defense attorneys representing non-citizen defendants.
Mr. Padilla, a legal permanent resident from Honduras, was convicted of
drug transportation charges in Kentucky
state court pursuant to a guilty plea.
Faced with deportation, he brought
post-conviction proceedings alleging
ineffective assistance of counsel. Mr.
Padilla claimed that his counsel failed
to advise him of the immigration consequences of his guilty plea and even
reassured him that he “did not have to
worry about immigration status since
he had been in the country so long.”
The Kentucky Supreme Court denied
post-conviction relief, holding that the
lawyer’s erroneous advice did not constitute ineffective assistance of counsel
because deportation was only a “collateral” consequence of Mr. Padilla’s
conviction.
The Supreme Court reversed in a 7-2
decision written by Justice Stevens. The
Court noted that deportation is a “particularly severe penalty” that is “intimately related” to the criminal process.
Therefore, advice regarding deportation
is not removed from the ambit of the
Sixth Amendment right to effective
assistance of counsel. A defense lawyer
must inquire about a client’s immigration status and advise non-citizen clients of the immigration consequences
they might face. Importantly, the Court
held that the Sixth Amendment requires
affirmative, competent advice regarding
immigration consequences. A defense
lawyer’s silence regarding the immigration consequences of a guilty plea constitutes ineffective assistance of counsel
even if no erroneous advice is given.
The Court also endorsed “informed
consideration” of deportation consequences by both the defense and the
prosecution during plea-bargaining. It
specifically highlighted the benefits and
appropriateness of factoring immigration consequences into plea negotiations in order to craft a conviction and
sentence that reduce the likelihood of
deportation while promoting the interests of justice.
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Published by the Criminal Law Section of the Federal Bar Association
11
Wednesday September 22, 2010
8:00 a.m.–5:00 p.m. FBA Participates in Habitat for Humanity
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Registration Desk Open
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Legal History and Development of Civil Law
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Saturday, September 25, 2010
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8:30–9:45 a.m.
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9:30–11:30 a.m. Foundation of the FBA Board Meeting
8:30–11:00 a.m.
Section and Division Chairs Meeting
10:00–11:30 a.m.
Chapter Education Program
11:45 a.m.–1:45 p.m. FBA Awards Luncheon
2:00–5:00 p.m.
National Council Meeting
6:30–10:30 p.m. Reception and Presidential Installation Banquet
2010 Sponsors
Platinum
Calvin Fayard
Frank Dudenhefer
Gordon, Arata, Mccollam,Duplantis &
Eagan
Herman, Herman, Katz & Cotlar
Jones Walker Law Firm
Kean, Miller, Hawthorne, D’Armond,
McCowan & Jarman, LLP
Long Law Firm
Montgomery Barnett
Sher Garner Law Firm
Stone Pigman Law Firm
Gold
Barrasso Usdin
Gainsburg, Benjamin,David, Meunier &
Warshauer
Joe Bruno
Liskow & Lewis
Stanley Reuter Ross Thornton &
Alford
Silver
Baker, Donelson, Bearman, Caldwell &
Berkowitz
Frilot L.L.C.
Galloway Johnson
Jones, Swanson, Huddell & Garrison
Law Dragon
McCraine, Sistrunk, Anzelmo, Hardy,
Maxwell, & McDaniel
Murphy Oil Corp.
U.S.D.C Eastern District
Bronze
Chopin Wagar
Deutsch, Kerrigan & Stiles
FBA Lafayette/Acadiana Chapter
The Kullman Firm
Lemle & Kelleher
Milling Benson Woodward
New Orleans Saints
Plauche Maselli Landry & Parkerson
Pride International
Criminal Law Section Leadership
Chair
Michael R. Sklaire
Greenberg Traurig, LLP
1750 Tysons Boulevard
Suite 1200
McLean, Virginia 22102
703.749.1308
[email protected]
Vice-Chair
Christopher Schmeisser (“Kit”)
United States Attorney’s Office
157 Church Street, 23rd Fl.
New Haven, CT 06510
203.821.3700
[email protected]
Outreach/Membership
Coordinators
Michael D. Ricciuti
Kirpatrick Lockhart Preston Gates,
et al.
State St. Financial Center
One Lincoln Street
Boston, MA 02111-2950
Michael.ricciuti@
klgates.com
Michael S. Nachmanoff
Federal Public Defender
Eastern District of Virginia
1650 Kin Street, Suite 500
Alexandria, VA 22314
Treasurer
Kathy Massing
Fowler White Boggs P.A.
Tampa, FL
813.222.2077
Kathy.massing@
fowlerwhite.com
CLE Coordinator
Virginia Schlueter
Federal Public Defender-Eastern
District of Louisiana
New Orleans, LA
504.589.7930
[email protected]
Immediate Past Chair
Kevin McGrath
Seyfarth Shaw LLP
Boston, MA
[email protected]
Steven M. Goldsobel
Law Office of Steven M. Goldsobel
Los Angeles, CA
310.552.4848
[email protected]
Hon. D. Thomas Ferraro
U.S. Magistrate Judge, District of
Arizona
Evo A. DeConcini U.S. Courthouse
405 West Congress St., Suite 6660
Tucson, AZ 85701
Hartley West
U.S. Attorney’s Office
[email protected]
In Hot Pursuit of Federal Criminal Justice is published by the Criminal Law
Section of the Federal Bar Association, 1220 North Fillmore Street, Suite 444,
Arlington, VA 22201. © 2010 Federal Bar Association. All rights reserved. ISSN:
1949-0577. The views expressed herein are not necessarily those of the FBA.
Managing Editor: Sarah Perlman.
In Hot Pursuit
of Federal Criminal Justice
Federal Bar Association
Criminal Law Section
1220 N. Fillmore Street, Suite 444
Arlington, VA 22201
Board Members
Geoffrey T. Cheshire
Assistant Federal Public Defender
407 W Congress, Suite 501
Tucson, AZ 85701
520.879.7500
[email protected]