What will you do with your freedom this summer?

Join Third Chair and help others realize theirs.

Over the last two years, law student interns at the Kansas Federal Public Defender Office helped our office knock 200 years off of 59 people’s prison sentences through motions for compassionate release—a newly available legal procedure that became a life-or-death lottery for clients during the pandemic. Interns interviewed clients in the Bureau of Prisons, gathered records, recommended action, drafted motions, and saw results.

What you will do in our office depends on the needs of our clients, many of whom come from impoverished and over-policed minority communities. You might track and call out police misconduct. You might help a young father reenter life outside prison. You might research ways to diversify the federal jury pool. Or you might contribute to a Supreme Court petition. Whatever the work, it will involve real cases with real consequences for real clients and beyond. And you will leave our office with a strong, closely-edited writing sample reflecting that work.

What’s more, you’ll get a crash course on federal criminal law and procedure; shadow trial attorneys; tour prisons; and meet personally with former clients, judges, experts, and probation officers. Every day you will render public service in an office that puts our clients first through holistic representation, collaboration, and education.

Third Chair is a 9-week, 40-hours-per-week unpaid (some funding may be available) internship in our Kansas City, Kansas office starting May 31, 2022 (with days off to observe Juneteenth and the Fourth of July). We aim to empower students from diverse backgrounds to explore public service as a possible career. Apply by February 15, 2022 at https://ks.fd.org/content/third-chair. Positions will be filled on a rolling admission basis. Questions? Contact Shajiah Jaffri at 913-825-6924 or shajiah_jaffri@fd.org.

The FPD is hiring a legal assistant or paralegal to work in our Topeka or Wichita office. If you want to be a part of public defense, or know someone who is qualified and interested, please let us know. Applications will be reviewed on a rolling basis, with preference given to those received by December 10, 2021. Click here for more info.

The Federal Public Defender for the District of Kansas is an equal opportunity employer. No personnel actions or practices (including hiring, termination, promotion, demotion, advancement, or terms and conditions of employment) are based on an individual's race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, age, height, weight, veteran status, military obligations, or marital or parental status.

Congratulation to Kansas AFPDs Mitch Biebighauser and Carl Folsom, both recipients of Kansas Bar Association awards on October 21, 2021:

Mitch AwardAward Carl

We all know what wonderful advocates they are, but we are extra delighted that the statewide bar association recognized their hard work and professionalism. Well done!

Recently at the Tenth Circuit:

Excited utterances

In United States v. Vigil, the Tenth Circuit held that a six-year-old child's statements to her mother a short period of time after the child claimed that Mr. Vigil sexually assaulted her were admissible at Mr. Vigil's trial over his hearsay objection as excited utterances.

Immigration crimes

It is a crime for an "alien" to "enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers." 8 U.S.C. § 1325(a). But what if the person entering is, at the time of the border crossing, under official restraint? Is "enter" a term of art such that it can only be accomplished when one is free from official restraint?

That was the question posed in United States v. Perez-Velasquez. But it is a question that remains (mostly) undecided.

The appellants in Perez-Velasquez were convicted under § 1325(a) after walking around a fence to bypass a port of entry. They were both detained almost immediately. They argued that their crossing did not count as a § 1325(a) "entry" because they were under official restraint at the time. That restraint, they argued, took the form of constant surveillance. Put another way: If they were under surveillance when they snuck in, they didn't really sneak in, did they?

The Tenth Circuit rejected the appellants' argument, holding that "surveillance on its own cannot transform into restraint." Having so held, the Court avoided the larger question whether freedom from official restraint is required for an "entry" under § 1325(a).

Sentencing

"[A]n orally pronounced sentence controls over a judgment and commitment order when the two conflict." But if the oral and written pronouncements merely create an ambiguity, then the latter may stand as a clarification of the former. So said the Tenth Circuit in United States v. Bruley.

Circuit split alert!

A person convicted of a federal crime may face a much higher advisory guideline sentence if the person has one or more prior convictions of a "controlled substance offense." See, e.g., USSG § 4B1.1 (career-offender guideline); USSG § 2K2.1 (firearms guideline).

The guidelines define "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." USSG § 4B1.2(b).

But the guidelines don't define "controlled substance." Where do we look for this definition? To the federal Controlled Substances Act? Or to the law in the jurisdiction of the prior conviction?

vampire dustThe answer to this question makes an enormous difference. Suppose you have a prior state conviction under a state statute that prohibits distributing a variety of substances, including vampire dust. Vampire dust is not a federal controlled substance. If "controlled substance" is cabined by federal law, your prior state conviction is not a "controlled substance offense" for guideline purposes because the state law is broader than the federal law. Cf. United States v. Cantu, 964 F.3d 924 (10th Cir. 2020) (state conviction not "serious drug offense" for ACCA purposes where state law broader than federal law). If "controlled substance" is defined by the jurisdiction of the prior conviction, then your prior conviction is a "controlled substance offense," and you might be looking at an advisory guideline range that is anywhere from 2X to 10X higher than the range that would otherwise apply.

Last week, the Tenth Circuit concluded in United States v. Jones that "controlled substance" as used in USSG § 4B1.2(b) means whatever the jurisdiction of the prior conviction says it means. With Jones, the Tenth Circuit deepens a circuit split on this issue. Read Jones and the cases on the other side of the split (they're cited in Jones) and preserve this issue in appropriate cases. This question seems destined for Supreme Court consideration in the near future. Perhaps in your client's case.

Questions? Contact your friendly local federal public defender office.

It's been three years since the Supreme Court held in Carpenter v. United States that the government's acquisition of historic cell site location records from third-party wireless carriers was a search for Fourth Amendment purposes requiring a warrant.

How has Carpenter fared in those three years? Has it ushered in a new era of Fourth Amendment jurisprudence, as some commentators predicted? It's a bit too early to tell, but Professor Matthew Tokson gives us an encouraging preview in his article The Aftermath of Carpenter: An Empirical Study (Forthcoming, 135 Harvard Law Review __ (2022)). Professor Tokson analyzes hundreds of state and federal decisions applying Carpenter to discuss a number of questions raised by the case, including:

  • What kinds of technology does Carpenter reach?
  • What factors have courts found persuasive when conducting a Carpenter analysis? 
  • What role does the good-faith exception play in Carpenter-like cases (and how might we limit that role)?
  • How can we more effectively argue that the Fourth Amendment applies to new technological practices?

Ultimately, Professor Tokson predicts that "[i]t is likely that Carpenter will remain a valid precedent and that its reasoning will be used to expand the scope of the Fourth Amendment to a variety of new technologies and surveillance practices."

Only one published criminal-law case from the Tenth Circuit last week:

Compassionate release

Exhaustion of administrative rights, while statutorily required, is not a jurisdictional prerequisite to filing a motion for compassionate release in the district court. So said the Tenth Circuit in United States v. Hemmelgarn. But this doesn't mean exhaustion isn't important. It's still a mandatory claim-processing rule that the government may invoke as a defense to the motion. Counsel should thus submit proof of exhaustion with the district court motion. In Hemmelgarn the government waived exhaustion on appeal, so the absence of proof did not prevent consideration of the motion on its merits. Unfortunately for Mr. Hemmelgarn, the Tenth Circuit also affirmed the district court's denial of his COVID-19-based motion on the merits.

Last week at the Tenth Circuit:

Fourth Amendment

In United States v. Kendall, the Tenth Circuit held that law enforcement's (1) impoundment and (2) inventory search of Mr. Kendall's car after a traffic stop were both reasonable. The inventory search included an area underneath the center console as well as an interior panel beneath the glove box. The first of these was a reasonable extension of the inventory search; the second was not, but it was nonetheless a reasonable exercise of law enforcement's community-caretaking function (by that time, officers had reason to believe there was a gun hidden in the car). No new law here, but a detailed analysis of the facts under existing law, so be sure to read Kendall if you've got an impoundment or inventory question in your case.

United States v. Chavez involved a traffic stop for a turn-signal-duration violation. In Chavez, the Tenth Circuit held that, even if Mr. Chavez signaled before changing lanes for the full two seconds required by the Utah traffic code, the trooper who stopped him had reasonable suspicion that he didn't, based on the trooper's "rule of thumb" that "generally two signal cycles are less than two seconds."

Did the trooper thereafter unduly prolong this stop for a turn-signal-duration violation in order to wait on a drug dog? Here is the timeline, according to the decision:

T-1 The trooper initiates a traffic stop for a turn-signal-duration violation.

T-2 Mr. Chavez passes an exit ramp (this appeared odd to the trooper) and then pulls over.

T-3 Mr. Chavez is ready with his DL when the trooper approaches his car (this, too appears odd to the trooper).

T-3 The car is a rental and Mr. Chavez has trouble finding the agreement . . . but then he finds it! (And the trooper's suspicion grows.)

T-4 Mr. Chavez declines to come back to the trooper's patrol car and asks the trooper to just write him a citation so he can be on his way (this seems abnormal to the trooper).

T-5 The trooper learns that Mr. Chavez is overdue to return the rental and that he wasn't supposed to have the car out of state.

T-6 Eight minutes into the stop, the trooper finishes writing the turn-signal-duration citation and asks dispatch for a drug dog. Dispatch says there isn't a dog available.

T-7 No drug dog, eh? NOW the trooper asks dispatch for a background check and criminal-history report. And whaddaya know, while the trooper is waiting on the criminal history, the drug dog arrives.

The delay after the trooper finished the citation was reasonable, according to the majority in United States v. Chavez. And that's because traffic stops "present significant danger to law enforcement." It was reasonable for the trooper to extend Mr. Chavez's stop before giving him his turn-signal-duration citation so that the trooper could "better understand" whether Mr. Chavez "might engage in violent activity during the stop."

Senior Judge Lucero dissented. He would have found the delay impermissible under Rodriguez.

"Controlled substance offenses" under USSG 2K2.1(a) and 4B1.2(b)

Do "controlled substance offenses" under these guideline provisions include convictions for state drug crimes that cover substances not controlled under federal law? The Tenth Circuit isn't telling. At least not in United States v. Jones, because either way, any error was harmless in Jones. Keep preserving this issue and object if the district court considers a prior state drug conviction a controlled substance offense for guideline calculation purposes, if state law at the time of the prior offense covered more than federally controlled substances.

Indeterminate confinement and due process

Think you know the difference between a criminal sentence and a civil commitment, and the due-process implications of those labels? The answers may not be as obvious as you think. If you want to know more, take a look at Wimberly v. Williams, in which the majority and the dissent spar over whether a person convicted of a Colorado sex offense and confined for an indeterminate one-day-to-life term has a right, after nearly four decades, to a hearing to determine the appropriateness of his continued confinement.

If your clients have been detained at CoreCivic-Leavenworth in the past five years, you probably know something about this for-profit pretrial federal detention company. You might know that the company secretly recorded attorney-client communications and shared those recordings with law enforcement. Or you may have heard about the company's dismal pandemic response. Perhaps your clients have expressed concern about the escalating violence within the facility this year. Or perhaps you haven't heard from your clients at all recently, given CoreCivic-Leavenworth's extreme and ongoing lockdown after a person in custody there was killed last month.

As one district court judge recently described it, "what's going on at CoreCivic right now is it's an absolute hell hole." People in custody there face a dangerous combination of violence and neglect. The US Marshal's contract with the company was originally scheduled to end this December and not be renewed, per Executive Order. But the company is angling to keep its Leavenworth facility running. And regardless of what happens in December, we have clients suffering in CoreCivic-Leavenworth right now. With that in mind, we suggest the following:

First, cite the horrendous conditions of pretrial confinement at CoreCivic-Leavenworth as a basis for your client's pretrial release.

Second, if the court will not release your client, request confinement someplace other than CoreCivic-Leavenworth.

Third, if your client has suffered through pretrial detention at CoreCivic-Leavenworth, cite that experience as a basis for a downward variance at sentencing.

Finally, support the campaign to close CoreCivic-Leavenworth.

The ACLU, Federal Public Defenders, and CJA Panel counsel have joined forces to urge the White House to prevent any further contract with CoreCivic-Leavenworth. We are grateful for the ACLU's collaboration and support, including this opinion piece from Sharon Brett, Litigation Director for ACLU Kansas. Additional media coverage can be found here and here. If you need more information, please contact us.

In Taylor v. City of Saginaw 922 F.3d 328 (6th Cir. 2019) (Taylor I), the Sixth Circuit held that chalking tires to enforce parking laws is a search for Fourth Amendment purposes. This holding was a "logical extension of the [Supreme] Court's holding in Jones that a physical trespass to a constitutionally protected area with the intent to obtain information is a search under the Fourth Amendment." Taylor v. City of Saginaw, ___ F.4th ___, 2021 WL 3745345 (6th Cir. 2021) (Taylor II).

Taylor I also held that chalking without a warrant could not be justified by either the automobile exception or the community-caretaking exception.

Last week, in Taylor II, the Sixth Circuit found no reason to depart from Taylor I, and held further that suspicionless chalking cannot be justified as an administrative search.

But alas, in the end, the plaintiff in this 1983 lawsuit loses her case on qualified immunity grounds because, at the time of the chalking she challenged, "every reasonable parking officer would not understand from Jones that suspicionless chalking of car tires violates the Fourth Amendment."