In United States v. Elliot, the Eleventh Circuit just reviewed the question of how to determine whether your client's deferred adjudication is a conviction.  Mr. Elliot had been charged with a robbery in Alabama, and had received a youthful offender adjudication.  Alabama law specifically provides that youthful offender adjudications do not count as criminal history.

All very interesting, says the Eleventh Circuit.  But the Elliot Court found that this youthful offender adjudication not only counts as criminal history, but serves as a career offender predicate underlying a life sentence.  Ouch.  The court reasoned that the definition of "conviction" is a federal law question.  No matter what the state law says, U.S.S.G. 4B1.2(c) provides that a prior conviction may be established by guilty plea, jury verdict, or nolo contendre plea. The Elliot Court then looked to a number of prior cases in which the defendant had entered a nolo contendre plea, and adjudication was withheld, but the resulting proceeding was deemed a conviction under federal law.  Applying that precedent, Elliot concluded that no matter what the state of Alabama thinks, a youthful offender adjudication counts as criminal history because it is analogous to a nolo plea.

While we do not endorse the reasoning in Elliot, the case serves as a stiff reminder to refrain from assumptions drawn from state law when analyzing the status of a prior proceeding under the guidelines.  Mr. Elliot is serving a life sentence because a youthful offender adjudication which is not criminal history under state law served as a career offender predicate offense in a federal prosecution.

Your result may be different, however, if the application of the Armed Career Criminal Act (18 U.S.C. 924(e)) is at issue.  To determine which priors constitute violent felonies under 924(e), what constitutes a conviction is determined in accordance with the law of the jurisdiction in which the proceedings were held. 18 U.S.C. § 921(a)(20).
The ACLU has filed this lawsuit over NSA surveillance information being used in criminal cases.  As reported here, the Supreme Court dismissed the ACLU's last effort to obtain information about the NSA's surveillance programs because the ACLU lacked evidence that it had been targeted by the surveillance programs.  (See Clapper v. Amnesty International USA)

The suit, filed in the Southern District of New York, alleges that since the Clapper decision, in which the Government's briefing assured that it would notify defendants if NSA surveillance information was relied upon during the prosecution, not one defendant nationally has been notified of NSA involvement in their cases.  I apologize for the length of the last sentence.  Point being, NSA information is still being employed, and defendants are not being told.  At all.  So the ACLU has filed a FOIA request.

Along the same lines, the Electronic Frontier Foundation has filed an amicus brief authored by recent Kansas federal defender CLE presenter, Oakland A's fan (forgive the apostrophe) and all around bad man Hanni Fakhoury challenging similar DEA intelligence gathering.  The potential scope of DEA data gathering outlined by Hanni's brief is breathtaking, and worth your time.  Also, thanks very much to Hanni for donating his time to our presentations in Wichita and Lawrence.  He was fantastic, and we profoundly appreciate his service.
Most versions of the standard plea agreement in Kansas have an appellate waiver, and most versions of that appellate waiver include a waiver of your rights under 18 U.S.C. 3582(c).  This is the statute that gives district courts jurisdiction to resentence a defendant when the Sentencing Commission enacts a retroactive change to the the guideline under which the defendant was sentenced.  The most recent example of litigation under 3582(c) is the application of Sentencing Guideline amendments 706 and 750, which led to the reduction of hundreds of crack sentences in Kansas.

Another change is on the horizon.  The Smarter Sentencing Act, (currently in committee) would rejigger mandatory minimum sentences downward, and direct the Sentencing Commission to alter the guidelines accordingly.  The Act would also retroactively apply the Fair Sentencing Act changes to the crack cocaine guidelines.  Both developments raise a strong possibility of retroactive guideline amendments.

If this Act becomes law, there will be some defendants who are very, very sorry that they waived their rights under 3582(c), because they will have no jurisdictional vehicle to achieve relief to which they would have otherwise been entitled.  Make sure when you negotiate your cases that you are getting market value for any decision to waive 3582(c) rights.  Preferable to that, negotiate such a waiver out of your agreement.

In United States v. Kupa, Judge Gleeson authors a primer on the use and abuse of 851 sentencing enhancements.  The opinion starts by noting:

"My focus here is narrow and my point is simple: as the defendant Lulzim Kupa’s 
case and countless others show, the government abuses its power to file prior felony 
informations in drug trafficking cases. The single most important factor that influences the 
government’s decision whether to file or threaten to file a prior felony information (or to 
withdraw or promise to withdraw one that has previously been filed) is illegitimate. When it 
enacted § 851 in 1970, Congress had in mind the world that DOJ asked it to create, in which 
federal prosecutors would carefully cull from the large number of defendants with prior drug 
felony convictions the hardened, professional drug traffickers who should face recidivism 
enhancements upon conviction. But instead federal prosecutors exercise their discretion by 
reference to a factor that passes in the night with culpability: whether the defendant pleads guilty."

After cataloging the abuse of 851 informations, and the "bonecrushing" sentences which have resulted, Judge Gleeson turns his attention to the 2013 changes Attorney General Holder has made to 851 policy.  Finding them sorely lacking, Judge Gleeson concludes that,

"Attorney General Holder’s admirable leadership toward sentencing reform
should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its
power to invoke recidivist enhancements in drug trafficking cases less destructively and less
brutally, it doesn’t deserve to have the power at all."

Did you know you can use your iPad for more than just checking emails, browsing the web and watching movies on Netflix?

Your iPad can be a powerful tool to help you manage your cases, review discovery with clients, obtain electronic signatures on documents, take notes, play videos/audio files, display exhibits at trial and create and show slideshows, just to name a few.

Below are a few applications that are highly recommended to purchase and download to put your iPad to work for you.

PDF Expert - $9.99 (download to the iPad from the app store)
Full PDF abilities including annotations, sort, e-mail, print, search, indexing, separate pages, playing videos, viewing Microsoft Word documents and much more

UPAD - $4.99 (download to the iPad from the app store)
Take hand written notes, save as PDF and e-mail. Allow client signatures on release forms.

Pages, Numbers and Keynote - $9.99 each (download to the iPad from the app store)
MS Office compatible apps for opening and editing Word, Excel and PowerPoint files.

iTools  - FREE (dowload and install on your PC or MAC)
Easily copy client files and folders between your computer and the iPad

Freemake Video Converter   - FREE (download and install on your PC) 
Convert multiple video format to standared MP4 for playback on iPad and other devices

Free Video Tools - FREE (download and install on your MAC)
Convert multiple video formats to standard MP4 for playback on iPad and other devices

Camtasia Studio - $299.00 (download and install on your PC or MAC)
Capture proprietary video and convert to MP4, create clips, zoom in, add closed captioning and more

Adobe Acrobat XI Pro- $449.00 (download and install on your PC or MAC)
creation, cropping, sorting, forms, annotations, text recognition, indexing, separate pages and more

Rachel Levinson-Waldman has authored a new report for the Brennan Center for Justice entitled What the Government Does With Americans' Data. Fun facts from the report:

  • NSA's PRISM data collection program may well be reading your emails.  While putatively targeted an non-citizens, the data of Americans can be collected if "incidental" or because the NSA presumes, in the absence of information as to a person's citizenship, that the person is a non-citizen.
  • The NSA has your phone call metadata. Since just after 9/11, the NSA has collected data from phone companies on who calls who, and for how long.
  • "Suspicious Activity Reports" can get you put into a federal terrorism database.  The second-most common type of SAR is taking pictures of a building. The standard for inclusion on this list is lower than reasonable suspicion.
  • The FBI has employed their sweeping surveillance power in investigations of Greenpeace, Catholic Worker, and PETA.
  • FBI employees have accessed its massive information databases to look up exotic dancers and celebrities they "thought were hot". 
  • The NSA is almost done building a massive spy center in Utah where about 100,000 square feet of space will be devoted to housing computer servers.  The better to watch you with.
This report is an impressively comprehensive assessment of the ways in which the Government monitors, uses, and retains your data.  Thanks to Ms. Levinson-Waldman for assembling it, and good luck to her in dealing with the elongated TSA screens which surely await her now.

For more information on protecting your own data, visit the website of the Electronic Frontier Foundation (more on this organization soon).  Among other tools available at their site, EFF has created a browser extension which helps encrypt your communications with major websites.  Download it here.
While the sentencing court is permitted to examine the whole picture when sentencing a particular defendant, it may not base it sentence on suspicion that the defendant has engaged in some shadowy, nefarious conduct without record support.  Yesterday, in United States v. Van, the Sixth Circuit reversed a sentence based on the district court's conjecture that there was “something more going on here than a mere misuse of a phony identification.”  The defendant was caught using a false social security number, which the district court suspected indicated that the defendant was engaged in a more wide-ranging criminal enterprise than was apparent from the record.  Because of the court's suspicions, Mr. Van received a 9 month sentence when the guideline range was 0-6 months.

The Sixth Circuit reversed, but began by rejecting the defendant's procedural reasonableness argument. Van had not objected to the court's decision to base its sentence on speculation about the his conduct, so the Sixth Circuit held it could not find plain error.  The Van Court did, however, find an abuse of discretion concerning the substantive reasonableness of the sentence.  The takeaway line from the opinion is "[e]ven if a district court relies on a large number of relevant factors, we must vacate and remand for resentencing if the court considers an impermissible factor in calculating a defendant’s sentence."  In Van, the district court's speculation that Mr. Van was up to no good was not based on the record, and was therefore an impermissible factor, rendering the resulting sentence an abuse of discretion.

A similar issue presents when a district court relies on the defendant's arrest record when imposing sentence. Arrests which do not result in convictions may not serve as the basis for an upward departure. U.S.S.G. § 4A1.3(a)(3). But be careful- if you do not object to the facts listed in the PSR concerning the prior arrest, those facts are fair game for the district court. United States v. Mateo, 471 F.3d 1162 (10th Cir. 2006). While a district court that reasons from the existence of prior arrests is considering an impermissible factor, the court can consider any facts to which you did not object in selecting a sentence above the guideline range.
Remember, next week is our annual CLE program, Thursday in Wichita and Friday in Lawrence. There are some changes this year:
  • We've opened it up to state practitioners,  as there are a number of cross-over topics.       
  • New venue in Wichita: the Wichita Bar Association, 225 N. Market, Ste 200.                                
  • New venue in Lawrence:  The Eldridge Extended, 8th and Vermont.                                           
  • All  materials will be distributed in advance electronically. If you need a paper copy, print it before you come, as none will be available on-site.  
  • Lunch is on-your-own, but . . .                                                                                                       
  • . . . . social hour  begins at 4:00 pm at a yet-to-be-designated spot (taking suggestions for both venues).
It's not too late to register, just email and she'll get you set up. Registration begins at 8:00 am and the program at 8:45 am. Six hours of CLE credit, and there is no fee.

The full schedule is here:

Fifty Shades of Brady - Paige A. Nichols

When the Govt Comes Knocking, Who has your Back?-Hanni M.
Fakhoury, Electronic Frontier Foundation

When a Kansas Felony is not a Federal Felony &
Supreme Court Update on Sentencing - Melody Evans


Defending SORNA Prosecution - Carl Folsom

Crossover State and Federal Issues - Kirk Redmond/Jenn Roth

Recent Developments in Prosecution Policy, Locally & Nationally
Panel - Tom Bartee, Melody Evans and David Freund
See you there.

In the halcyon days before the PROTECT Act, federal supervised release didn't have such an eternal feel.  Say you were convicted of a class C felony, like being a felon in possession of a firearm.  The statutory maximum for your violations of supervised release is two years. When that mean old P.O. sent you back to prison for fourteen months (due to what I am sure were trifling violations of your release conditions) and you re-emerged into society on a new term of supervised release, your exposure to more prison time was limited.  With a statutory maximum of two years, the term you had served (14 months) meant that you only faced an additional 10 months in custody for future violations of supervised release, no matter how scurrilous and reprehensible your behavior.

Those days are gone. They have been gone since the passage of the PROTECT Act in 2003, but almost no one in Kansas noticed until now, as practice under the old statute continued.  But the Tenth Circuit has recently spoken on this issue, aligning itself with all other circuits to preclude aggregation of prior sentences.  Here is what the PROTECT Act did: it added language to 18 U.S.C. 3583(e)(3) that a defendant could not be sentenced to imprisonment beyond the statutory maximum "on any such revocation".  (The statutory maximums are 5 years for a Class A felony, 3 years for a Class B, 2 years for a Class C or D, and one year for any other crime.)

"Any such revocation", says the Tenth Circuit, means any time a person gets revoked, their sentence is bounded only by the statutory maximum.  United States v. Hunt, 673 F.2d 1289 (10th Cir. 2012). Poor Mr. Hunt was revoked and sentenced to twelve months and a day, followed by more supervised release.  Upon release, he continued to sample cocaine, and was revoked again and sentenced to twelve months and a day again.  Under the old regime, upon release Mr. Hunt would have been free to abuse substances to his heart's content, because his two sentences would have been aggregated and would have reached the statutory maximum.  But in this cruel new world, Mr. Hunt's continued misbehavior earned him an additional sentence of eighteen months.

"Wait", you protest, "our Mr. Hunt is now serving more time than the statutory maximum!  Forty-two months in all!  And the statutory maximum is thirty-six months!"  Had you been listening, of course, you would recognize that there is no aggregation principle at all anymore- "any such revocation" means just that.  The district court is limited only by 18 U.S.C. 3583(h), which dictates that the, "length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release."  So, once a defendant has served thirty-six months or more on a class C felony, supervised release, and the opportunity to violate the conditions of supervised release, may no longer be imposed.

While this eventual limit on additional terms of supervised release has presumably relieved Mr. Hunt of his cyclical imprisonments, 3583(h) provides little comfort for other defendants.  Many narcotics conspirators, sex offenders, and terrorism defendants face a potential lifetime of supervised release.  For these defendants, there is no statutory maximum, and each can be returned to prison for five years at a time, re-emerging on supervised release forever.  
Years ago, we ran another blog concerning issues affecting the defense of federal criminal cases.  That blog slowly withered, so we are starting over here.  We aim to present an active discussion of issues including the sentencing guidelines, substantive criminal law, evidence, the Bureau of Prisons, and developing intersections between technology and the law, with perhaps a dash of neuroscience thrown in.  Your contributors will include Melody Evans, the new Federal Public defender for Kansas, the erudite if wordy Tom Bartee, Kirk Redmond, Tim Henry, Sandy Schnack, and all the guest bloggers we can rope into contributing.

On this page, you can subscribe to receive email updates for new posts.  You can also click through to a number of excellent and active blogs listed under our blog roll.  Contact us with questions, ideas, or comments.