Amendments to Federal Rule of Criminal Procedure Rule 16 take effect this Thursday, December 1, 2022. These broad changes bring the rule “closer to civil practice” by expanding the scope of the required notice and imposing an enforceable deadline for disclosure. Here are some of the significant changes:

  • The government must disclose in writing any expert testimony that it intends to use at trial in its case-in-chief or in rebuttal to counter timely disclosed defense evidence. The rule also now requires a “complete statement” of the witness’s opinions rather than just a summary.
  • Predicated on certain mutual notice and requests, the government must disclose in writing evidence that it intends to use at trial on the “issue of the defendant’s mental condition.”
  • The content of the disclosure requires a “complete statement of all opinions” the government will elicit in its case-in-chief or in rebuttal; the bases and reasons; and the witness's qualifications, including
    • A list of all publications authored in the previous 10 years;
    • A list of all other cases in which the witness testified as an expert at trial or deposition for the last 4 years.
  • The witness must approve and sign the disclosure, with limited exceptions.  

Redlined version is available here at pp. 172-185.

In Kansas, the triggering requests listed in the amended rule are automatic in D. Kan. Pretrial and Criminal Case Management Order at 5, but may vary among the judges. (The defense can still opt out of reciprocal discovery if it chooses to do so.) Similarly, the new rule does not set a certain disclosure deadline, but requires that the court or a local rule “must set a time” for disclosure. (Also covered, for now, in our D. Kan. standard pretrial order, 9 (within 30 days after arraignment) & 10.)

The government must satisfy these new notice requirements for any FRE 702 expert, including law-enforcement officers who testify as experts. The rule is not limited to “forensic experts.” The Tenth Circuit recognizes that law-enforcement officers may testify as experts under F.R.E. 702 and 704, and that this triggers the notice requirements under Rule 16. See, e.g., United States v. Medina-Copete, 757 F.3d 1092, 1098, 1101, 1109 (10th Cir. 2014). That should stand under the amendments.

Rule 16(b)(1)(C) imposes reciprocal obligations for defense expert testimony that will be used in the defendant’s case-in-chief. We have the same obligations to disclose prior testimony and publications, as well as to have our expert approve and sign the notice. This may raise some interesting issues. For example, if we are using a government witness as our own expert (say, a police officer or DEA lab chemist), this may mean we need additional discovery from the government in order to comply with our obligations to the government.

Judge Carl FolsomIt is with both pride and sorrow that we at the Kansas Federal Public Defender Office bid adieu to our colleague Carl Folsom as he leaves us to take the bench in Douglas County, Kansas.

Carl is a doting father, a keeper of bees, a food-justice leader, a planter of trees, and one of the best damned public defenders we have ever known. He is curious, creative, caring, and smart. He loves the state and federal constitutions and has faith in the rule of law. Our clients were ever grateful to have him in their corner, and the public could not be better served than with the Honorable Carl Folsom on the bench.

Congratulations, Carl!

We thought it was about time to catch up with Bruen's impact on Section 922 challenges and other Section 922 news.

So far, district courts have applied Bruen's historical approach to invalidate, on Second Amendment grounds,

  • 18 U.S.C. § 922(g)(8), making it unlawful to possess a firearm or ammunition while subject to a DV restraining order. United States v. Perez-Gallan, No.22-cr-00427, 2022 WL 16858516 (S.D. Texas Nov. 10, 2022).
  • 18 U.S.C. § 922(k), making it unlawful to possess a firearm with an altered, removed, or obliterated serial number. United States v. Price, No. 22-cr-00097, 2022 WL 6968457 (S.D.W.V. Oct. 12, 2022).
  • 18 U.S.C. § 922(n), making it unlawful to possess a firearm or ammunition while under indicment. United States v. Gomez-Quiroz, No. 22-cr-00104, 2022 WL 4352482 (W.D. Tex. June 22, 2022); United States v. Stambaugh, No. 22-cr-00218 (W.D. Okla. Nov. 14, 2022).

And last June, the District Court for the District of Utah invalidated 18 U.S.C. § 922(g)(3) on facial vagueness grounds. United States v. Morales-Lopez, No. 20-cr-00027, 2022 WL 2355920 (D. Utah. June 30, 2022). That's the provision prohibiting possession of a firearm or ammunition by a person "who is an unlawful user of or addicted to any controlled substance." The government has appealed this order to the Tenth Circuit in Appeal No. 22-4074. We anticipate that briefing may be complete in time for this case to get a March (May at the latest) oral-argument setting.

Meanwhile, challenges to Congress's commerce-clause authority to enact 18 U.S.C. § 922(g) continue. None have succeeded yet, but seven out of sixteen Fifth Circuit judges think the issue is worth a closer look. See United States v. Seekins, No. 21-10556, 2022 WL 16900848 (5th Cir. Nov. 11, 2022) (denial of panel rehearing and rehearing en banc; seven judges in favor, nine against; written dissent by Judge Ho joined by Judges Smith and Engelhardt).

Keep up the good gun fight, and let us know about your wins.

Did you know that the Kansas FPD maintains a list of issues currently pending in federal criminal cases in the 10th Circuit? We review all the briefs filed in counseled criminal cases  and summarize the issues. We hope this resource helps all of us stay up-to-date on what's currently being raised before the Court, to improve preservation of issues and formulation of arguments. Cases are removed from the list as they are decided. Our goal is to update this document weekly. The most recent document can always be found on our website. You can view Issues Pending for October 7, 2022.   

Object to both the facts and the legal conclusions set forth in the presentence report. Remember that "[a]t sentencing, the court . . . may accept any undisputed portion of the presentence report as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A). If a defendant properly disputes a fact in the PSR, the government must prove that fact at sentencing.

Be timely. Objections must be provided, in writing, to the probation officer within 14 days after receiving the presentence report. Fed. R. Crim. P. 32(f).

Be specific in your objections, and include alternate objections.

  • Not specific enough: In United States v. McDonald, 43 F.4th 1090 (10th Cir. Aug. 9, 2022), counsel objected that the source of facts contained in the PSR was not credible or reliable, but did not object that the facts were untrue. On appeal, the Tenth Circuit held that this was "insufficient to raise a proper objection and trigger the district court's Rule 32 fact finding obligation." Counsel must make "specific allegations of factual inaccuracy" and say why the facts are untrue. "In other words, the defendant must assert that the facts alleged in the PSR are false." The Tenth Circuit aligned itself with the Fourth Circuit in requiring an assertion of falsity. Other circuits hold that an assertion of unreliability is enough. Try to satisfy McDonald, but if you only have grounds to assert unreliability (as opposed to affirmative falsity), make that objection as detailed as possible. Invoke Rule 32 (set up that circuit split for cert), but consider also invoking your client's constitutional right to be sentenced on accurate evidence. See United States v. Tucker, 404 U.S. 443 (1972). The district court can only determine accuracy by testing reliability, so make sure the court understands why the PSR facts are unreliable.
  • Specific enough: The Tenth Circuit reversed a drug sentence and remanded for a new drug-quantity calculation and resentencing in United States v. Williams, ___ F.4th ___, 2022 WL 4102823 (10th Cir. Sept. 8, 2022). Counsel preserved the drug-quantity issue there by making specific objections to the presentence report, disputing both whether packages delivered to Mr. Williams's home contained methamphetamine and, if they did, whether the PSR incorrectly determined the weights of the drugs in those packages by failing to account for packaging material. Counsel also objected to the PSR's ACCA determination, another issue decided in Mr. Williams's favor on appeal.

Check the PSR addendum to see how the PSR writer recorded any unresolved objections per Rule 32(g). Does it accurately and completely state your objections? Or is it a poorly summarized account that you need to clean up with a request for an amended PSR or in a sentencing memorandum? Be cautious about relying on the addendum alone to preserve your objection.

Follow your court's rules and conventions when filing a sentencing memorandum to restate or expand on your PSR objections. Does your court have deadlines for sentencing memoranda? Page limits? Rules requiring separate filings for PSR objections and motions for variance/departure? Other preferences that only regular practioners know about? Find out and follow those preferences.

Object again. You are a dog with a bone. Good dog! Don't let go of that bone! GrowGrowling dogl if they try to take it away from you. Pick it up again if you accidentally drop it. It's yours. Don't give it up. Ever. See United States v. Godinez-Perez, 737 Fed. Appx. 894, 900 (10th Cir. 2018) (defendant abandoned argument made in sentencing memorandum by responding in the negative to district court's query whether there were any other arguments).

Tragic laws do not prevent tragic events. But Congress can't stop itself from trying, especially when it comes to passing new gun laws in the wake of mass shootings.

Effective October 1, 2022, persons with prior municipal convictions for misdemeanor domestic-violence crimes will be prohibited by federal law from possessing firearms or ammunition under 18 U.S.C. §§ 921(a)(32)(A)(i) (defining misdemeanor crime of domestic violence) and 922(g)(9) (prohibiting persons with such convictions from shipping, transporting, possessing, or receiving firearms and ammunition). In other words, Congress has abrogated United States v. Pauler, 857 F.3d 1073 (10th Cir. 2017).

Effective now (as of June 25, 2022), more gun-related activies are federal crimes, and penalties for gun crimes have been increased as follows:

  • Violations of 18 U.S.C. §§ 922(d) and (g) are now punishable by 15 years of imprisonment, up from 10. See new 18 U.S.C. § 924(a)(8), §12004(d) of the Bipartisan Safer Communities Act.
  • Section 12002 expanded existing offenses and created new offenses. For example, “persons engaged” in the business of “importing, manufacturing, or dealing” in firearms. 18 U.S.C. § 921(a)(21)(C) now includes: "a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business to predominantly earn a profit through the repetitive purchase and resale of firearms. . ." Previously, “engaged in the business” had a narrower definition: "a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms. . ."
  • Section 12004(e) expanded the scope of 18 U.S.C. § 924(h), and added receipt of a firearm or ammunition to the prohibition against transferring a firearm or ammunition or attempts or conspiracies to receive or transfer a firearm or ammunition to any person, knowing or having reasonable cause to know to know the firearm or ammunition will be used to commit certain criminal offenses.
  • Section 12004(f) significantly revised and expanded 18 U.S.C. § 924(k), which proscribes certain firearms importation and smuggling offenses.
  • Section 12004(a)(1) created two new offenses. 18 U.S.C. § 932(b) prohibits the straw purchases of firearms and is punishable by a maximum of 15 or 25 years. 18 U.S.C. § 933 prohibits the trafficking in firearms and is punishable by a maximum of 15 years.
  • Sections 12001 and 12004(d) revised and expanded 18 U.S.C. § 922(d), which prohibits the sale or disposition of a firearm or ammunition to certain prohibited persons. First, § 12001 Section 12001 expanded the universe of persons to whom it is illegal to sell or transfer a firearm to include persons whose disabling event occurred when they were a juvenile: "(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person including as a juvenile. . . ." Second, § 922(d)(4) now prohibits transfer of a firearm to a person “who has been adjudicated as a mental defective or has been committed to any mental institution at 16 years of age or older.” Third, two additional classes of prohibited persons were added to § 922(d). Subsection (d)(10) now prohibits transfer of a firearm arm or ammunition to any person who “intends to sell or otherwise dispose of the firearm or ammunition in furtherance of a felony, a Federal crime of terrorism, or a drug trafficking offense (as such terms are defined in section 932(a)). Subsection (d)(11) now prohibits transfer of a firearm or ammunition to any person who “intends to sell or otherwise dispose of the firearm or ammunition to a person described in any of paragraphs (1) through (10)” of 922(d).
  • Section 12005 expanded the scope of relationships included in a misdemeanor crime of domestic violence for purposes of § 922(g)(9) to include persons with a “current or recent former dating relationship with the victim.” A newly added section, 921(a)(37)(A), defines a “dating relationship” as “a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.” The remainder subsections of 921(a)(37) provide further guidance on what constitutes a dating relationship” See 18 U.S.C. § 921(a)(37)(B) & (C).

But hey, don't worry, Congress included a very tiny escape hatch for those misdemeanor-crime-of-domestic-violence priors. Section 12005 includes limited restoration of firearms rights provisions, but only for first time MCDV offenders who were in a dating relationship with the victim and who can otherwise lawfully possess firearms. First, firearms rights can be restored if the person had their MCDV conviction expunged, provided expungement does not expressly provide the person cannot ship, transport, possess or receive firearms. Second, firearms right are restored 5 years after the later of “the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any,” if the person has not subsequently been convicted of another MCDV, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon (this need not be an MVDV), or any other offense that would disqualify the person under § 922(g). See new § 921(a)(33)(C). 

These restoration provisions are limited to persons with a single conviction for an MCDV against an individual in a dating relationship. They do not apply to a conviction where the person was “a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.” 18 U.S.C. § 921(a)(33)(C).

A big thanks to AFPD David Freund for these summaries.

We've all heard some version of this detective's testimony before:Smelly Car

Q. What happened after the window went down?

A. I could smell an odor of burning marijuana coming from within. It immediately hits you once that window's down.

* * *

Q. You indicated you immediately smelled the marijuana. Would you indicate whether it was a weak, strong odor, somewhere in the middle?

A. It was---it wasn't low. It was a pretty heavy smell from---like I said, once you roll that window down, it kind of just hits you in the face.

But how often do we get a credibility ruling like this one?

[A]fter having observed Detective McGee's demeanor and manner while testifying, and thoroughly considering the totality of his testimony, the Court is unable to credit his testimony concerning the odor of marijuana coming from Defendant's vehicle.

That was the W.D. Pa. District Court, in an order concluding that Detective McGee unlawfully seized Mr. Martin when he ordered him out of his parked car without reasonable suspicion. United States v. Martin, No. 20-CR-00376, 2022 WL 3028580 (W.D. Pa. Aug. 2, 2022). The district court cited the detective's inability to recall other details about the encounter and the lack of any evidence (besides the alleged odor) of recently smoked marijuana:

  • The detective testified numerous times throughout the hearing that he couldn't recall certain matters, and his "inability to accurately recollect the matters at hand detracts from his credibility to some degree"
  • The detective saw no smoke coming from the window
  • The detective did not observe the defendant discard any butts out the window
  • The detective found a package of blunt wrappers in the car, but could not remember whether the package was open
  • No marijuana was found in the car

The district court also string-cited other cases in which an officer's testimony about smelling marijuana was not credited. Add this one to the list. And keep challenging those incredible marijuana-sniffing officers.

In United States v. Adams, No. 21-3043 (10th Cir. July 20, 2022), the Tenth Circuit ruled recently that the Kansas offense of aggravated battery is not a “crime of violence,” as the term is defined by USSG § 4B1.1(a)(1). The court agreed with the FPD argument that Kansas aggravated battery is categorically broader than the guidelines definition of crime of violence in USSG § 4B1.2(a)(1) because the Kansas offense could be committed against a fetus (under KSA 21-5419(c)).

After Adams, no Kansas aggravated battery conviction will be a crime of violence under USSG § 4B1.2(a)(1). The Adams opinion noted that this same categorical argument may even apply to Kansas homicide offenses.

The court explained that the guidelines define a crime of violence as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a)(1) (emphasis added). The court held: “[u]nder this guideline definition, we conclude that the term person refers only to individuals born alive; fetuses aren't included. So some aggravated batteries in Kansas would fall outside the federal sentencing guidelines’ definition of a crime of violence.” The court rested its holding on the definition of “person” from the Dictionary Act, which defines “person” to “include . . . every infant member of the species homo sapiens who is born alive.” 1 U.S.C. § 8(a).

Thus, because some Kansas aggravated batteries can be committed against a fetus, this offense falls outside the guidelines’ definition of a crime of violence in USSG § 4B1.2(a)(1). And no Kansas aggravated battery conviction can meet the guidelines definition of crime of violence.

This opinion has already had a major impact on sentences under USSG § 2K2.1. And it should serve as a reminder to engage in this categorical analysis of statutes to determine whether the statutory elements are broader than the guidelines definition of a particular enhancement (whether it be crime of violence, controlled substance offense, or the like). 

It's an all-too-familiar conundrum. Our client is charged with serious offenses. The prosecutor offers a deal. It's not great, and it would obligate our client to waive not only trial rights but also appeal and postconviction rights. But if our client doesn't take the deal the prosecutor may pile on additional charges. And if we go to trial and lose, our client is going to face much higher penalties, which may include one or more statutory mandatory minimum prison sentences.

What's a client to do? Cave to the pressure to plead guilty? Or go to trial and risk an exorbitant trial penalty?

It's a calculus unduly weighted against going to trial. But the newly introduced, bipartisan Right to Trial Act could change that calculus. The Act, introduced by U.S. Rep. Victoria Spartz (IN) and several others, would require sentencing judges to consider (1) the need to protect the constitutional right to trial; (2) plea agreements offered to codefendants and other similarly situated defendants; and (3) whether imposing a statutory mandatory minimum sentence would constitute a trial penalty (these would all become 3553(a) sentencing factors). And the Act would authorize sentencing judges to impose sentences below the statutory mandatory minimum in order to protect the constitutional right to trial.

Until that bill or some other measures become law, our clients are likely to be stuck with their statutory mandatory minimums when they lose at trial. But the considerations underlying the Right to Trial Act may still be invoked in support of a variance from the sentencing guidelines for a client whose trial penalty is guildelines-driven.

The Honorable District Court Judge William Kuntz put it well in a recent sentencing order:

Our Constitution and laws set forth the fair range of punishments upon proof of guilt beyond a reasonable doubt, whether guilt is established by way of a guilty plea in the early dawn of a case or by way of a guilty jury verdict at the end of a case. While this Court is aware some believe "the first one to the table gets lunch, the last one to the table is lunch," our Constitution and laws wisely refute that concept: to impose the so called "trial penalty" is to invite the cannibalization of our right to trial. This Court declines to dine at that table. Guilty pleas and prosecutorial efficiency play important roles as servants in the administration of justice; but guilty pleas and prosecutorial efficiency must never be allowed to assume the dominant role of masters in the administration of justice.

United States v. Kasimov, No. 15-cr-95, 2022 WL 1984059, at *7 (E.D.N.Y. June 6, 2022).

The Federal Public Defender for the District of Kansas has two open positions!

At the Kansas FPD, we work to keep people out of prison through holistic representation, collaboration, and education. Our clients are people accused of federal crimes who cannot afford private lawyers. We protect our clients' rights and center their humanity at every stage of the criminal case and beyond. We value hard work, teamwork, creativity, flexibility, and fairness.

We are looking for a full-time Assistant Federal Public Defender for our Topeka office. AFPDs carry full district court caseloads. We are also searching for a full-time Mitigation Specialist (social worker) for either our Wichita office, our Topeka office, or our Kansas City office. Mitigation Specialists work closely with clients to help them share their life experiences and connect them with needed services. This work is crucial to pretrial release plans, negotiations, trial strategy, sentencing outcomes, and reentry plans.

The Kansas FPD is proud to be an equal opportunity employer. Diversity and dignity are central to our work. We hire without regard to 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. We do not tolerate any form of discrimination or harassment in any personnel decisions or employee interactions.

Here are links to the full descriptions of the attorney position and the social worker position, including detailed information about salary and benefits.