DEFENDER SERVICES OFFICE
TRAINING DIVISION





The Defender Services Office Training Division furthers the right to effective assistance of counsel by providing training and other resources to attorneys appointed under the Criminal Justice Act.





    March 03, 2015
    Supreme Court to Rule on Conspiracy to Extort
    Yesterday the Supreme Court granted cert in Ocasio v. United States (No. 14-361) to decide whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. 

    February 25, 2015
    Supreme Court Holds That a Fish Is Not a "Tangible Object" Under 18 U.S.C. §1519
    Today the Court issued an opinion in Yates v. United States, in which it reversed the judgment of the Eleventh Circuit.  In the plurality opinion Justice Ginsburg wrote, "Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information."  For an analysis of the opinion see this SCOTUSblog post.

    January 26, 2015
    Supreme Court to Hear Challenge to Oklahoma's Lethal Injection Protocol
    After refusing to delay the execution of one of the petitioners, the Supreme Court granted cert last Friday in Glossip v. Gross (No. 14-7955), to decide these questions regarding the constitutionality of Oklahoma's three-drug lethal injection. See these articles in the New York Times and NPR for more on the case. 

    January 20, 2015
    Supreme Court to Rule on Mental State Required for Conviction Under Controlled Substances Analogue Act; Issues Decisions in Two Habeas Cases
    On January 16, 2015 the Supreme Court granted cert in McFadden v. United States (No. 14-378) to decide whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove the defendant knew that the substance constituted a controlled substance analogue.

    The Court also issued a summary reversal in the capital habeas case of Christeson v. Roper (No. 14-6873), ruling that, pursuant to Martel v. Clair, 565 U.S. ___ (2012), the Eighth Circuit improperly affirmed the district court's denial of the petitioner's motion for substitute counsel.

    In addition, on January 13, 2015, the Court held in Jennings v. Stephens (No. 13-7211) that a prisoner who sought federal habeas relief based on three theories of ineffective assistance of counsel and prevailed in the district court on two of them is not required to file a cross-appeal or seek a certificate of appealability on the third theory to rely on it as part of his defense against the state’s appeal.  For an analysis of the opinion, see this SCOTUSblog post.

    January 13, 2015
    Supreme Court Hands Down Opinion on Forced-Accompaniment Provision of Bank Robbery Statute
    Earlier today the Supreme Court issued a unanimous opinion holding that “a bank robber 'forces [a] person to accompany him,' for purposes of [18 U.S.C.] §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance."

    January 13, 2015
    Sentencing Commission Publishes Proposed Guideline Amendments
    On January 9, 2015 the Sentencing Commission voted to publish proposed amendments to the guidelines and issues for comment.  The Commission will hold a hearing in March and will vote on the final amendments in April.

    Proposed amendments and issues for comment include:

    • single sentence rule for career offenders (in cases where one offense is a qualifying offense and one is not)
    • mitigating role under 3B1.2
    • inflationary adjustment to loss tables
    • sophisticated means under 2B1.1
    • victim table in 2B1.1
    • intended loss under 2B.1
    • fraud on the market
    • jointly undertaken activity under 1B1.3
    • hydrocodone under 2D1.1
    • flavored drugs

    January 12, 2015
    Supreme Court to Decide Whether ACCA's Residual Clause Is Unconstitutionally Vague
    On Friday, the Supreme Court ordered supplemental briefing and oral argument in Johnson v. United States (No. 13-7120), a case that was first argued in November, 2014. In the new order, the Court has asked the parties to address: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)(2)(B)(ii), is unconstitutionally vague."
     

    December 15, 2014
    Supreme Court Holds Traffic Stop Based on Mistake of Law Still Proper; Grants Cert on Retroactivity of Miller v. Alabama
    Today, the Supreme Court issued its decision in Heien v. North Carolina (No.13-604), holding that a police officer's traffic stop did not violate the Fourth Amendment even though it was based on a mistake of law. 

    The Court also granted cert last Friday in Toca v. Louisiana (No. 14-6381) to determine (1) Whether the decision in Miller v. Alabama, limiting sentences of life without parole for minors who commit murder, applies retroactively in this case; and 2) Whether a federal question is raised by a claim that a state collateral review court erroneously failed to find a exception?

    In an 8-1 majority opinion, written by Chief Justice Roberts, the Court in Heien explained:

    In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.

    December 10, 2014
    Recent Supreme Court Cert Grants and Opinions of Interest to CJA Practitioners
    In a unanimous opinion issued on December 8 - Warger v. Shauers (No.13-517) - the Supreme Court held that FRE 606(b) precludes a party seeking a new trial from using one juror's affidavit of what another juror said in deliberations to demonstrate the other juror's dishonesty during voir dire.  For an analysis of the opinion see this SCOTUSblog post

    On December 5, the Supreme Court granted cert in Brumfield v. Cain (No. 13-1433) to address the following issues:

    (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

    Earlier in the term, the Court granted cert in another habeas case Chappel v. Ayala (No. 13-1428) to address: (1) whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C.
    § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision;  and (2) whether the Court of Appeals properly applied the standard articulated in Brecht v.
    Abrahamson
    .

    And in Henderson v. United States (No. 13-1487) the Court will determine whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under FRCP 41(g) or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.


    November 03, 2014
    New Sentencing Guidelines Manual Now Available
    The 2014 Sentencing Guidelines Manual is now available in both PDF and HTML formats. 

    For an overview of the amendments that took effect on November 1, 2014, see this Summary of 2014 Amendments to the Sentencing Guidelines by National Sentencing Resource Counsel. 

    For guidance on the 2014 Amendments to USSG § 1B1.10, see FAQS: 2014 Amendments to USSG § 1B1.10: Retroactivity of "Drugs Minus 2" (Amendment 782) and Sentence Reductions in Cases Involving Mandatory Minimums and Substantial Assistance.

    October 15, 2014
    DOJ Announces New Policy: Prosecutors Should Not Request IAC Waivers in Plea Agreements
    In a press release issued yesterday, the Department of Justice announced a new policy of no longer asking "criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel." 

    Deputy Attorney General Cole conveyed the new policy to all federal prosecutors in this memo: Department Policy on Waivers of Ineffective Assistance of Counsel.  The memo directs prosecutors to no longer seek IAC waivers in plea agreements "whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal."  And in cases with an existing IAC waiver, "prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve."

    October 03, 2014
    Supreme Court to Hear Cases on Length of Traffic Stops and Confrontation Clause Challenge to Use of a Child's Out-of-Court Statements About Abuse
    Yesterday, the Supreme Court granted cert in two criminal cases, Rodriguez v. United States (No. 13-9972) and Ohio v. Clark (No. 13-1352). 

    In Rodriguez, the question presented, as stated in the petition, is:

    This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are "de minimis" intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

    In Clark, the Court will address  (1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.




    October 01, 2014
    Attorney General Holder Issues Memo on § 851 Enhancements in Plea Negotiations
    In a memo dated September 24, 2014 - Guidance Regarding § 851 Enhancements in Plea Negotiations - Attorney General Eric Holder directed all federal prosecutors that such enhancements "should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty."  Also, at least one news report indicates that Holder may issue additional memos, including one announcing that federal prosecutors will no longer request that defendants waive their right to appeal for ineffective assistance of counsel when pleading guilty: "Government Rethinks Waivers With Guilty Pleas" (Wall Street Journal, September 26, 2014).


    July 18, 2014
    Sentencing Commission Votes to Retroactively Apply Its Amendment to the Drug Guidelines
    Today the Sentencing Commission voted to retroactively apply its guideline amendment reducing the offense levels in the drug quantity table by two levels. The Commission's decision includes a requirement that reduced sentences cannot take effect until November 1, 2015.  Read the full text of the retroactivity amendment in this Reader-Friendly Version.  For more on the Commission's decision, see this press release.   

    July 02, 2014
    Supreme Court to Rule on Drug Paraphernalia Conviction as a Deportable Offense
    Earlier this week the Court granted cert in Mellouli v. Holder (No. 13-1034) to decide the following question:  Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.


    June 25, 2014
    Supreme Court Holds That a Warrant Is Required for Cell Phone Searches
    Today, the Supreme Court issued a unanimous, consolidated opinion in United States v. Wurie and Riley v. California (Nos. 13-132, 13-212), declining to extend the search incident to arrest exception in United States v. Robinson, 414 U.S. 218 (1973) "to searches of data on cell phones, and hold[ing] instead that officers must generally secure a warrant before conducting such a search." 

    The Court sought a clear rule for cell phone searches, rejecting the government's various proposed solutions as infeasible and/or overly intrusive.  Instead, the Court reasoned, case-specific exceptions may still justify a warrantless search, such as the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, or assist the injured.

    In summing up its conclusion, the Court stated: "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life' . . . . The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant."

    For more on the opinion, see this SCOTUSblog post.

    June 24, 2014
    Supreme Court Rules on Intent Required for Bank Fraud Conviction; Grants Cert on Forced Accompaniment in Bank Robbery Offenses
    Yesterday, the Supreme Court issued an opinion in Loughrin v. United States (No. 13-316), interpreting the provision of the federal bank fraud statute, 18 U.S. C. §1344(2), that prohibits a knowing scheme to obtain property owned by, or in the custody of, a bank "by means of false of fraudulent pretense, representations, or promises."  The Court unanimously held that this provision does not require proof of specific intent to deceive a bank. Petitioner could therefore be convicted under the statute for passing altered checks to obtain merchandise and cash from retailers.  For an analysis of the opinion see this SCOTUSblog post

    The Court also granted certiorari in Whitfield v. United States (No. 13-9026) to decide whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

    June 16, 2014
    Supreme Court Issues Opinion on Straw Purchasers; Grants Cert on Threats Under 18 U.S.C. § 875(c)
    Today, the Supreme Court decided Abramski v. United States (No.12-1493) and granted certiorari in Elonis v. United States (No. 13-983).

    In Abramski, the Court held that a straw purchaser can be convicted under 18 U. S. C. §922(a)(6) for making false statements about “any fact material to the lawfulness of the sale” of a firearm, regardless of whether or not the true buyer could have purchased the gun without the straw.  For an analysis of the opinion see this SCOTUSblog post.

    In Elonis, the questions presented are:

    (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. § 875(c) requires proof of the defendant's subjective intent to threaten.


    June 03, 2014
    Supreme Court Rejects Application of Chemical Weapons Law to "Local" Crimes
    Yesterday, the Supreme Court decided Bond v. United States (No. 12-158), addressing the use of a law implementing a chemical weapons treaty to prosecute a woman for attempting to poison her husband's lover.  The Court unanimously held that the federal prosecution was improper in this case.  According to the majority opinion, written by Chief Justice Roberts, the statute could not be read to reach Bond's conduct.  "We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.”  In their concurring opinion, Justices Scalia, Thomas and Alito declared that the law's application to Bond in this case was unconstitutional. For an analysis of the decision, see this SCOTUSblog post.  

    May 27, 2014
    Supreme Court Issues Opinions on Use of IQ Test Score in Death Cases; Double Jeopardy; and Use of Deadly Force in High Speed Chases
    Today, the Supreme Court decided Hall v. Florida (No. 12-10882), Martinez v. Illinois (No. 13-5967), and Plumhoff v. Rickard (No. 12–1117).
      
    In Hall v. Florida, the Court held that Florida's threshold requirement, as interpreted by the Florida Supreme Court, that defendants show an IQ test score of 70 or below before being permitted to submit additional intellectual disability evidence is unconstitutional.  Writing for the 5-4 majority, Justice Kennedy explained:

    "This Court has held that the Eighth and Fourteenth Amendments to the Constitution forbid the execution of persons with intellectual disability. Atkins v. Virginia, 536 U.S. 304 , 321 (2002). Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional."

    For more on the opinion see this SCOTUSblog post.

    The Court issued a per curiam opinion in Martinez v. Illinois, addressing a double jeopardy claim. The Court held that where the trial court had granted Martinez's motion for a directed not-guilty verdict after the court swore in the jury and the State declined to present any evidence, the State could not then appeal in an attempt to subject Martinez to a new trial.  For more on the case, see this SCOTUSblog post.

    In Plumhoff v. Rickard, a qualified immunity case, the Court held that the use of deadly force by police officers (firing multiple rounds into a car during a high-speed chase, contributing to the death of the driver and a passenger) was not unreasonable given the threat to public safety. As such, the officers did not violate the Fourth Amendment and, in any event, the officers were entitled to qualified immunity because they did not violate any clearly established law.  For more on the case, see this SCOTUSblog post.

 

       Latest News Archives