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.





    February 26, 2014
    Supreme Court Issues Opinions on Warrantless Search of Premises, Pre-Trial Restraint on Forfeitable Property, and Crime of Reentering a Miltiary Installation
    This week, the Supreme Court issued opinions in Fernandez v. California (No. 12-7822 ) (limiting the exception to the rule permitting warrantless searches of jointly occupied premises upon consent of one of the occupants); Kaley v. United States (No. 12-464) (permitting the pre-trial restraint on an indicted defendant's forfeitable property without a post-indictment judicial finding of probable cause), and United States v. Apel (No. 12-1038) (interpreting the term "military installation" under 18 U.S.C. §1382). 

    In Fernandez, the Court limited the application of Georgia v. Randolph, which had held that the consent of one occupant is insufficient to authorize the police to search a premises without a warrant if another occupant is present and objects to the search. The majority refused to extend this rule to Fernandez's case: "Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared."   For more on the facts and reasoning of the opinion, see this opinion analysis and this commentary on SCOTUSblog. 

    The Court in Kaley addressed the extent to which a criminal defendant can challenge the pre-trial seizure of forfeitable assets under 21 U. S. C. §853(e). The defendants argued that they should be able to challenge the grand jury's finding of probable cause underlying the asset freeze, because they otherwise could not afford to retain their counsel of choice.  The Court rejected that argument.  Justice Kagan, for the majority, wrote:  "In United States v. Monsanto, 491 U.S. 600, 615 (1989), we approved the constitutionality of [an order freezing assets] so long as it is 'based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.'  And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer."  
     

    "The Kaleys little dispute that proposition; their argument is instead about who should have the last word as to probable cause. A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses . . . . The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution . . . .  And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries."

    For an analysis of the opinion see this SCOTUSblog post.

    In Apel, the Court held that for the purposes of 18 U.S.C. § 1382, which makes it a crime to re-enter a “military installation” after having been ordered not to do so, a portion of an Air Force base that contains a designated protest area and an easement  for a public road qualifies as a “military installation.”  The Court did not address whether the statute would be unconstitutional as applied to the protester in this case.  For an analysis of the opinion see this SCOTUSblog post.

     


    January 28, 2014
    Supreme Court Rejects Drug Trafficking Sentencing Enhancement Where Defendant's Drug Sale Was Not the But-For Cause of User's Death
    In Burrage v. United States, decided yesterday, the Supreme Court unanimously held that the government must prove but-for causation under 21 U.S.C. § 841(b)(1)(C) in order to trigger the 20-year mandatory minimum and increased statutory maximum for drug trafficking when "death or serious bodily injury results from the use" of the drug.  The Court reversed Burrage's conviction for distributing heroin with "death resulting," as the government conceded that there is "no evidence that [the victim] would have lived but-for his heroin use."  For an analysis of the opinion, see this SCOTUSblog post

    January 21, 2014
    Supreme Court to Hear Cell Phone Search Cases
    On January 17th the Supreme Court granted certiorari in two cases, United States v. Wurie (No. 13-212) and Riley v. California (No. 13-132), to address the constitutionality of a warrantless search of a cell phone at the time of arrest. For more on these cases, see this SCOTUSblog post

    January 10, 2014
    Sentencing Commission Proposes Guideline Amendments That Include Reducing the Drug Quantity Table by 2 Levels
    Yesterday, the United States Sentencing Commission voted to publish proposed guideline amendments, including possible reductions to the guidelines levels for drug trafficking offenses and a proposed amendment addressing the implementation of the Violence Against Women Act.  A public hearing on the proposed amendments will be held on March 13, 2014.  Read the Commission's press release and the text of the proposed amendments for more information.

    December 20, 2013
    President Commutes 8 Sentences; Makes Strong Statement on Need for Legislative Reform

    Yesterday, the President commuted the sentences of 8 men and women, and made this Statement on Clemency:

    Three years ago, I signed the bipartisan Fair Sentencing Act, which dramatically narrowed the disparity between penalties for crack and powder cocaine offenses.   This law began to right a decades-old injustice, but for thousands of inmates, it came too late.   If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society.   Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year. 

    Today, I am commuting the prison terms of eight men and women who were sentenced under an unfair system.   Each of them has served more than 15 years in prison.   In several cases, the sentencing judges expressed frustration that the law at the time did not allow them to issue punishments that more appropriately fit the crime. 

    Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness.   But it must not be the last.   In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress.   Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all. 

     


    December 13, 2013
    Supreme Court to Hear Case on Proof Needed for Bank Fraud Conviction
    The Supreme Court today granted certiorari in Loughrin v. United States (No. 13-316), to decide whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344.  For more on the case see this SCOTUSblog post.

    December 12, 2013
    Supreme Court Permits Government's Use of Court-Ordered Psychological Exam to Rebut Evidence of Defendant's Mental State
    Yesterday, the Supreme Court issued an opinion in Kansas v. Cheever, holding that the Fifth Amendment does not prohibit the government from introducing evidence from a court­-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. For more on the opinion see this SCOTUSblog post

    December 06, 2013
    Report Shows How Prosecutors Force Drug Defendants to Plead Guilty by Threatening Harsh Mandatory Sentences
    Human Rights Watch has issued a 126-page report, An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty. The report details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. 


    November 27, 2013
    Amendment to Fed. R. Crim. P. 11(b)(1) Implements Padilla Holding
    Effective December 1, 2013, an amendment to Federal Rule of Criminal Procedure 11(b)(1) will require that, before accepting a plea of guilty or nolo contendere, the court advise the defendant, and ensure that he understands, that "if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citzenship, and denied admission to the United States in the future." Fed. R. Crim. P. 11(b)(1)(O). See Amendments to the Federal Rules of Criminal Procedure for more information. 


    October 22, 2013
    Supreme Court to Address Application of Atkins v. Virginia, and Restitution for Mortgage Fraud
    Yesterday, the Supreme Court granted cert in Hall v. Florida (No. 12-10882) and Robers v. United States (No. 12-9012).  The question presented in Hall is whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia. In Robers the Court will address whether a defendant – who has fraudulently obtained a loan and thus owes restitution for the loan under 18 U.S.C. § 3663A(b)(1)(B) – returns “any part” of the loan money by giving the lenders the collateral that secures the money.  For more on these cases see this SCOTUSblog post and this Sentencing Law & Policy post.   

    October 15, 2013
    Supreme Court Grants Cert in Straw Purchase of Firearm Case
    The Supreme Court today granted certiorari in Abramski v. United States (No. 12-1493) to decide (1) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a fact “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and (2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required . . .to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).

    October 15, 2013
    Policy Changes and Proposed Legislation Regarding Mandatory Minimums Promise Varying Degrees of Impact
    In recent months, Attorney General Holder issued new policies regarding the charging of mandatory minimums in drug trafficking cases, and also vowed to work with Congress to enact legislation reforming mandatory minimum statutes, specifically citing the “Justice Safety Valve Act” and the “Smarter Sentencing Act.” (For more on this legislation see our Sentencing Resource Page).   The Federal Public and Community Defenders used data from the Sentencing Commission to estimate the number of offenders who might benefit annually from the Holder Memo, the Justice Safety Valve Act, and the Smarter Sentencing Act.  Key differences among the proposals are:  1) whether they apply to all mandatory penalties, or only those applicable to drug trafficking offenses; and 2) whether they also direct changes to the sentencing guidelines.   See Summary of Impact Estimates, Memo on Impact of the Holder Memo, Memo on Justice Safety Valve Act, and Memo on Smarter Sentencing Act.

    October 02, 2013
    Supreme Court Opens Term with Two Cert Grants in Criminal Cases
    Yesterday, the Supreme Court granted certiorari in two cases of interest to criminal defense practitioners: United States v. Castleman (No. 12-1371) and Navarette v. California (No. 12-9490). In Castleman, the Court will address whether the respondent's conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a "misdemeanor crime of domestic violence" under 18. U.S.C. § 922(b)(9). In Navarette, the issue presented is whether police, after getting an anonymous tip about drunken or reckless driving, must actually observe that kind of misconduct before they may stop a vehicle.

    August 12, 2013
    BOP Issues New Program Statement on Compassionate Release/Reduction in Sentences
    Today, BOP issued a program statement setting forth criteria to implement compassionate release/reduction in sentences under 18 USC 3582(c)(1)(A) and 4205(g) for inmates with terminal and other serious medical conditions; inmates who are elderly; inmates with biological or adopted children whose primary caregiver has died or been incapacitated; and inmates whose spouse or registered partner has become incapacitated.

    August 12, 2013
    Attorney General Eric Holder Announces New Charging Policies on Mandatory Minimums
    During his remarks at the August 12, 2013 Annual Meeting of the ABA's House of Delegates, Eric Holder announced new policies to limit the charging of mandatory minimums in drug cases, including for prior convictions under 21 U.S.C. 851, to encourage prosecutors not to charge minor offenses federally, and to encourage prosecutors to move for variances when the guideline range exceeds a mandatory minimum. More on Eric Holder's speech.

    June 27, 2013
    Supreme Court Grants Cert to Address Restitution in Child Porn Cases; Issues Opinion in Hobbs Act Case

    Today, the Supreme Court granted certiorari in Paroline v. United States (No.12-8561), to address the following question:

    What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution in a child pornography case under 18 U.S.C. Sec. 2259?

    The Court also granted certiorari in a death penalty case, White v. Woodall (No. 12-794), to review the Sixth Circuit's grant of habeas relief on the ground that the trial court's failure to provide a no adverse inference instruction at the sentencing phase of the trial violated the defendant's Fifth Amendment right against self-incrimination. 

    In addition, yesterday, the Court issued an opinion in Sekhar v. United States (No. 12-357), holding that attempting to compel a person to recommend that his employer approve an investment does not constitute "the obtaining of property from another" under the Hobbs Act.  For more on the case, see this SCOTUSblog post.


    June 25, 2013
    Supreme Court Rules on SORNA Challenge Under Necessary and Proper Clause
    Yesterday, the Supreme Court issued an opinion in United States v. Kebodeaux (No. 12-418), holding that, as applied to respondent Anthony Kebodeaux, the registration requirements of the Sex Offender Registration and Notification Act fall within the scope of Congress’s authority under the Necessary and Proper Clause.  For more on the case, see this SCOTUSblog analysis, and this Volokh Conspiracy post.


    June 20, 2013
    Supreme Court Rules in ACCA Case That Modified Categorical Approach Only Applies to Divisible Statutes with Alternative Elements

    Today, the Supreme Court issued an opinion in Descamps v. United States, (No. 11-9540) holding that the "modified categorical approach" of determining whether a prior conviction under a state statute qualifies as a violent felony under ACCA does not apply to statutes that have only one set of indivisible elements. 

    In an 8-1 decision by Justice Kagan, with Justice Alito dissenting, the Court ruled that Descamps' conviction for California burglary under section 459 of the California Code does not qualify as a violent felony because the elements of the offense sweep more broadly than "generic" burglary, i.e., unlawfully entering a building, under ACCA.  In fact, the state statute is so broad as to cover shoplifting. The Court declined to apply the modified categorical approach, which would have permitted the examination of the underlying records of conviction to determine whether Descamps had actually unlawfully entered a building. Instead, the Court held that the modified categorical approach applies only to divisible statutes that set forth alternative elements.  Thus, whether Descamps admitted in his plea colloquy to breaking and entering was irrelevant because breaking and entering is not an element of section 459.

    The Court reaffirmed the reasons for the elements approach set forth in Taylor: (1) it comports with the ACCA text and history; (2) it avoids Sixth Amendment concerns; and (3) it avoids the "practical difficulties and potential unfairness of a factual approach." 

    The Court left open whether a sentencing court may look to judicial rulings interpreting a statute to determine its elements.  It also noted that the government forfeited the issue of whether California burglary qualifies as a violent felony under the residual clause.

    Justice Thomas, concurred, reiterating his view that Almendarez-Torres, should be overruled. 

    For more on the opinion, see this SCOTUSblog post.


    June 17, 2013
    Supreme Court Overrules Harris v. United States
    In Alleyne v. United States (No. 11-9335), issued today, the Supreme Court overruled Harris v. United States, to hold that any facts which increase a defendant's mandatory minimum sentence must be proved to a jury beyond a reasonable doubt.  

    The Court also issued an opinion in Salinas v. Texas (No. 12-246), holding that it was permissible for the prosecution at trial to comment on the defendant's pre-arrest silence during questioning.  Last week, the Court also handed down its opinion in United States v. Davila (No. 12-167), holding that when a judge participates in plea negotiations, contrary to Federal Rule of Criminal Procedure 11(c), the defendant's guilty plea need not be vacated if there is no evidence of prejudice.

    In Alleyne, a jury had convicted petitioner of using or carrying a firearm in relation to a crime of violence, 18 U.S.C. §924(c)(1)(A).  Under the statute, the mandatory minimum of five years increases to seven if the firearm is "brandished."  The jury indicated on the verdict form that Alleyne had used or carried a firearm, but did not indicate a finding that the firearm was "brandished."  Notwithstanding the verdict form, and over Alleyne's objection, the district court determined the evidence did support a finding of brandishing, and, citing Harris, imposed the mandatory minimum sentence of seven years.  The Court of Appeals affirmed. 

    In Harris, the Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment, in contrast to factfinding that increases the statutory maximum.  In overruling Harris, the 5-4 Alleyne majority found that the distinction between mandatory maximums and minimums is inconsistent with Apprendi v. New Jersey and with the original meaning of the Sixth Amendment.  Writing for the majority Justice Thomas concluded, "Any fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt.  Mandatory minimum sentences increase the penalty for a crime.  It follows, then, that any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury."  The majority also made clear, however, that judges may still find uncharged facts by a preponderance when exercising broad discretion within a statutory range.

    For more on Alleyne, Salinas and Davila see these SCOTUSblog posts:
    Analysis of Alleyne v. United States
    Analysis of Salinas v. Texas
    Analysis of United States v. Davila

    June 10, 2013
    Supreme Court Holds That Ex Post Facto Clause Applies to Advisory Guidelines
    Today, the Supreme Court issued an opinion in Peugh v. United States (No. 12-62), holding that there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.  This is so, notwithstanding that the Guidelines are now advisory, because “[a] retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”   For more on the opinion see this SCOTUSblog post.

 

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