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.





    April 26, 2016
    Supreme Court Grants Cert on Intent Requirement for Bank Fraud Offense, and Jurisdictional Question in Appeal of Deferred Restitution Award
    Yesterday the Supreme Court granted cert in two criminal cases. In  Shaw v. United States  (No. 15-5991) the Court will address whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held. 

    In Manrique v. United States (No. 15-7250) the question presented is: Should the Court grant certiorari to resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely
    appeal of a criminal judgment imposing sentence.

    For more on these cases see this SCOTUSblog post.

    April 21, 2016
    Supreme Court Clarifies Standard of Review When a Sentencing Court Applies an Incorrect Guideline Range
    Yesterday the Supreme Court issued an 8-0 decision in Molina-Martinez v. United States (No. 14-8913), rejecting the Fifth Circuit's  conclusion that "a  defendant seeking appellate review of an unpreserved Guidelines error  [must] make  some  further  showing  of  prejudice  beyond  the  fact  that  the  erroneous,  and  higher,  Guidelines  range  set  the wrong framework for the sentencing proceedings."  As Justice Kennedy explained in the majority opinion, "This is  so  even  if  the  ultimate  sentence  falls  within  both  the  correct  and  incorrect  range.    When  a  defendant  is  sentenced  under  an  incorrect  Guidelines  range—whether  or  not  the defendant’s  ultimate  sentence  falls  within  the  correct range—the error itself can, and most often will, be sufficient  to  show  a  reasonable  probability  of  a  different  outcome absent the error."  For more on the opinion see this SCOTUSblog post by Douglas Berman.

    April 19, 2016
    Johnson Is Retroactive, Supreme Court Declares
    Yesterday the Supreme Court issued a 7-1 opinion in Welch v. United States (No. 15-6418), holding that the rule in Johnson - that ACCA's residual clause is void for vagueness - is substantive and therefore has retroactive effect in cases on collateral review.  For more on the opinion see this SCOTUSblog post.

    April 19, 2016
    Sentencing Commission Amends Guidelines
    On April 15, 2016 the Sentencing Commission voted to amend the sentencing guidelines, making some significant changes in immigration policy, as well as changes to the child pornography, compassionate release, conditions of supervision, and animal fighting guidelines.  For a summary of the amendments, see the USSC's press release.  For the full text, see the Reader-Friendly Version of Amendments.  Absent Congressional action, the amendments will take effect on November 1, 2016.  

    April 05, 2016
    Supreme Court Issues SORNA Decision and Grants Cert on Juror Bias Issue
    Yesterday the Supreme Court issued a unanimous opinion in Nichols v. United States (No. 15-5238), holding that Mr. Nichols was not required under SORNA to update his sex offender registration in Kansas when he moved to the Philippines.  Based on the statutory language, the Court reasoned that  "[a] person who moves from Leavenworth to Manila no longer 'resides' (present tense) in Kansas;  although  he  once resided in  Kansas,  after  his  move  he  'resides'  in  the  Philippines."  For more on the opinion see this SCOTUSblog post.

    The Court also granted cert in Pena-Rodriguez v. Colorado (No. 15-606) to decide whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.  For more on the case see this SCOTUSblog post.

    Lastly, the Court issued a per curiam opinion in Woods v. Etherton (No. 15-723) to summarily reverse on AEDPA deference grounds a decision by the Sixth Circuit in favor of a state habeas petitioner.

    March 30, 2016
    Supreme Court to Hear Double Jeopardy Claim; Issues Opinion in Counsel of Choice Case
    On March 28th, the Supreme Court granted cert in Bravo-Fernandez v. United States (No. 15-537) to decide the following issues: (1) whether, under Ashe v. Swenson and Yeager v. United States, a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause; and (2) whether, under Evans v. Michigan, the Double Jeopardy Clause permits a district court to retract its “judgment of acquittal” entered on remand as an interpretation of the Court of Appeals’ mandate.  For more on the case see this SCOTUSblog post.

    In addition, today the Court decided Luis v. United States, holding that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. 

    For a summary of all pending or recently decided Supreme Court cases relevant to the criminal defense practitioner read Paul Rashkind's Supreme Court Update.

    March 04, 2016
    Supreme Court Issues Opinion Interpreting 10-Year Mandatory Minimum Trigger for Possession of Child Pornography Conviction
    On Monday, February 29th, the Supreme Court held in Lockhart v. United States (No. 14-8358) that Mr. Lockhart's prior conviction for sexual abuse of his then-girlfriend, aged 53, qualifies as a predicate offense for purposes of triggering the 10-year mandatory minimum under 18 U.S.C. § 2252(b)(2).  That section subjects defendants to the mandatory minimum if they have "a prior conviction . . . under the law of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."  According to the Court the phrase "involving a minor or ward" in § 2252(b)(2) modifies only "abusive sexual conduct."  For more on the opinion, see this SCOTUSblog post.

    January 27, 2016
    Latest Opinions and Cert Grants by the Supreme Court Address Numerous Issues of Interest to Criminal Defense Practitioners
    The Supreme Court on Monday issued two opinions:

    Montgomery v. Louisiana (No. 14-280): holding that the rule prohibiting mandatory life without parole for a juvenile convicted of a homicide offense is a substantive rule to which courts must give retroactive effect on collateral review. See this SCOTUSblog post for opinion analysis.

    Mussachio v. United States (No. 14-1095): holding (1)  When a jury instruction adds an element to the charged crime and the government fails to object, a challenge to the sufficiency of the evidence should be assessed against the elements of the charged crime, rather than the elements set forth in the erroneous jury instruction; and (2) a defendant cannot successfully raise a statute-of-limitations bar for the first time on appeal. See this SCOTUSblog post for opinion analysis.

    In addition, the Supreme Court has recently granted cert on a range of issues, including the modified categorical approach under ACCA, recalling jurors after dismissal of the jury from service, the proof necessary to establish insider trading, and the type of "official action" necessary for a felony conviction under the Hobbs Act and honest-service fraud statute. Click on the link below for case names and issues presented.

    Cert Grants

    Mathis v. United States (No. 15-6092)
    Issue: Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

    Salman v. United States (No. 15-628)
    Issue: Does the personal benefit to the insider that is necessary to establish insider trading under Dirks v. SEC, 463 U.S. 646 (1983), require proof of "an exchange that is
    objective, consequential, and represents at least a potential gain of a pecuniary or
    similarly valuable nature," as the Second Circuit held in United States v. Newman, 773
    F.3d 438 (2d Cir. 2014), cert. denied, No. 15-137 (U.S. Oct. 5, 2015), or is it enough
    that the insider and the tippee shared a close family relationship, as the Ninth Circuit
    held in this case?

    Dietz v. Bouldin (No. 15-458)
    Issue: Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge's presence, the judge may recall the jurors for further service in the same case.

    McDonnell v. United States (No. 15-474)
    Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

    January 08, 2016
    Supreme Court Grants Cert on Johnson Retroactivity; Sentencing Commission Votes to Change Definition of Crimes of Violence and Proposes New Guideline Amendments
    Today, the Supreme Court granted cert in Welch v. United States (No. 15-6418) to determine "whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review."  While opposing cert in Welch, the Justice Department had previously taken the position in another case, Harrimon v. United States, that the Johnson rule was substantive. For more on Welch see this SCOTUSblog post.

    Also today, the Sentencing Commission adopted an amendment to the "crimes of violence" definition in Guideline 4B1.2.  Among other changes, the amendment strikes burglary of a dwelling from the crimes of violence definition. View all of the changes to 4B1.2 in this Reader Friendly Version of Amendment on Crime of Violence.  The new amendment will take effect August 1, 2016.  For more on the Amendment see the Sentencing Commission's press release

    In addition to the Crimes of Violence amendment, the Sentencing Commission issued its Proposed Amendments to the Sentencing Guidelines for 2016. The proposed amendments include: 2L1.2, alien smuggling, child porn distribution with file sharing programs, age and vulnerable victim enhancements, conditions of probation and supervised release, animal fighting, compassionate release and other miscellaneous amendments. View the Sentencing Commission's press release for more information.

    December 14, 2015
    Supreme Court to Rule on Warrantless Drunk Driving Tests; Use of Uncounseled Tribal Court Misdemeanor Convictions in 18 U.S.C. Section 117(a) Prosecutions
    On Friday, December 11, the Supreme Court granted cert in three state cases to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take the test.  The three cases, which will be consolidated for argument, are: Birchfield v. North Dakota (No. 14-1468), Bernard v. Minnesota (No. 14-1470), and Beylund v. Levi (14-1507).  For more on the cases see this SCOTUSblog post.

    Today, the Court granted cert in an additional case, United States v. Bryant (No. 15-420)  to decide whether it is constitutional to rely on valid uncounseled tribal-court misdemeanor convictions to prove the predicate-offense element of 18 U.S.C. Section 117(a).  That statute makes it a federal crime for a person to "commit[] a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country" if the person "has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for" enumerated domestic violence offenses.

    The Court also issued a per curiam opinion in the capital case of White v. Wheeler (No. 14-1372), summarily reversing the Sixth Circuit's grant of habeas relief on Roger Wheeler's Witherspoon/Witt juror bias claim.

    December 08, 2015
    Supreme Court to Decide Whether Speedy Trial Clause Applies to Sentencing
    On December 4, 2015 the Supreme Court granted cert in Betterman v. Montana (No. 14-1457) to address the following: "Whether the Sixth Amendment’s Speedy Trial Clause applies to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case."

    November 09, 2015
    Supreme Court to Decide SORNA's Applicability to Sex Offenders Who Reside Abroad
    On Friday, November 6, 2015, the Supreme Court granted cert in Nichols v. United States (No. 15-5238) to decide whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

    November 02, 2015
    Supreme Court to Address Definition of Misdemeanor Crime of Domestic Violence Under 18 U.S.C. 922 (g)(9)
    On October 30, 2015 the Supreme Court granted cert in Voisine v. United States (No. 14-10154) to address whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).

    November 02, 2015
    Amendments to Sentencing Guidelines Take Effect; Guidelines Manual Now Available
    On November 1, 2015 amendments to the federal sentencing guidelines took effect.  The 2015 U.S. Sentencing Commission Guidelines Manual is now available online.  For more information on the amendments, access the Commission's 2015 Amendments Online Education Program.

    October 08, 2015
    Sentencing Bills Introduced in House and Senate Offer Renewed Hope for Legislative Reform
    The House of Representatives has introduced a new bill, The Sentencing Reform Act, that largely mirrors The Sentencing Reform and Corrections Act of 2015 (S. 2123), a bipartisan bill introduced last week in the U.S. Senate by Senators Chuck Grassley (R-IA), Dick Durbin (D-IL), John Cornyn (R-TX), and Patrick Leahy (D-VT), among others.

    The Sentencing Reform and Corrections Act of 2015 would reduce several federal mandatory minimum drug and gun sentences and make those reductions retroactive; make the Fair Sentencing Act of 2010 retroactive; expand the federal “safety valve” exception for drug mandatory minimum sentences; and allow many federal prisoners to earn time credits for completing rehabilitative programs in prison.

    Read more about these bills and other sentencing legislation pending in Congress at famm.org.

    October 02, 2015
    Supreme Court Opens New Term with 5 Cert Grants in Cases of Interest to Criminal Defense Practitioners
    Yesterday, the Supreme Court granted cert in the following five cases.

    (1) Taylor v. United States (No. 14-6166)
    Question Presented:
    Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. §1951, the Government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.

    (2) Utah v. Strieff (No. 14-1373)
    Question Presented:
    Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later
    found to be unlawful?

    (3) Molina-Martinez v. United States (No 14-8913)
    Question Presented:
    Where an error in the application of the United States Sentencing Guidelines results in
    the application of the wrong Guideline range to a criminal defendant, should an
    appellate court presume, for purposes of plain-error review under Federal Rule of
    Criminal Procedure 52(b), that the error affected the defendant's substantial rights?

    (4) Williams v. Pennsylvania (No. 15-5040)
    Questions Presented:

    (a) Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney's Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had "sent" to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state post-conviction court that his office committed prosecutorial misconduct under Brady when it prosecuted and sought death against Petitioner?

    (b) Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?

    (5) Duncan v. Owens (No. 14-1516)
    Question Presented:

    No clearly established precedent of this Court holds that it violates the Constitution for a finder of fact to infer a criminal defendant's motive when the motive is a non-element of the offense and is not directly established by the evidence at trial. Respondent claimed that the judge at his bench trial made improper “extrajudicial” findings regarding his motive and thus found him guilty based on evidence not produced at trial. The state appellate court upheld respondent's conviction, holding that the trial court's speculation regarding motive was harmless. The Seventh Circuit overturned respondent's conviction on habeas corpus review, finding that the trial court's inference about motive violated respondent's right to have his guilt adjudicated solely on the evidence introduced at trial, and that the error was not harmless.  Did the Seventh Circuit violate 28 U.S.C. § 2254 and a long line of this Court's decisions by awarding habeas relief in the absence of clearly established precedent from this Court?"


    September 11, 2015
    NACDL Issues Report on Federal Indigent Defense System
    Federal Indigent Defense 2015: The Independence Imperative assesses the current state of the federal indigent defense system, and offers seven recommendations to address serious and persistent deficiencies revealed in its assessment. 

    August 12, 2015
    Fourth Circuit Ruling on Warrant Requirement for Historical Cell Site Records Creates Circuit Splits
    Last week, the Fourth Circuit in United States v. Graham held that there was an expectation of privacy in historical cell site records and that a warrant is required to obtain and inspect such information.  The case it at odds with several other Circuit rulings, which may lead to Supreme Court review.  For an analysis of the case see:

    Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant

    June 30, 2015
    Supreme Court Rejects Challenge to Lethal Injection Protocol; Grants Cert on Two Criminal Procedure Issues
    Yesterday the Supreme Court issued its opinion in Glossip v. Gross (No. 14-7955), rejecting an Eighth Amendment challenge to Oklahoma's lethal injection drug protocol.  For more on the opinion see this SCOTUSblog post.  

    The Supreme Court also granted cert in Musacchio v. United States (No. 14-1095), which raises the following questions:

    (1)  Whether the law-of-the-case doctrine requires the sufficiency of the
    evidence in a criminal case to be measured against the elements described
    in the jury instructions where those instructions, without objection,
    require the government to prove additional or more stringent elements than
    do the statute and indictment?

    (2) Whether a statute-of-limitations defense not raised at or before trial
    is reviewable on appeal?

    June 26, 2015
    Supreme Court Strikes Down ACCA Residual Clause as Unconstitutional
    Earlier today the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B), is unconstitutionally vague:

    "We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony." Scalia, J.

 

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