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
, 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.
, 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
, 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
, 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
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
May 05, 2014
Supreme Court Resolves Circuit Split on Calculating Restitution in Mortgage Fraud Case
In Robers v. United States
(No. 12-9012), issued today, the Supreme Court concluded that in a mortgage fraud case, the Mandatory Victims Restitution Act requires "a sentencing court [to] reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it."
The Court was interpreting a provision of the Mandatory Restitution Act of 1996 stating that when return of the property lost by the victim is "impossible, impracticable, or inadequate," the offender must pay the victim "an amount equal to . . . the value of the property" less "the value (as of the date the property is returned) of any part of the property that is returned." The question before the Court was whether "any part of the property" is "returned" when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.
Robers had been convicted of wire fraud for submitting fraudulent loan applications to banks for the purchase of two houses. After he failed to make loan payments, the banks foreclosed on the mortgages, took title of the houses, and subsequently sold them in a down market. The sentencing court ordered Robers to pay restitution in the amount the banks loaned to him, less the sum the banks received from the sale of the houses. On appeal, Robers argued that the sentencing court should have reduced the restitution amount by the value of the houses at the time the banks took title to them, which was higher than the price for which the houses sold. In a brief opinion, the Supreme Court upheld the Court of Appeals' decision rejecting Robers' argument, resolving a split among the Circuits.
For more on the opinion, see this SCOTUSblog post
April 28, 2014
Supreme Court to Consider the Definition of a "Tangible Object" Under the Anti-Shredding Provision of the Sarbanes-Oxley Act
Today, the Supreme Court granted cert in Yates v. United States
(No. 13-7451). The petitioner, a commercial fisherman, was charged and convicted under 18 U.S.C. § 1519, the "anti-shredding" provision of the Sarbanes-Oxley Act of 2002, which makes it a crime for anyone who "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object" with the intent to impede or obstruct an investigation. The government prosecuted Yates under this statute for destroying purportedly undersized, harvested fish from the Gulf of Mexico. The question presented in the case is whether Yates "was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, where the term 'tangible object' is ambiguous and undefined in the statute, and unlike the nouns accompanying 'tangible object' in section 1519, possesses no record-keeping, documentary, or informational content or purpose."
April 24, 2014
DOJ Announces Criteria for Clemency Applications
Yesterday, DOJ announced "six criteria the department will consider when reviewing and expediting clemency applications from federal inmates." Read DOJ's full press release
April 24, 2014
Supreme Court Issues Opinions on Restitution to Child Pornography Victims, and AEDPA Limitations
Yesterday, the Court issued opinions in Paroline v. United States
(No. 12-8561) and White v. Woodall
, the Court held that restitution is proper in child pornography cases "only to the extent the defendant's offense proximately caused a victim's losses." The Court rejected the contention that any one defendant is responsible for the entire loss amount. Instead, trial courts "should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." For more on the opinion, see this SCOTUSblog post
, the Court reversed the decision of the Sixth Circuit affirming the district court's grant of habeas relief. Woodall had raised a Fifth Amendment claim based on the state trial court's refusal to grant his request for a no-adverse-inference instruction during the punishment phase of his capital trial. The Kentucky Supreme Court affirmed. The district court and the Sixth Circuit concluded that the Kentucky Supreme Court's decision was an unreasonable application of clearly established federal law under AEDPA. In reversing, the Supreme Court held that the Sixth Circuit had "disregarded the limitations of 28 U.S.C. 2254(d) -- a provision of law that some federal judges find too confining, but that all federal judges must obey." For more on the opinion, see this SCOTUSblog post
April 22, 2014
Supreme Court to Determine Whether Possession of Short-Barreled Shotgun Is an ACCA Violent Felony; and Whether a Mistake of Law Can Justify a Traffic Stop. Court Also Upholds a Traffic Stop Based on a 911 Report of Reckless Driving.
Yesterday, the Supreme Court granted cert in an ACCA case, Johnson v. United States
(No. 13-7120) and a traffic stop case, Heien v. North Carolina
(13-604). In addition, earlier today the Court issued an opinion in another traffic stop case, Navarette v. California
, the question presented is whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. The Eighth Circuit had ruled that the prior offense qualified as a violent felony under ACCA's residual clause. Heien
raises whether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. Police had stopped petitioner's car after noticing that one of the brake lights was out, but North Carolina law requires only one working brake light.
the police had stopped petitioner on the basis of a 911 call reporting that a car had run the caller off the road. The question presented for the Court was whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle. In a 5-4 decision, the Court held that "the stop complied with the Fourth Amendment because, under a totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated." In a dissenting opinion, Justice Scalia countered that the majority was establishing a disturbing new rule: "So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop."
April 11, 2014
Sentencing Commission Votes to Adjust the Drug Quantity Table Down by 2 Levels
Yesterday, the Sentencing Commission voted on various amendments to the guidelines, including an amendment to adjust the Drug Quantity Table down by 2 levels. The amendments will be submitted to Congress by May 1, 2013, and, barring Congressional action, they will take effect November 1, 2014.
The amendment to the drug guidelines does not address retroactivity. The Commission will publish an issue for comment on retroactivity
, with comments due in June, 2014.
Practitioners should consider using yesterday's vote on the drug guidelines to argue for a variance or continuance starting immediately. As noted in this Latest News Post
, last month DOJ directed "prosecutors not to object if defendants in court seek to have the [then] newly proposed [drug] guidelines applied to them during sentencing."
For more on all of the amendments on which the Commission voted, including drugs, read this Summary of 2014 Guideline Amendments
by Sentencing Resource Counsel. The full text of the amendments is available in this Reader-Friendly Version
March 27, 2014
Supreme Court Rules on What Constitutes a "Misdemeanor Crime of Domestic Violence” Under 18 U. S. C. §922(g)(9)
Yesterday, the Supreme Court issued an opinion in United States v. Castleman
(No. 12-1371), in which it held that Castleman's prior Tennessee conviction for "intentionally or knowingly caus[ing] bodily injury to" the mother of his child qualified as a "misdemeanor crime of domestic violence" under 18 U. S. C. §922(g)(9).
Writing for the majority, Justice Sotomayor first pointed to the legislative history of the statue, noting that Congress sought to close a loophole in the gun laws: "While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors." Turning to the definition of "misdemeanor crime of domestic violence" in the statute, the Court focused on the requirement that such an offense have as an element "the use or attempted use of physical force."
In interpreting "physical force" the Court applied the common-law definition "namely, offensive touching," and concluded that such a definition "fits perfectly" in cases involving convictions for common-law battery, such as Castleman's.
The majority relied on Johnson v. United States
, 559 U.S. 133 (2010) in support of its conclusion. In Johnson
, the Court addressed the "force clause" in the ACCA's definition of "violent felony," which defines a "violent felony" as an offense that has "as an element the use, attempted use, or threatened use of physical force." The Court held that the force in that clause must be "violent force," that is, "force capable of causing physical pain or injury to another person." Addressing a prior battery conviction, the Court held that the common-law element of "force" in the crime of battery, which can be the slightest offensive touching, does not fit with the kind of "violent force" Congress had in mind in enacting the ACCA.. As a result, generic battery is not a "violent felony" for purposes of the ACCA. Because the intent behind the enactment of ACCA differed from the intent underlying §922(g)(9), the Castleman majority reasoned that the common-law meaning of force should apply in interpreting the latter.
For more on the opinion, see this SCOTUSblog post
March 13, 2014
Holder Supports Commission's Proposed Reduction in Drug Quantity Table and Directs Prosecutors Not to Object to Requests for Application of the Proposed Drug Guidelines in Current Sentencings
At today's public hearing before the Sentencing Commission, Attorney General Holder voiced his support of the Commission's proposal to reduce the drug quantity table by 2 levels. See this DOJ press release
for the text of Holder's testimony, as prepared for delivery. According to the DOJ press release, until the Commission votes on the proposal, "the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing." The DOJ submitted written comments
on these and other proposed guidelines.
March 06, 2014
Supreme Court Determines What Is Needed to Show Aiding and Abetting of an 18 U.S.C. § 924(c) Offense
Yesterday, the Supreme Court decided Rosemond v. United States
(No. 12-895), addressing what constitutes aiding and abetting the use or carrying of a firearm during and irelation to any crime of violence or drug trafficking crime under 18 U.S.C. § 924(c). In an opinion authored by Justice Kagan, the Court held, "[T]he Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed."
For an analysis of the opinion see this SCOTUSblog post
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).
, 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
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.