Ineffective Assistance of Appellate Counsel Lynch v. Dolce, 789 F.3d 303 (6.18.2015)(Lynch, Leval, Droney) • Appellate counsel failed to argue that trial court should have instructed jury that, to convict petitioner of robbery by using or threatening the immediate use of a dangerous instrument, it had to find that petitioner actually possessed a dangerous instrument at the time of the crime • District court wrongly found defendant not prejudiced because su ffi cient evidence nonetheless supported finding that petitioner possessed a weapon at the relevant time; proper test under Strickland is whether there was a reasonable probability that, but for counsel’s error, the outcome would have been di ff erent 24
Where Have All the Prosecutions Gone? 25
Where Have All The Prosecutions Gone? 26
Federal Prosecutions Down > 20% Indictments: Informations: 27
2/18/2016 Prosecutions through September 2015 New York East Prosecutions for 2015 The latest available data from the Justice Department Number Yeartodate 935 show that during FY 2015 the government reported 935 Percent Change from previous year 3.3 new prosecutions in the Eastern District of New York (Brooklyn). According to the casebycase information Percent Change from 5 years ago 42 analyzed by the Transactional Records Access Percent Change from 10 years ago 53.9 Clearinghouse (TRAC), this number is up 3.3% over the Percent Change from 20 years ago 71.2 past fiscal year when the number of prosecutions totaled 905. Table 1: Criminal Prosecutions The comparisons of the number of defendants charged with offenses are based on casebycase information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1). Compared to five years ago when there were 1,612, the number of FY 2015 prosecutions of this type is down 42 percent. Prosecutions over the past year are lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 53.9 percent from the level of 2,028 reported in 2005 and down 71.2 percent from the level of 3,241 reported in 1995. EDNY PROSECUTIONS The long term trend in prosecutions for these matters going back to FY 1995 is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of prosecutions of this type recorded each fiscal year. Each presidential administration is distinguished by the color of the SOURCE: TRACFED bars. To view trends monthbymonth rather than yearbyyear, see TRAC's monthly report series for the latest data. Figure 1: Criminal Prosecutions over the last 20 years Leading Program Areas 28 Cases were classified by prosecutors into more specific types. The single largest number of prosecutions of these matters through September 2015 was for "Narcotics/Drugs", accounting for 24.5 percent of prosecutions. The second largest number of matters were Prosecutions filed under the program area of "Withheld by Govt from TRAC " (17.4%) . The "Other" category in Figure 2 is comprised of a http://tracfed.syr.edu/results/9x7056c5cbaea9.html 1/3
2/18/2016 Prosecutions through September 2015 New York South Prosecutions for 2015 The latest available data from the Justice Department Number Yeartodate 1,804 show that during FY 2015 the government reported Percent Change from previous year 5.3 1,804 new prosecutions in the Southern District of New York (Manhattan). According to the casebycase Percent Change from 5 years ago 24.9 information analyzed by the Transactional Records Percent Change from 10 years ago 36.8 Access Clearinghouse (TRAC), this number is up 5.3% Percent Change from 20 years ago 30.4 over the past fiscal year when the number of prosecutions totaled 1,714. Table 1: Criminal Prosecutions The comparisons of the number of defendants charged with offenses are based on casebycase information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1). Compared to five years ago when there were 2,403, the number of FY 2015 prosecutions of this type is down 24.9 percent. Prosecutions over the past year are lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 36.8 percent from the level of 2,854 reported in 2005 and down 30.4 percent from the level of 2,591 reported in 1995. SDNY PROSECUTIONS The long term trend in prosecutions for these matters going back to FY 1995 is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of prosecutions of this type recorded each fiscal year. Each presidential administration is distinguished by the color of the SOURCE: TRACFED bars. To view trends monthbymonth rather than yearbyyear, see TRAC's monthly report series for the latest data. Figure 1: Criminal Prosecutions over the last 20 years 29 Leading Program Areas Cases were classified by prosecutors into more specific types. The single largest number of prosecutions of these matters through September 2015 was for "Narcotics/Drugs", accounting for 30.2 percent of prosecutions. The second largest number of matters were Prosecutions filed under the program area of "White Collar Crime " (21.1%) . The "Other" category in Figure 2 is comprised of a diverse group of http://tracfed.syr.edu/results/9x7056c5d0f413.html 1/3
Official Corruption Prosecutions Falls to 20 Year Low Transactional Records Access Clearinghouse, 3.23.16 30
White Collar Crime Convictions Continue To Decline Transactional Records Access Clearinghouse, 4.7.16 31
Headed Toward More White Collar Prosecutions?— Yates Memo 32
Headed Toward More White Collar Prosecutions?— Yates Memo 33
Yates Memo (l) in order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct; (2) criminal and civil corporate investigations should focus on individuals from the inception of the investigation; (3) criminal and civil attorneys handling corporate investigations should be in routine communication with one another; 34
Yates Memo (4) absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation; (5) Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and (6) civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay 35
“Going forward, corporate plea agreements and settlement agreements will include a provision that requires the companies to continue providing relevant information to the government about any individuals implicated in the wrongdoing. A company's failure to continue cooperating against individuals will be considered material breach of the agreement and grounds for revocation or stipulated penalties” -Dep, Atty, Gen, Yates 36
Yates Memo Fallout “Analyzing Early Returns on the Yates Memo,” by William F. Johnson (NYLJ 3.3.2016) • “The government has, post-Yates Memo, requested that companies not share certain information with counsel for their employee-witnesses during the investigation” • “The practice is unfair to the individuals who … should be permitted access to the information available to them at the time of the events under investigation (such as their own emails, documents, and even company-made recordings of their phone calls). [It] also prevents the company from fully defending itself because it cannot review the evidence in the investigation with its own employees or former employees” 37
False Wisdom “It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape” Hon. Alex Kozinski, Preface to 2015 Georgetown L.J. Review of Criminal Procedure 38
False Wisdom • Eyewitnesses are highly reliable • Fingerprint evidence is foolproof • Other types of forensic evidence are scientifically proven and therefore infallible • DNA evidence is infallible 39
False Wisdom • Human memories are reliable • Confessions are infallible because innocent people never confess • Juries follow instructions • Prosecutors play fair 40
False Wisdom • The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt • Police are objective in their investigations • Guilty pleas are conclusive proof of guilt • Long sentences deter crime 41
DOJ 11.4.2015 Rebuttal to Kozinski Preface • Andrew D. Goldsmith, Associate Deputy Attorney General, National Criminal Discovery Coordinator Office of the Deputy Attorney General • John F. Walsh, United States Attorney, District of Colorado; Chair – Attorney General’s Advisory Committee 42
“While the preface raises several points that merit discussion, such as the reliability of certain forms of evidence, Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country. His preface seemed to question not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct in the (very small) minority of cases when someone falls short” 43
Kozinski’s Suggestions Require open file discovery Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations Adopt standardized, rigorous procedures for eyewitness identification Video record all suspect interrogations 44
Suggestions, Cont’d Impose strict limits on the use of jailhouse informants Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process Keep adding conviction integrity units Establish independent Prosecutorial Integrity Units 45
Antonin Scalia March 13, 1936 - February 13, 2016 46
First Amendment “I don’t care who is doing the speech — the more the merrier” • Texas v. Johnson, 491 U.S. 397 (1989) (Brennan) • provided the pivotal fifth vote holding that there is a First Amendment right to burn the American Flag • But said: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag” • R.A.V. v. St. Paul, 505 U.S. 377 (1992) (Scalia) • finding facially invalid under First A city ordinance prohibiting bias-oriented disorderly conduct, used to prosecute cross- burner • "burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire” 47
6th A. Right To Jury Trial/ Sentencing Guidelines • Apprendi v. N.J. , 530 U.S. 466 (2000) — concurrence • Blakely v. Washington , 542 U.S. 296 (2004) — author • U.S. v. Booker , 543 U.S. 220 (2005) — concurred in main opinion, dissented from remedial opinion 48
Confrontation • Maryland v. Craig, 497 U.S. 836 (1990) (6th A did not bar the use of one-way closed-circuit television to present testimony by an alleged child sex abuse victim) • Scalia, in dissent (joined by Brennan, Marshal and Stevens): “The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction” 49
“The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction” 50
Confrontation • Crawford v. Washington , 541 U.S. 36 (2004) (Scalia): Defendant must have had opportunity to cross-examine witness as predicate to admitting prior testimonial statements of witness who has since become unavailable, even if “inherently reliable” • Giles v. California , 554 U.S. 353 (2008) (Scalia): Introduction of murder victim’s previous report that defendant threatened to kill her violated confrontation clause. Forfeiture by wrongdoing applies only where purpose of conduct is to prevent testimony • Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009) (Scalia): 6th A violation to admit a chemical drug test report (cocaine) without the testimony of the person who performed the test • Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) — joined majority opinion of Ginsburg, with Thomas, Sotomayor, and Kagan — defendant had right to confront analyst who certified blood-alcohol analysis report in DUI case 51
Fourth Amendment Kyllo v. U.S ., 533 U.S. 27 (2001) (Scalia) — use of thermal • imaging device to measure heat emanating from home was a search U.S. v. Jones ,132 S.Ct.945 (2012) (Scalia) — attachment of • Global–Positioning–System (GPS) tracking device to vehicle, and subsequent use of that device to monitor vehicle's movements on public streets, was 4th A search Florida v. Jardines, 133 S.Ct. 1409 (2013) (Scalia) — law • enforcement officers' use of drug-sniffing dog on front porch of home, to investigate an unverified tip that marijuana was being grown in the home, was a trespassory invasion of the curtilage which constituted a 4th A search 52
Fourth Amendment Dissents • Navarette v. California, 134 S.Ct. 1683 (2014) (Thomas) — motorist’s anonymous 911 emergency call, reporting that a pickup truck had run her off the road, was sufficiently reliable and established reasonable suspicion for stop • Scalia dissent: “Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our 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. This is not my concept, and I am sure would not be the Framers', of a people secure from unreasonable searches and seizures… The Court's opinion serves up a freedom-destroying cocktail …” 53
Fourth Amendment Dissents • Maryland v. King, 133 S.Ct .1958) (2013) ( upholding DNA swabbing for persons arrested for “serious” offenses) • Scalia dissent, joined by Ginsburg, Sotomayor and Kagan: “Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime” 54
Gleeson Legacy 55
“The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.” —Bryan Stevenson, Just Mercy: A Story of Justice and Redemption 56
Prior Felony Informations under 21 U.S.C. § 851 U.S. v. Kupa , 976 F.Supp.2d 417 “There was no suggestion that Congress enacted § 851 so prosecutors could use their newfound discretion to trigger enhanced punishments as a tool to strong-arm federal defendants into pleading guilty or to punish those who exercise their right to a trial“ 57
U.S. v. Kupa , Cont’d “My focus here is narrow and my point is simple: as the defendant Lulzim Kupa's case and countless others show, the government abuses its power to file prior felony informations in drug trafficking cases . The single most important factor that influences the government's decision whether to file or threaten to file a prior felony information (or to withdraw or promise to withdraw one that has previously been filed) is illegitimate” 58
Holder Policy The 8/12/13 Holder Memo provides that the decision to file the § 851 prior felony complaint requires consideration of the following factors: • Whether the defendant was an organizer, leader, manager or supervisor of others within a criminal organization; • Whether the defendant was involved in the use or threat of violence in connection with the offense; • The nature of the defendant's criminal history, including any prior history of violent conduct or recent prior convictions for serious offenses; Practice Tip: • Whether the defendant has significant ties to large-scale drug Whenever the government threatens to file a § trafficking organizations, gangs, or cartels; 851 prior felony complaint, consider • Whether the filing would create a gross sentencing disparity submitting a letter to the USAO and Main with equally or more culpable co-defendants; and Justice arguing why the complaint would be • Other case-specific aggravating or mitigating factors. inconsistent with the Holder Policy 59
Disclosing Proffers of Non- Cooperating Defendants U.S. v. Rivera, 117 F.Supp.3d 172 (7.22.15) May the Department of Probation inform the sentencing court of inculpatory statements made by the defendant at a proffer that did not result in a cooperation agreement? 60
U.S. v. Rivera, Cont’d “In any prosecution brought against Client…, the Office will not offer in evidence any statements made by Client at the Meeting (A) in its case-in-chief or (B) at sentencing [with certain exceptions]. The Office will, to the extent it believes it is required by law, notify the Probation Department and the Court in connection with sentencing of any [relevant] statements made by Client at the Meeting” 61
U.S. v. Rivera, Cont’d • Government Argument: 18 U.S.C. § 3661 provides that the court can consider, without limit any and all information relevant to sentencing • The Court: Fact that court may consider all information doesn’t mean it should receive information parties agreed should be excluded: • “Against th[e] extensive backdrop of [the government’s] withholding (and sometimes even misrepresenting) facts, the government's current insistence that it feels required by statute to tell judges all facts relevant to all sentences is difficult to take seriously ” 62
U.S. v. Rivera, cont’d • Government Argument: To the extent the proffer agreement includes a promise to withhold Rivera's proffer statements from the Court, such a promise is unenforceable because it is contrary to public policy as expressed by the Second Circuit • The Court: “One wonders both why the government executed such an agreement with Rivera if it actually believes it was contrary to public policy to do so, and why it continues to execute substantially identical agreements with proffering defendants to this day” • In any event Second Circuit holdings do not support the government’s position 63
NYLJ 11.20.15: “EDNY Judges No Longer Told of Proffer Admissions” “The Eastern District U.S. Attorney's Office has discontinued a policy of notifying sentencing judges about proffer statements that defendants make in unsuccessful cooperation agreement talks” 64
Resentencing to Correct Excessive Sentence U.S. v. Holloway, 68 F.Supp.3d 310 (7.25.14) “A federal judge concluded Tuesday that a man who has spent approximately 19 years of a 58- year sentence in prison for multiple armed carjackings had paid his debt to society and resentenced him to time served. The outcome, said Gleeson, was "not a matter of grace. It is an effort on our part to do what we're here to do: administer justice” 65
Expungement Doe v. U.S., 110 F.Supp.3d 448 (5.21.15) Granting expungement to naturalized citizen from Haiti and single mother of four, convicted of relatively minor health care fraud, and who lost several jobs when employers learned of her conviction Follow Up: Shortly after Doe , SDCA District Judge Larry Burns granted similar relief 66
Certificate of Rehabilitation U.S. v. Doe , 15-MC-1174 (JG) (3.7.16) 67
SUPREME COURT REVIEW 68
Mens Rea for Threats Elonis v. U.S. , 135 S.Ct. 2001 (2015) (Roberts) To convict defendant of transmitting in interstate commerce “any communication containing any threat ... to injure the person of another,” (18 U.S.C. § 875(c)) is it enough to prove that a reasonable person would have regarded the communication as a threat or must the government prove that the defendant intended that communication be viewed as a threat? 69
Elonis v. U.S. , Cont’d 70
Elonis v. U.S. , Cont’d Jury instruction as given: “A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” 71
Elonis v. U.S. , Cont’d • Mens rea must be proved even though not included in statutory language • “General rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime • In some cases, a general requirement that defendant act knowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require ... specific intent” • Instruction’s “reasonable person” language was a feature of civil tort liability not appropriate to convict of crime 72
Elonis v. U.S. , Cont’d Section 875(c)'s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat 73
Mens Rea For Selling Analogue Drugs McFadden v. U.S., 1 35 S.Ct. 2298 (6.18.2015) (Thomas) •Defendant charged with selling analogue drugs (here, bath salts, producing effects such as cocaine or methamphetamine) •Court instructed the jury that the statute required that “the defendant knowingly and intentionally distributed a mixture or substance that has” substantially similar effects on the nervous system as a controlled substance and “[t]hat the defendant intended for the mixture or substance to be consumed by humans” •Appeals court: “intent element [in the Act] requires [only] that the government prove that the defendant meant for the substance at issue to be consumed by humans” •Right or wrong? 74
McFadden , Cont’d • Held: Knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance—that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue 75
McFadden , Cont’d Justice ROBERTS, concurring in part and concurring in the judgment. I join the Court's opinion, except to the extent that it says the Government can satisfy the mental state Practice Tip: requirement of Section 841(a)(1) “by showing that the Numerous statutes have ambiguous mens rea defendant knew the identity of the substance he requirements; resist any instructions that don’t require possessed…” In cases involving well-known drugs the government to prove the defendant, on some such as heroin, a defendant's knowledge of the level, understood he was acting wrongfully identity of the substance can be compelling evidence that he knows the substance is controlled. But that is not necessarily true for lesser known drugs 76
Confrontation: Ohio v. Clark , 135 S.Ct. 2173 (2015) (Alito) Were three-year-old’s statements to teacher identifying defendant as his abuser primarily “testimonial” under the Confrontation Clause? •“Primary purpose test” not always dispositive •Also relevant: •Was statement considered testimony at time of the Founding? •Was statement to a law enforcement officer? •Was statement made during an ongoing emergency? 77
Ohio v. Clark, Cont’d Irony: Three-year old’s out-of-court statements are admitted to convict defendant of serious crime, but he is deemed incompetent to testify in court, and no 6th violation found because her out-of-court statements were not “testimonial” 78
Ohio v. Clark, Scalia, Concurring “I write separately, however, to protest the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington…For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “ ‘indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531 (1980). Prosecutors, past and present, love that flabby test… Crawford remains the law…The author unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by inability to muster the votes to overrule them….” 79
Vagueness Of ACCA Residual Clause: Johnson v. U.S ., 135 S.Ct. 2551 (6.26.15) (Scalia) Residual Clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), held unconstitutionally vague Offending language: term “violent felony” includes crime that “otherwise involves conduct that presents a serious risk of physical injury to another” “[I]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process” 80
Post- Johnson • Circuits hold 18 U.S.C. § 16 (similarly defining “crime of violence” for purposes of Title 18) unconstitutional • United States v. Gonzalez-Longoria , 813 F.3d 225 (5th Cir. 2016) (rehearing en band granted 2.26.16); • United States v. Vivas–Ceja , 808 F.3d 719, 720 (7th Cir.2015); • Dimaya v. Lynch , 803 F.3d 1110 (9th Cir.2015) 81
Johnson Retroactive Welch v. U.S. (4.18.16): Johnson announced a new substantive rule that would be retroactive on collateral review Government had agreed in Welch that Johnson is retroactive (SC appointed amicus to argue non- retroactivity) 82
Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity In re Robinson , No. 16-11304 (11th Cir. April 19, 2016) (Beverly Martin, concurring) “[B]elow is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson. I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications 83
YO Adjudications Under The ACCA U.S. v. Sellers , 784 F.3d 876 (4.27.15) (Droney) Does a drug conviction under New York law that resulted in a youthful offender adjudication qualify as a predicate conviction under the ACCA? 84
Pre-Trial Seizure of Untainted Assets Luis v. U.S., 136 S.Ct. 1083 (3.30.16) (Breyer, plurality opinion) Does the pretrial restraint of legitimate, untainted assets belonging to a defendant charged with violating federal health care of banking laws (18 U.S.C. § 1345), and needed to retain counsel of choice, violate the Sixth Amendment? 85
Luis v. U.S., Cont’d “The relevant difference [between this case and Caplin & Drysdale and Monsanto ] consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple” 86
Luis v. U.S., Cont’d Justice Thomas’s concurrence: “The asset freeze here is not merely an incidental burden on the right to counsel of choice; it targets a defendant’s assets, which are necessary to exercise that right, simply to secure forfeiture upon conviction. The prospect of that criminal punishment, however, is precisely why the Constitution guarantees a right to counsel. The Sixth Amendment does not permit the Government's bare expectancy of forfeiture to void that right” 87
Does Forfeiture Notice In Indictment Establish Necessary Nexus Between Crime and Seized Property? U.S. v. Cosme , 796 F.3d 226 (8.10.15) (Walker) Does inclusion of forfeiture demand in indictment establish existence of probable cause to seize identified property, precluding separate post-seizure due process hearing? 88
Brady Violation Wearry v. Cain , 136 S.Ct. 1002 (3.7.16)(pc) • Capital convictions reversed for Brady violations, including post- trial revelations that: • Lynchpin witness Scott ascribed conduct to a co-conspirator that likely was impossible given the co-conspirator’s recent surgery • Scott coached an inmate to lie about the murder • Scott may have implicated defendant to settle a personal score • Prosecutor suggested that second witness — Brown — had not received a benefit for testifying but withheld fact that he sought — and still might receive — one 89
Brady Violation Lewis v. Conn. Com’r of Corr., 790 F.3d 109 (5.14.2015) (Walker) • Contrary to state court’s finding, Brady does not incorporate a “due diligence” test • Brady’s “should have known” standard speaks to facts already within the defendant's purview, not those that might be unearthed by taking affirmative steps • The prosecutor’s asserted good faith — i.e. that he was unaware of the evidence — is irrelevant since, at least, the police knew 90
91
Limits Of FISA ACLU v. Clapper , 785 F.3d 787 (5.7.15) (Lynch) FBI and NSA’s collection of virtually all telephone metadata associated with telephone calls made by and to Americans found not relevant to authorized counterterrorism investigations and exceeded authority granted by the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C.A. § 1861 92
ACLU v. Clapper , Postscript Subsequent to ACLU v. Clapper , Congress passed the Freedom Act, which effectively put an end to the telephone metadata program and created an alternative program See ACLU v. Clapper , 804 F.3d 617 (10.29.15) 93
Seizure Must End When Cause Dissipates U.S. v. Watson , 787 F.3d 101 (5.21.15) (Rakoff) Officer’s close-up viewing of suspect negated possibility he was robbery suspect and further restraint and search were therefore unlawful “The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face” 94
Warrant To Search Wrong Apartment U.S. v. Bershchansky , 788 F.3d 102 (6.5.15) (Chin) Did agents act in good faith when they searched “Apt. No. 1” with a warrant that authorized the search of “Apt. No. 2”? 95
SENTENCING 96
Recidivism Among Federal Offenders: A Comprehensive Overview United State Sentencing Commission, March 2016 Over an eight year Almost one-third follow-up period, (31.7%) of the almost one-half of offenders were federal offenders also released in 2005 reconvicted, and (49.3%) were one-quarter rearrested for a (24.6%) of the new crime or offenders were rearrested for a reincarcerated violation of over the same supervision conditions study period 97
A federal Of those Offenders offender’s offenders who released prior criminal history recidivated, to age 21 had was closely most did so the highest correlated with within the first rearrest rate, recidivism rates. two years of the 67.6 percent, Rearrest rates eight year while offenders range from 30.2 follow-up over sixty years percent for period. The old at the time offenders with median time to of release had a zero total criminal rearrest was 21 recidivism rate history points to months of 16.0 percent 80.1 percent of offenders in the highest Criminal History Category, VI 98
Rule of Lenity U.S. v. Pierce , 785 F.3d 832 Defendant is convicted of two 924(c) counts, one requiring mandatory minimum 5 (firearm possessed) and the other mandatory minimum 10 (firearm discharged). Which one is raised to the 25-year minimum as a second 924(c) conviction? 5 10 +25 or +25 30 35 99
Aiding and Abetting 924(c) Offense U.S. v. Prado, 815 F.3d 93 (2.24.16) (Pooler) • Reversing conviction under 18 U.S.C. § 924(c) for using/carrying gun in furtherance of crime of violence reversed because aiding and abetting instructions violated Rosemond v. U.S. , 134 S.Ct. 1240 (2014)(Kagan) • Instruction did not require jury to find that the defendants joined in criminal venture with full knowledge of its scope and had advanced knowledge of the firearm at the time that they could have chosen not to participate in the crime 100
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