Frank Dunham Federal Criminal Defense Conference

Home , Indiana Supreme Court, Kansas Supreme Court, Pinkerton liability, Supreme Court of Ohio

THE OFFICES OF THE FEDERAL PUBLIC DEFENDERS FOR THE EASTERN AND WESTERN DISTRICTS OF VIRGINIA

JOINTLY PRESENT THE TWELFTH

FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE

Thursday, April 11 - Friday, April 12, 2019 Boar’s Head Inn, Charlottesville, Virginia This page intentionally left blank for double-sided pagination and printing TABLE OF CONTENTS

Program Schedule...... iv

Faculty Information...... vi

Fourth Circuit Update...... 1

Discussion overview...... 1

Frances H. Pratt & Patrick L. Bryant, Fourth Circuit Decisions on Criminal Law and Procedure (April 1, 2018 - March 30, 2019)...... 4

The Ethics of Joint Representation and Joint Defense Agreements ...... 27

Discussion overview...... 27

Hypotheticals...... 28

CJA Bonus Session: Using E-Voucher for the Services You Need to Represent Your Client...... 35

Presentation slides...... 36

Sample, non-capital case funding application...... 44

Sample, capital case funding application...... 49

Sample, funding authorization...... 54

Guide to Judicial Policy, Vol. 7, Ch. 3, Authorization and Payment for Investigative, Expert, or Other Services...... 56

Sample, engagement letter...... 77

Sample, ex parte request form seeking advance authorization for investigative, expert, or other services...... 78

FDFCDC i Supreme Court Review and Preview...... 81

Paul M. Rashkind, United States Supreme Court: Review, Preview, and Overview of Criminal Cases (as of April 2, 2019)...... 82

Writing, With Style...... 119

Discussion overview...... 119

Tip Sheets...... 123

Understanding Immigration Consequences of Federal Convictions...... 145

Ubong E. Akpan, Guide to Understanding Immigration Consequences of Federal Convictions...... 146

Appendix (a) – ILRC immigrant defendant questionnaire...... 162

Appendix (b) – Immigrant Defense Project’s summary checklist for immigration consequences of convictions...... 165

Appendix (c) – immigration resources on fd.org...... 167

Appendix (d) – list of federal misdemeanors...... 168

The First Step Act of 2018: What You Must Know to Help Your Clients. . . . . 187

Discussion overview...... 187

Text, First Step Act of 2018...... 190

Defending RICO Cases: Actually, You Can Win Them...... 217

Presentation slides...... 218

Ethics Game Show, Round VI...... 249

Discussion overview...... 249

FDFCDC ii James M. McCauley, How Virginia Lawyers Self-Regulate, Virginia Lawyer (Dec. 2018)...... 251

Principles of Professionalism (2009)...... 254

LEO 306 (1978) (Fee – Court-Appointed Attorney)...... 256

LEO 390 (1980) (Perjured Testimony – Court-Appointed Attorney). . . . 257

LEO 560 (1984) (Confidence/Secret – Intent to Commit Suicide)...... 258

LEO 1366 (1990) (Files – Duty to Client: Contents of File to Which the Client Is Entitled)...... 259

LEO 1790 (2004) (Client Files – Attorney’s Refusal to Release PSR). . . 261

LEO 1857 (2011) (Waiver of Prospective IAC Claim)...... 262

FDFCDC iii PROGRAM SCHEDULE

Note: All sessions are in the Pavilion I and II; Friday lunch will be in the Ballroom.

Thursday, April 11

1:30 Program check-in begins

2:25 Welcome and Introduction Geremy Kamens, FPD ED Va. Juval Scott, FPD WD Va.

2:30 Fourth Circuit Update Alan DuBois, FPD EDNC Patrick Bryant, RWA ED Va.

3:30 Break

3:45 The Ethics of Joint Representation and Tom Spahn, Esq. Joint Defense Agreements

4:45 Bonus Session for CJA Attorneys: Larry Dash, 4th Circuit Using E-Voucher for the Services You CJA Budgeting Attorney Need to Represent Your Client

5:30 Adjourn for evening

Friday, April 12

7:30 Continental breakfast begins

8:00 Program check-in continues

8:25 Welcome and Introduction Geremy Kamens, FPD ED Va. Larry Shelton, FPD WD Va.

8:30 Supreme Court Review and Preview Paul Rashkind, AFPD SD Fla.

9:30 Break

FDFCDC iv 9:45 Writing, with Style Jay McEntire, AFD ED Wash.

11:00 Understanding Immigration Conse- Ubong Akpan, Attorney quences of Federal Convictions Advisor, DSO Training Div.

12:00 Lunch (meal provided) Hon. Gerald B. Lee Keynote speaker

1:15 The First Step Act of 2018: What Benji McMurray, AFPD, D Utah You Must Know to Help Your Carter Burwell, Counsel to Clients Sen. John Corynn Nick Xenakis, Counsel to Sen. Dianne Feinstein

2:15 Break

2:30 Defending RICO Cases: Actually, Jack Cunha, Esq. You Can Win Them

3:30 Ethics Game Show, Ken Troccoli, AFPD ED Va. Round VI Ellen Shultz, ED Va.

4:30 Complete evaluations and adjourn

FDFCDC v FACULTY INFORMATION

UBONG E. AKPAN Attorney Advisory, Defender Services Office Training Division, Washington DC

Education: B.A. 1999, Boston University; J.D. 2003, American University Washington College of Law

Professional: Litigation associate, Venable LLP, Baltimore, Maryland, 2003-05; law clerk, Hon. Inez Smith Reid, District of Columbia Court of Appeals, 2005-06; associate, Dickstein Shapiro, LLP, Washington, DC, 2006-10; trial and appellate attorney, Law Offices of Emmanuel D. Akpan, J.D., Ph.D., Silver Spring, Maryland, 2010-12; research and writing attorney, Office of the Federal Public Defender, Pittsburgh, Pennsylvania, 2012-15; assistant deputy public defender, Office of the Public Defender for the State of New Jersey, Camden, New Jersey, 2015-17; Attorney Advisor, Defender Services Office Training Division, Washington, DC, 2017-present

PATRICK L. BRYANT Appellate Attorney, Office of the Federal Public Defender, Eastern District of Virginia

Education: B.A. 1998, Duke University; J.D. 2002, Washington and Lee University School of Law

Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2002-04 and 2005-07; law clerk, Hon. Charles R. Wilson, U.S. Court of Appeals for the Eleventh Circuit, Tampa, Florida, 2004-05; appellate attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2007-present

CARTER BURWELL Chief Counsel, Senator John Cornyn, Senate Judiciary Committee

Education: B.A. 1996, Columbia University; MPhil, Cambridge University, 1998; J.D. 2002, University of Virginia School of Law

FDFCDC vi Professional: Law clerk, Hon. John Gleeson, U.S. District Court, Eastern District of New York, 2002-03; law clerk, Hon. Karen Henderson, U.S. Court of Appeals for the D.C. Circuit, 2003-04; associate, Davis Polk & Wardwell, New York, New York, 2004-07; assistant U.S. Attorney, Eastern District of New York, 2007-12; assistant U.S. Attorney, Eastern District of Virginia, 2012-15; staffer, Senate Judiciary Committee, 2014-present

JOHN H. CUNHA, JR. Partner, Cunha & Holcomb, P.C. Boston, Massachusetts

Education: B.A. 1973, Boston College; J.D. 1977, Boston College Law School

Professional: Attorney, trial division, Massachusetts Defenders Committee, 1977-79; attorney, Massachusetts State Ethics Commission, 1979- 81; partner, Cunha & Holcomb, Boston, Massachusetts, 1981- present; instructor in criminal defense advocacy, Suffolk University Law School, 1982-85; instructor in criminal defense advocacy, Harvard Law School, 1985-95; member, Massachusetts State Sentencing Commission, 2016-present

LARRY M. DASH CJA Case Budgeting Attorney, U.S. Court of Appeals for the Fourth Circuit

Education: B.A. 1982, Columbia College (Missouri); J.D. 1989, Touro College, Jacob D. Fuchsberg Law Center

Professional: Assistant staff judge advocate, U.S. Air Force, 1991-94; circuit trial counsel, U.S. Air Force, 1994-97; associate, Greg D. McCormack, P.C., Virginia Beach, Virginia, 1997-98; private practice, Newport News, Virginia, 1998-2001; assistant federal public defender, Norfolk, Virginia, 2001-14; CJA case budgeting attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2014-present

G. ALAN DUBOIS Federal Public Defender, Eastern District of North Carolina

FDFCDC vii Education: B.A. 1984, Duke University; J.D. 1987, University of Virginia School of Law

Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 1988-89; assistant federal public defender (senior appellate attorney), Raleigh, North Carolina, 1989-2013; first assistant federal public defender, Raleigh, North Carolina, 2013-17; federal public defender, Raleigh, North Carolina, 2017- present

JOHN B. McENTIRE, IV Senior Litigator, Federal Defenders of Eastern Washington and Idaho

Education: B.A. 2004, Whitman College; J.D. 2007, Seattle University

Professional: Law clerk, Hon. Edward F. Shea, U.S. District Court, Richland, Washington, 2007-09; litigation associate, Lukins & Annis, P.S., Spokane, 2009-10; senior litigator, Federal Defenders of Eastern Washington & Idaho, 2010-present; adjunct faculty in advanced federal criminal procedure, trial advocacy, and advanced legal writing, Gonzaga University School of Law, 2013-present

BENJAMIN C. McMURRAY Assistant Federal Public Defender, District of Utah

Education: B.A. 2000, Brigham Young University; J.D. 2003, Brigham Young University

Professional: Law clerk, Hon. Paul G. Cassell, U.S. District Court for the District of Utah, 2003-04; law clerk, Hon. Timothy M. Tymkovich, U.S. Court of Appeals for the Tenth Circuit, Denver, Colorado, 2005-06; research & writing specialist, Utah Federal Defender Office, 2004-05, 2006-08; special counsel, U.S. Sentencing Commission, 2007-08; Supreme Court fellow, assigned to U.S. Sentencing Commission, 2008-09; special counsel, Senator Mike Lee, Washington, D.C.; assistant federal public defender, Salt Lake City, Utah, 2009-present; adjunct professor, University of Utah Law School, 2009-present; commissioner, Utah Sentencing Commission, 2010-14

FDFCDC viii PAUL M. RASHKIND Supervisory Assistant Federal Public Defender, Southern District of Florida

Education: B.B.A. 1972, University of Miami; J.D. 1975, University of Miami School of Law

Professional: Assistant state attorney, Miami, Florida, 1975-78; chief assistant state attorney (appeals), Miami, Florida, 1977-78; associate, Sams Gerstein & Ward, 1978-83; partner, Bailey, Gerstein, Rashkind & Dresnick, 1984-92; chief of appeals and supervisory assistant federal public defender, Miami, Florida, 1992-present

THOMAS E. SPAHN Partner, McGuireWoods LLP, McLean, Virginia

Education: B.A. 1974, Yale University; J.D. 1977, Yale Law School

Professional: Associate and partner, McGuireWoods, LLP, 1977-present; author, The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner's Guide (Virginia Law Foundation, 2013), Virginia Legal Ethics Opinion Summaries, and numerous articles; speaker at over 1,500 CLE programs; past and present professional service includes membership on the Virginia Bar’s Legal Ethics Committee, the Virginia Judicial Ethics Advisory Committee, the ABA Standing Committee on Ethics and Professional Responsibility, the American Law Institute (member), and the American Bar Foundation (fellow)

KENNETH P. TROCCOLI Assistant Federal Public Defender (Senior Litigator), Eastern District of Virginia

Education: B.A. 1981, Boston College; J.D. 1984, George Washington University Law School; LL.M. 2001, Georgetown University Law Center

Professional: Law clerk, Hon. H. Carl Moultrie, Superior Court of the District of Columbia, Washington, DC, 1984-85; associate, Krooth & Altman, Washington, DC, 1986-88; associate, Arent Fox Kintner Plotkin & Kahn, Washington, DC, 1988-91; associate, Cadwalader Wickersham & Taft, Washington, DC, 1991-92;

FDFCDC ix assistant/senior assistant public defender, Alexandria, Virginia, 1992-99; assistant federal public defender, Alexandria, Virginia, 2002-present; adjunct professor, American University Washing- ton College of Law, 2012-present

NICHOLAS J. XENAKIS Senior Counsel, Senator Dianne Feinstein, Senate Judiciary Committee

Education: B.A. 2005, Kenyon College; J.D. 2010, Stanford Law School

Professional: Law clerk, Hon. Robert B. King, U.S. Court of Appeals for the Fourth Circuit, Charleston, West Virginia, 2010-11; fellow, Equal Justice Initiative, Montgomery, Alabama, 2011-12; research and writing attorney, Office of the Federal Public Defender for the Eastern District of Virginia, Alexandria, Virginia, 2012-17; staffer, Senate Judiciary Committee

FDFCDC x FOURTH CIRCUIT UPDATE

G. Alan DuBois Patrick L. Bryant

DISCUSSION OVERVIEW

I. State of the Fourth Circuit

A. Judicial personnel updates

B. Increase in oral arguments

II. Developments in Fourth Circuit Case Law

A. Fourth Amendment

1. Border searches

Kolsuz (degree of suspicion necessary for nonroutine border search of cell phone)

2. Warrants

Pratt (reasonableness of delay in obtaining warrant to search seized cell phone)

Lyles (validity of warrant based on evidence gathered from trash pull)

FDFCDC 1 3 Reasonable suspicion

Kehoe (factors going to reasonable suspicion)

4. Consent

Azua-Rinconada (voluntariness of consent to warrantless entry into home)

B. Fifth Amendment

1. Self-incrimination

Abdallah (invocation of right to remain silent)

C. Sentencing Issues

1. Sentencing statutes

Simms (validity of residual clause in 18 U.S.C. § 924(c))

2. Sentencing Guidelines

Moore (credit for undischarged term of imprisonment)

Brown (criminal history points for “good behavior” condition)

FDFCDC 2 3. Forfeiture

Chittenden (forfeiture of untainted property under 18 U.S.C. § 982(a)(2))

D. Appeals / Post-conviction

1. Standards of review

Lockhart (plain error review in context of failure to advise on mandatory minimum and statutory maximum)

2. Appellate Procedure

Chaney (deadline for appeal from resentencing after successful § 2255 motion)

FDFCDC 3 FOURTH CIRCUIT DECISIONS ON CRIMINAL LAW AND PROCEDURE

Published Between April 1, 2018, and March 31, 2019

Prepared by Frances H. Pratt, Assistant Federal Public Defender, and Patrick L. Bryant, Appellate Attorney, Office of the Federal Public Defender, Alexandria, Virginia

FDFCDC 4 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page i

TABLE OF CONTENTS

INTRODUCTION...... 1

I. OFFENSES...... 1

8 U.S.C. § 1326, Illegal Reentry After Removal...... 1

18 U.S.C. § 32, Destruction of Aircraft...... 1

18 U.S.C. § 287, False Claims...... 1

18 U.S.C. § 666, Theft or Bribery Concerning Programs Receiving Federal Funds...... 2

18 U.S.C. §§ 922, 924, Firearms...... 2

18 U.S.C. § 1031, Major Fraud Against the United States...... 2

18 U.S.C. § 1341 et seq., Mail Fraud and Other Fraud Offenses...... 2

18 U.S.C. § 1512, Witness Tampering, Obstructing Official Proceeding...... 2

18 U.S.C. § 1951, Hobbs Act Robbery and Extortion...... 3

18 U.S.C. § 1959, Violent Crimes in Aid of Racketeering...... 3

18 U.S.C. § 2339B, Providing Material Support to Terrorist Organizations...... 3

33 U.S.C. § 1908, Act to Prevent Pollution from Ships...... 3

II. FOURTH AMENDMENT ISSUES...... 4

Border Searches...... 4

Consent...... 4

Franks Hearings...... 4

Fruit of the Poisonous Tree...... 4

Reasonable Suspicion...... 4

FDFCDC 5 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page ii

Standing...... 5

Warrants...... 5

III. FIFTH AMENDMENT ISSUES (Pre-trial and Trial)...... 6

Double Jeopardy...... 6

Due Process...... 6

Self-Incrimination...... 6

IV. SIXTH AMENDMENT ISSUES (Pre-trial and Trial)...... 7

Confrontation...... 7

Counsel / Self-Representation...... 7

Trial by Impartial Jurors...... 7

V. OTHER PRE-TRIAL ISSUES...... 8

Combatant Immunity...... 8

Pre-trial Restraint of Assets...... 8

Severance (Fed. R. Crim. P. 14)...... 8

VI. TRIAL ISSUES...... 8

Evidence...... 8

Confrontation...... 8

Federal Rules of Evidence 401 et seq...... 8

Federal Rules of Evidence 701 et seq...... 9

Federal Rules of Evidence 801 et seq...... 9

Federal Rules of Evidence 901 et seq...... 9

FDFCDC 6 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page iii

Sufficiency of Evidence...... 9

Jurors...... 10

Jury Instructions...... 10

VII. PLEA ISSUES...... 10

Entry of Guilty Plea (Fed. R. Crim P. 11)...... 10

Plea Agreements...... 11

VIII. SENTENCING ISSUES...... 11

Constitutional Challenges...... 11

Sentencing Statutes...... 11

18 U.S.C. § 924(e), Armed Career Criminal Act (ACCA)...... 11

18 U.S.C. § 3553(e), Substantial Assistance...... 11

18 U.S.C. § 3559(c), Federal Three Strikes Statute...... 12

Sentencing Guidelines...... 12

U.S.S.G. § 2B1.1, Fraud...... 12

U.S.S.G. § 2H1.1, Offenses Involving Individual Rights...... 12

U.S.S.G. § 2K2.1 et seq., Firearms Offenses...... 12

U.S.S.G. § 2M5.3, Providing Material Support to Terrorist Organizations. . . . . 12

U.S.S.G. § 3A1.1 et seq., Victim Related Adjustments...... 13

U.S.S.G. § 4A1.1 et seq., Computation of Criminal History...... 13

U.S.S.G. § 4B1.1 et seq., Career Offenders and Other Recidivists...... 13

U.S.S.G. § 5G1.3, Imposition of Sentence on Defendant Subject to Undischarged or Anticipated State Sentence...... 14

FDFCDC 7 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page iv

U.S.S.G. § 5K1.1, Substantial Assistance...... 14

U.S.S.G. § 5K2.0 et seq., Grounds for Departure...... 14

Sentencing Procedure...... 14

Restitution and Forfeiture...... 14

Supervised Release...... 15

Reasonableness of Sentence...... 16

Resentencing After Appeal or Grant of Other Post-Conviction Relief...... 16

IX. APPELLATE ISSUES...... 16

Appeal Waivers...... 16

Timeliness of Appeal...... 17

Reviewability of Issues...... 17

Publication of Opinions...... 17

Rehearing Petitions...... 18

Ineffective Assistance of Counsel on Appeal...... 18

X. POST-CONVICTION ISSUES...... 18

18 U.S.C. § 3582, Modification of Sentence of Imprisonment After Imposition...... 18

28 U.S.C. § 2241, 2255, et seq...... 18

FDFCDC 8 FOURTH CIRCUIT DECISIONS ON CRIMINAL LAW AND PROCEDURE Published between April 1, 2018, and March 31, 2019

Prepared by Frances H. Pratt, Assistant Federal Public Defender, and Patrick L. Bryant, Appellate Attorney, Office of the Federal Public Defender, Alexandria, Virginia

INTRODUCTION

This outline documents the published decisions of the Fourth Circuit over the past twelve months that address criminal law and procedure issues encountered by court-appointed attorneys or relevant to court-appointed representation, primarily on direct appeal. Decisions that represent defense wins or otherwise contain defense-favorable findings are marked by an exclamation point (!). Decisions that, in the compilers’ judgment, are significant because they contain particularly lengthy, thoughtful, or otherwise useful discussion are marked by an asterisk (*). Note that not every issue raised in a decision is reflected in the outline. Please report errors or omissions in the outline to the compilers at [email protected].

I. OFFENSES

8 U.S.C. § 1326, Illegal Reentry After Removal

United States v. Guzman-Velasquez, ___ F.3d ____, 2019 WL 1387557 (4th Cir. Mar. 28, 2019) (Motz, J.) (E.D. Va.) (defendant was not denied due process when there was no meaningful review provided for denial of defendant’s application for temporary protected status (TPS); collateral attack provision in § 1326(d) is limited by its plain language to challenges to prior removal orders, which defendant did not challenge)

18 U.S.C. § 32, Destruction of Aircraft

United States v. Hamidullin, 888 F.3d 62 (4th Cir. Apr. 18, 2018) (Floyd, J.) (E.D. Va.) (affirming conviction of defendant, a former Russian army officer affiliated with the Taliban, for attacking U.S. aircraft because plain language of statute applies to unlawful acts even when committed in a combat zone)

18 U.S.C. § 287, False Claims

United States v. Whyte, 918 F.3d 339 (4th Cir. Mar. 12, 2019) (Agee, J.) (W.D. Va.) (in prosecution for false claims and major fraud involving fraudulent requests for payment on military equipment contract issued by Joint Contracting Command – Iraq, finding for purposes of offense element that United States or one of its agencies be the defrauded party, Department of Defense was that party, not the Joint Contracting Command)

FDFCDC 9 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 2

18 U.S.C. § 666, Theft or Bribery Concerning Programs Receiving Federal Funds

* United States v. Tillmon, ___ F.3d ____, 2019 WL 921534 (4th Cir. Feb. 26, 2019) (Agee, J.) (E.D.N.C.) (in case where police officer accepted bribes to provide security during interstate transportation of drugs, for which he was paid $2,000 or $2,500 per trip, considering for first time § 666’s requirement that charged conduct involve “anything of value of $5,000 or more” and how to measure value for intangible services provided in exchange for bribe; vacating defendant’s three convictions for accepting bribes because each bribe was less than $5,000)

18 U.S.C. §§ 922, 924, Firearms

N.B.: For cases addressing the Armed Career Criminal Act, see Sentencing Statutes in Part VIII.

United States v. Simms, 914 F.3d 229 (4th Cir. Jan. 24, 2019) (en banc) (Motz, J.) (E.D.N.C.) (holding that “residual clause” of 18 U.S.C. § 924(c)’s definition of “crime of violence” is void for vagueness, and therefore unconstitutional, for same reasons that Supreme Court found residual clause in 18 U.S.C. § 924(e)’s definition of “violent felony” and in 18 U.S.C. § 16’s definition of “crime of violence” to be unconstitutional) (N.B.: The Supreme Court will hear oral argument on this issue on April 17, 2019, in United States v. Davis, U.S. No. 18-431; a decision should issue by late June)

18 U.S.C. § 1031, Major Fraud Against the United States

18 U.S.C. § 1341 et seq., Mail Fraud and Other Fraud Offenses

United States v. Burfoot, 899 F.3d 326 (4th Cir. Aug. 8, 2018) (Diaz, J.) (E.D. Va.) (where city council member was charged with wire fraud for scheme to solicit bribes, holding that evidence was sufficient where developers testified that they paid defendant in order to be awarded development project; further finding that defendant could reasonably foresee that developers would use wire transfers to make payments; holding that demand that developer pay delinquent taxes before being awarded contract was in furtherance of fraud scheme notwithstanding legal duty to pay taxes regardless of scheme)

18 U.S.C. § 1512, Witness Tampering, Obstructing Official Proceeding

United States v. Edlind, 887 F.3d 166 (4th Cir. Apr. 10, 2018) (Shedd, J.) (W.D. Va.) (finding evidence sufficient to convict defendant of “corruptly persuading” witness in friend’s human-trafficking trial; noting that government must prove that defendant acted “voluntarily and

FDFCDC 10 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 3

intentionally to bring about false or misleading testimony”; finding temporal connecting between pending trial and communications with witness to be significant, as well as the fact that defendant took steps to avoid being recorded; noting that corrupt persuasion includes “coaching” witness by providing false story as if it is true)

! United States v. Young, 916 F.3d 368 (4th Cir. Feb. 21, 2019) (Agee, J.) (E.D. Va.) (because an FBI investigation is not an “official proceeding” for purposes of federal obstruction statute and defendant’s actions had no nexus to another specific official proceeding, evidence was insufficient to prove that defendant knew that an official proceeding (such as a grand jury investigation) was pending or that one was reasonably foreseeable when he allegedly attempted to mislead FBI investigations)

18 U.S.C. § 1951, Hobbs Act Robbery and Extortion

United States v. Burfoot, 899 F.3d 326 (4th Cir. Aug. 8, 2018) (Diaz, J.) (E.D. Va.) (Hobbs Act extortion indictment was not duplicitous despite charging receipt of multiple things of value in single count because the extortion was one continuing scheme, not discrete violations; holding, in line with other circuits, that Hobbs Act extortion can be charged as continuing offense and that five- year statute of limitations does not bar conviction if scheme continued within limitations period)

18 U.S.C. § 1959, Violent Crimes in Aid of Racketeering

United States v. Zelaya, 908 F.3d 920 (4th Cir. Nov. 14, 2018) (Duncan, J.; Floyd, J. dissenting in part) (W.D.N.C.) (evidence was sufficient to prove that defendant committed murder in aid of racketeering where jury could infer, based on extreme nature of murder and communications to fellow gang member about it afterwards, that he committed it because it was expected of him as a gang member so he could maintain his position) (dissenting judge argued that evidence on purpose element was so thin that “majority comes perilously close to holding that an act of violence by a gang member is gang-related by default”)

18 U.S.C. § 2339B, Providing Material Support to Terrorist Organizations

United States v. Dhirane, 896 F.3d 295 (4th Cir. July 16, 2018) (Niemeyer, J.) (E.D. Va.) (evidence was sufficient to prove that defendants provided money to al-Shabaab, a designated foreign terrorist organization, where district court, in bench trial, found that defendants were “ardent supporters” of the organization, collected money on its behalf, and sent that money to individuals who used it to support the organization’s activities)

33 U.S.C. § 1908, Act to Prevent Pollution from Ships

United States v. Oceanic Illsabe Limited, 889 F.3d 178 (4th Cir. May 7, 2018) (King, J.) (E.D.N.C.) (in case charging corporate shipping concerns with environmental crimes, finding evidence sufficient to support convictions because ship engineers who illegally dumped pollutants and falsified ship’s oil record book were employees of the companies who were acting within the scope of their employment with an intent to benefit the corporations)

FDFCDC 11 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 4

II. FOURTH AMENDMENT ISSUES

Border Searches

* United States v. Kolsuz, 890 F.3d 133 (4th Cir. May 18, 2018) (Harris, J.; Wilkinson, J, concurring) (E.D. Va.) (holding that forensic search of phone seized from outbound airplane passenger was not a routine border search, and thus required some level of individualized suspicion, and holding that defendant’s arrest did not transform forensic search months later at a distant site into search incident to arrest; concluding that suppression of evidence related to smuggling recovered from phone was not necessary because agents acted in good faith) (N.B.: panel expressly declined to decide whether, or under what circumstances, some level of suspicion greater than reasonable suspicion (such as probable cause) might be required to conduct a nonroutine border search)

Consent

United States v. Azua-Rinconada, 914 F.3d 319 (4th Cir. Jan. 28, 2019) (Niemeyer, J.) (E.D.N.C.) (finding that defendant’s fiancee’s consent to allow officers into home was voluntary where, although one officer stated “open the door or we’re going to knock it down,” body-cam footage and fiancee’s testimony demonstrated that encounter was voluntary and that officers had valid consent to enter home)

Franks Hearings

United States v. Dhirane, 896 F.3d 295 (4th Cir. July 16, 2018) (Niemeyer, J.) (E.D. Va.) (Foreign Intelligence Surveillance Act (FISA) procedure that allows district court to review government’s surveillance evidence in camera and ex parte does not violate Fourth Amendment even though it denies defense counsel the ability to review government’s warrant application for possibility of Franks hearing over validity of warrant)

Fruit of the Poisonous Tree

! United States v. Terry, 909 F.3d 716 (4th Cir. Nov. 30, 2018) (Gregory, J.) (S.D. W. Va.) (reversing denial of suppression motion where stop of car only two days after warrantless attachment of GPS tracking device resulted from “flagrant” constitutional violation)

Reasonable Suspicion

United States v. Kehoe, 893 F.3d 232 (4th Cir. June 20, 2018) (Motz, J.) (E.D. Va.) (officers had reasonable suspicion to seize defendant for possession of a concealed firearm while drinking in a bar based on two 911 calls, bartender’s description of defendant, and officers’ past experience with bar; finding, however, that district court’s “repeated reference” to defendant’s race (he was sole white male among predominately black patrons of bar) during suppression hearing “was clearly improper”)

FDFCDC 12 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 5

Standing

! United States v. Terry, 909 F.3d 716 (4th Cir. Nov. 30, 2018) (Gregory, J.) (S.D. W. Va.) (defendant had standing to contest stop of car to which GPS tracking device had been attached when, although he was passenger at time of stop, he was driving car at time tracking device had been attached, because stop of car resulted from illegal attachment of device)

Warrants

United States v. Thomas, 908 F.3d 68 (4th Cir. Nov. 8, 2018) (Harris, J.) (W.D. Va.) (although warrant affidavit was deficient on its face, good faith exception applied where officer had inadvertently omitted from affidavit uncontroverted facts known to him, and officer had objectively reasonable belief in existence of probable cause)

! United States v. Lyles, 910 F.3d 787 (4th Cir. Dec. 14, 2018) (Wilkinson, J.) (D. Md.) (after trash pull produced three plant stems and three empty packs of rolling papers, police obtained warrant to search any persons within home and seize essentially anything inside; holding that “astonishingly broad warrant – resembling a general warrant” was not supported by probable cause as such meager residue did not indicate marijuana possession or distribution by the homeowner, and it empowered police to seize items not related to marijuana possession; further holding that good faith exception did not apply, despite “subjective good faith”of officers, given clear lack of probable cause to support warrant)

! United States v. Pratt, 915 F.3d 266 (4th Cir. Feb. 8, 2019) (Diaz, J.) (D.S.C.) (extended seizure of defendant’s cell phone on suspicion it contained child pornography was unreasonable where police waited 31 days to obtain a warrant with no justification for delay; noting that phone itself, as opposed to digital files within phone, did not have independent evidentiary value, so police could have removed or copied files and returned phone)

United States v. Seerden, 916 F.3d 360 (4th Cir. Feb. 20, 2019) (Thacker, J.) (E.D. Va.) (as to claim that search of phone belonging to Navy SEAL violated Military Rules of Evidence, holding that although military rules can add context to reasonableness analysis, it is Fourth Amendment that controls admissibility of evidence in civilian federal courts; concluding that even if search, technically in violation of military procedures, violated Fourth Amendment, investigators acted in good faith reliance on apparently valid military search warrant, making evidence obtained via their search (which served as the basis for a later federal warrant) admissible in civilian trial)

United States v. Young, 916 F.3d 368 (4th Cir. Feb. 21, 2019) (Agee, J.) (E.D. Va.) (police officers did not exceed the scope of a warrant authorizing seizure of items related to ISIL/ISIS and “other designated terrorist groups” when officers seized items related to Nazis, as Nazis engaged in “terrorism,” as broadly defined, and some seized items concerned ties between Nazism and radical Islamism)

FDFCDC 13 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 6

III. FIFTH AMENDMENT ISSUES (Pre-trial and Trial)

Double Jeopardy

United States v. Whyte, 918 F.3d 339 (4th Cir. Mar. 12, 2019) (Agee, J.) (W.D. Va.) (in prosecution for false claims and major fraud involving fraudulent requests for payment on military equipment contract, finding by jury in civil False Claims Act of no fraud did not collaterally estop criminal prosecution where government did not intervene in civil suit)

Due Process

United States v. Saint Louis, 889 F.3d 145 (4th Cir. May 2, 2018) (Diaz, J.) (E.D. Va.) (finding that witness’s out-of-court identification of defendant, made three months after kidnapping offense, was not unduly suggestive where defendant’s picture in police photo array was taken from a rap group poster that witness had seen during kidnapping; noting that police did adequate job in making that picture look like others in array; holding that even if process was suggestive, the identification was not unreliable)

United States v. Chavez, 894 F.3d 593 (4th Cir. July 2, 2018) (Wilkinson, J.) (E.D. Va.) (in racketeering murder case, evidence concerning cooperating witness’s immigration proceedings was not material under Brady/Napue in light of extensive physical, forensic, and eyewitness testimony concerning murder, and defendants had opportunity at trial to cross-examine witness on his immigration proceedings, including on letter the FBI submitted in support of witness’s green card application)

United States v. Guzman-Velasquez, ___ F.3d ____, 2019 WL 1387557 (4th Cir. Mar. 28, 2019) (Motz, J.) (E.D. Va.) (in illegal reentry case, 8 U.S.C. 1326, defendant was not denied due process when there was no meaningful review provided for denial of defendant’s application for temporary protected status (TPS); collateral attack provision in § 1326(d) is limited by its plain language to challenges to prior removal orders, which defendant did not challenge)

Self-Incrimination

United States v. Bell, 901 F.3d 455 (4th Cir. Aug. 28, 2018) (Niemeyer, J.; Wynn, J., dissenting) (D. Md.) (during execution of search warrant, after defendant had been seated near his wife, officer asked the wife (owner of the home) if there were any weapons present, and defendant interjected that there was a gun; holding that defendant was not subjected to interrogation or its functional equivalent because question was directed to wife even if defendant was within earshot and it was possible he would answer) (dissenting judge argued that court must view interrogation from perspective of suspect, who reasonably could have believed that question was directed to him)

! United States v. Abdallah, 911 F.3d 201 (4th Cir. Dec. 18, 2018) (Wynn, J.) (E.D. Va.) (defendant unambiguously invoked right to remain silent by stating he “wasn’t going to say anything at all”; court cannot look to circumstances after otherwise clear invocation in order to create ambiguity in invocation (although it can look to circumstances preceding invocation); it does not

FDFCDC 14 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 7

matter that defendant invoked prior to completion of Miranda warnings because there is no requirement that invocation of right to remain silent must be “knowing and intelligent,” like a waiver of right must be; further holding that police did not scrupulously honor invocation, rendering later waiver invalid; finally holding that error in admitting statements was not harmless in light of “particularly damaging nature of confessions”)

United States v. Azua-Rinconada, 914 F.3d 319 (4th Cir. Jan. 28, 2019) (Niemeyer, J.) (E.D.N.C.) (totality of circumstances supported conclusion that defendant was not in custody when questioned in his residence where he chose his seat in livingroom, tone of interaction (which was captured on body cam) was conversational, and defendant was permitted to leave livingroom, unaccompanied, to change clothes before going outside with officer to be fingerprinted)

IV. SIXTH AMENDMENT ISSUES (Pre-trial and Trial)

Confrontation

United States v. Smith, ___ F.3d ____, 2019 WL 1372326 (4th Cir. Mar. 27, 2019) (Richardson, J.) (D. Md.) (in trial of members of the violent Baltimore prison and street gang Black Guerilla Family, expert’s testimony about meaning of gang members’ coded language did not violate defendants’ constitutional right to confrontation where expert relied on hearsay as part of proper expert opinion, and was not simply relaying statements by non-testifying co-conspirators into record)

Counsel / Self-Representation

United States v. Cohen, 888 F.3d 667 (4th Cir. Apr. 25, 2018) (King, J.) (D. Md.) (affirming district court’s denial of appointed counsel to defendant who had represented himself throughout proceedings but requested counsel in the midst of sentencing, finding that request was “very tardy,” and that, once waived, the right to counsel is no longer unqualified)

Trial by Impartial Jurors

United States v. Birchette, 908 F.3d 50 (4th Cir. Nov. 7, 2018) (Wilkinson, J.) (E.D. Va.) (where juror approached defense counsel after trial to say that another juror made comments related to race during deliberations (“The two of you [holdouts who were same race as defendant] are only doing this because of race” and “It’s a race thing for you”), holding that district court did not abuse its discretion in finding that defendant had not shown “good cause” to obtain leave, required under local rules, to interview jurors concerning presence of racial animus during deliberations)

FDFCDC 15 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 8

V. OTHER PRE-TRIAL ISSUES

Combatant Immunity

United States v. Hamidullin, 888 F.3d 62 (4th Cir. Apr. 18, 2018) (Floyd, J.; King, J., dissenting) (E.D. Va.) (affirming denial of motion to dismiss indictment because defendant, who was former Russian army officer affiliated with the Taliban, was not entitled to combatant immunity under either Third Geneva Convention or common law combatant immunity defense of public authority)

Pre-trial Restraint of Assets

United States v. Miller, 911 F.3d 229 (4th Cir. Dec. 20, 2018) (Duncan, J.) (E.D. Va.) (on interlocutory appeal from pretrial order denying motion to release seized assets (specifically, two pieces of real property), ruling that government had probable cause to find that defendant used fraudulently obtained and laundered funds to pay for mortgage, taxes, and improvements)

Severance (Fed. R. Crim. P. 14)

United States v. Chavez, 894 F.3d 593 (4th Cir. July 2, 2018) (Wilkinson, J.) (E.D. Va.) (district court did not abuse discretion in refusing to sever trials of co-defendants in racketeering case where defendants’ strategies were not entirely antagonistic; finding defenses not inconsistent even though each were disclaiming responsibility for murder, because none specifically pointed the finger at a co-defendant; stating that standard is whether believing one defense requires disbelieving another)

VI. TRIAL ISSUES1

Evidence

Confrontation

See Sixth Amendment, supra

Federal Rules of Evidence 401 et seq.

United States v. Young, 916 F.3d 368 (4th Cir. Feb. 21, 2019) (Agee, J.) (E.D. Va.) (in trial for attempting to provide material support to terrorist organization, district court did not abuse its discretion under FRE 401 and 403 in admitting materials related to Nazis and their ties to radical Islamism, because they were relevant to whether defendant had predisposition to support terrorist organization in light of interest in groups with radical anti-Semitic viewpoints, and evidence was not unfairly prejudicial, especially given court’s cautionary instruction)

1 Subsections are arranged by stage of trial.

FDFCDC 16 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 9

Federal Rules of Evidence 701 et seq.

United States v. Young, 916 F.3d 368 (4th Cir. Feb. 21, 2019) (Agee, J.) (E.D. Va.) (district court did not abuse its discretion in admitting expert testimony under FRE 702 about various extremist movements and neo-Nazis; affirming conclusion that witness’s academic credentials and social sciences-based research made him qualified to testify; noting that court did not need to hold a Daubert hearing before admitting testimony if court’s review of credentials convinces court that the witness is qualified; finally holding that expert testimony was relevant in material-support-to- terrorists trial because it provided context and historical background for defendant’s predisposition to support radical groups)

United States v. Smith, ___ F.3d ____, 2019 WL 1372326 (4th Cir. Mar. 27, 2019) (Richardson, J.) (D. Md.) (in trial of members of the violent Baltimore prison and street gang Black Guerilla Family, finding no error in district court’s qualification of agent as expert, based on his years of investigating drug and gang activity, in coded jargon used in gang member communications; rejecting as “novel” defense contention that factual context on which expert bases opinion must come from independent evidence, not from expert’s own observations, whether made before or during trial)

Federal Rules of Evidence 801 et seq.

United States v. Davis, 918 F.3d 397 (4th Cir. Mar. 19, 2019) (Niemeyer, J.) (W.D.N.C.) (on plain error review, finding that district court did not err in admitting out-of-court statement of informant, that she obtained drugs from defendant, through testimony of police officer who had used informant to make controlled buy of drugs from defendant, because informant’s statement was not offered for its truth but rather to explain officer’s decision to use informant for buy; i.e., statement was not hearsay in first instance)

Federal Rules of Evidence 901 et seq.

United States v. Davis, 918 F.3d 397 (4th Cir. Mar. 19, 2019) (Niemeyer, J.) (W.D.N.C.) (district court did not abuse discretion in admitting photographs taken by police officer of text messages on informant’s phone even though officer, while authenticating photographs, did not link contact name on informant’s phone with phone number linked to defendant, where there was ample contextual evidence that person with whom informant was texting was defendant; similarly, district did not abuse discretion in admitting recording of telephone call between informant and defendant when officer testified that he recognized the voices on the recording as being those of the informant and defendants)

Sufficiency of Evidence

See Offenses, supra

FDFCDC 17 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 10

Jurors

United States v. Smith, ___ F.3d ____, 2019 WL 1372326 (4th Cir. Mar. 27, 2019) (Richardson, J.) (D. Md.) (in trial of members of the violent Baltimore prison and street gang Black Guerilla Family, district court did not abuse discretion in its questioning of jurors for bias after one juror expressed fear of retaliation in light of testimony about gang’s violent acts and defendant’s knowledge, gained from jury selection, of information about that juror’s husband’s exact employment location)

Jury Instructions

United States v. Camara, 908 F.3d 41 (4th Cir. Nov. 6, 2018) (Harris, J.) (E.D. Va.) (in case involving conspiracy to acquire and resell luxury cars where jury asked whether it had to agree that defendant was conspiring with one specific person or conspiring in general, and court instructed that “the government has to prove specifically that the defendant was conspiring with Ray or others known or unknown co-conspirators,” that instruction did not violate Fifth Amendment by constructively amending indictment to broaden it; nor did the instruction violate Sixth Amendment’s venue requirement by permitting jury to find defendant guilty of crime not committed within district)

VII. PLEA ISSUES

Entry of Guilty Plea (Fed. R. Crim P. 11)

United States v. Lockhart, 917 F.3d 259 (4th Cir. Feb. 27, 2019) (Keenan, J.; Gregory, J., concurring in judgment; Floyd, J., concurring in judgment) (W.D.N.C.) (on plain error review in case in which defendant pled without plea agreement to single count of possession of firearm by convicted felon, he was advised at plea hearing that statutory maximum was ten years, and then was sentenced to fifteen-year mandatory minimum as armed career criminal, finding that defendant did not establish reasonable probability that he would not have pled guilty if he had been advised of correct penalties beforehand) (N.B.: in light of all three panel members’ criticism of United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009), which compelled the result in this case, appellate defense counsel has petitioned for rehearing en banc; the Court has directed a response by the government to the petition)

FDFCDC 18 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 11

Plea Agreements

! United States v. Edgell, 914 F.3d 281 (4th Cir. Jan. 25, 2019) (Harris, J.) (N.D. W. Va.) (on plain error review, holding that government’s sharing with probation office of post-plea lab test results that led to higher guideline range did not breach plea agreement in which parties had stipulated to drug type and quantity; further holding, however, that government did breach plea agreement when it failed to argue for sentence consistent with range that resulted from stipulation; and vacating sentence and remanding for resentencing before different judge)

VIII. SENTENCING ISSUES

Constitutional Challenges

United States v. Chavez, 894 F.3d 593 (4th Cir. July 2, 2018) (Wilkinson, J.) (E.D. Va.) (life sentences for 18-year-old and 19-year-old defendants convicted of murder in aid of racketeering did not violate Eighth Amendment)

Sentencing Statutes

18 U.S.C. § 924(e), Armed Career Criminal Act (ACCA)

! United States v. Hodge, 902 F.3d 420 (4th Cir. Aug. 22, 2018) (Gregory, C.J.) (M.D.N.C.) (Maryland reckless endangerment is not a predicate offense under the ACCA because force clause requires higher degree of mens rea than recklessness)

United States v. Bell, 901 F.3d 455 (4th Cir. Aug. 28, 2018) (Niemeyer, J.; Wynn, J., dissenting) (D. Md.) (Maryland robbery with a dangerous or deadly weapon qualifies as an ACCA predicate under the force clause because offense requires actual use of weapon to inflict or threaten harm and taking of property from the person of another) (dissenting judge argued that state cases permit conviction for threats to property, which would disqualify statute as an ACCA predicate)

! United States v. Jones, 914 F.3d 893 (4th Cir. Feb. 4, 2019) (King, J.) (D.S.C.) (South Carolina offense of assaulting, beating, or wounding law enforcement officer while resisting arrest is indivisible, and does not categorically qualify as a violent felony because it can be committed by means of assault, which includes an attempted touching in a rude or angry manner, or an attempted spitting at someone, and thus does not categorically have an element requiring the use, attempted use, or threatened use of force)

18 U.S.C. § 3553(e), Substantial Assistance

United States v. Under Seal, 902 F.3d 412 (4th Cir. Aug. 22, 2018) (Traxler, J.) (D. Md.) (where defendant testified at co-conspirators’ trial as part of cooperation agreement, but did not testify truthfully and fully in the government’s view, government was not required under terms of agreement to hold defendant in breach of agreement before declining to move for sentence reduction;

FDFCDC 19 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 12 rather, government could waive breach of agreement, elect to keep plea agreement in place, and exercise right under agreement to refuse to move for reduction)

18 U.S.C. § 3559(c), Federal Three Strikes Statute

United States v. Johnson, 915 F.3d 223 (4th Cir. Feb. 6, 2019) (Wilkinson, J.) (W.D. Va.) (New York third-degree robbery qualifies as robbery “described in” 18 U.S.C. §§ 2111, 2113, or 2118, and thus was properly considered as “serious violent felony” that constituted a strike)

Sentencing Guidelines

U.S.S.G. § 2B1.1, Fraud

United States v. Carver, 916 F.3d 398 (4th Cir. Feb. 26, 2019) (Wilkinson, J.) (D.S.C.) (in case involving access device fraud, holding that device need not be functional to count for purposes of calculating loss amount of $500 per device; disagreeing with reasoning of Ninth Circuit in United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2012) (concluding that device that cannot be used to get money is not an “access device”), in light of full statutory definition of “unauthorized access device,” which includes expired, revoked, or cancelled card that cannot be used to obtain money)

U.S.S.G. § 2H1.1, Offenses Involving Individual Rights

United States v. Slager, 912 F.3d 224 (4th Cir. Jan. 8, 2019) (Wynn, J.) (D.S.C.) (because sentencing guideline for police officer convicted of depriving another of civil rights under color of law required district court to cross-reference underlying offense, court did not err in referring to second-degree murder guideline, instead of voluntary manslaughter, where court reasonably found that evidence showed that officer acted intentionally and not in the heat of passion or in the midst of a quarrel)

U.S.S.G. § 2K2.1 et seq., Firearms Offenses

United States v. Allen, 909 F.3d 671 (4th Cir. Nov. 28, 2018) (Keenan, J.) (W.D.N.C.) (conviction under 21 U.S.C. § 843(b), use of communication facility to facilitate possession of drugs with intent to distribute, qualifies as “controlled substance offense” for purpose of increasing offense level based on prior conviction)

U.S.S.G. § 2M5.3, Providing Material Support to Terrorist Organizations

United States v. Dhirane, 896 F.3d 295 (4th Cir. July 16, 2018) (Niemeyer, J.) (E.D. Va.) (district court’s finding that defendants’ financial support of al-Shabaab, a designated foreign terrorist organization, was directed at and designed to support the organization’s military operations generally was sufficient to affirm application of two-level enhancement requiring showing that defendants had intent or knowledge that their material support would be used in commission of violence; enhancement did not require finding that support was linked to specific violent act)

FDFCDC 20 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 13

U.S.S.G. § 3A1.1 et seq., Victim Related Adjustments

United States v. Shephard, 892 F.3d 666 (4th Cir. June 15, 2018) (Diaz, J.; Wynn, J., dissenting) (W.D.N.C.) (in “foreign sweepstakes” wire fraud scheme, process of “reloading” – i.e., raising purported prize levels and inducing victims who had already fallen for scheme to send more money – supported vulnerable victim enhancement, because repeated targeting of victim is evidence that defendant knew that the person was “particularly susceptible to the criminal conduct”; indeed, these victims’ previous gullibility was the very reason they were targeted by members of the conspiracy who were known as “loaders”; suggesting that merely asking previous victim for more money, standing alone, might not support enhancement) (dissenting judge would have required district court to make fuller explanation for enhancement, including findings as to circumstances of specific victims, rather than a class of victims)

U.S.S.G. § 4A1.1 et seq., Computation of Criminal History

United States v. Brown, 909 F.3d 698 (4th Cir. Nov. 29, 2018) (Diaz, J.) (E.D. Va.) (probation officer properly added two points to defendant’s criminal history score for committing federal offense “while under a criminal justice sentence,” U.S.S.G. § 4A1.1(d), where defendant committed offense while on “good behavior” imposed as condition of Virginia suspended sentence, because “good behavior” is “‘the functional equivalent to a term of unsupervised probation’”)

United States v. Hawley, ___ F.3d _____, 2019 WL 1341826 (4th Cir. Mar. 26, 2019) (Wynn, J.) (E.D.N.C) (finding no error in counting as criminal history defendant’s uncounseled misdemeanor conviction where defendant had validly waived his right to counsel in that prosecution and was sentenced to 30 days of imprisonment)

U.S.S.G. § 4B1.1 et seq., Career Offenders and Other Recidivists

! United States v. Fluker, 891 F.3d 541 (4th Cir. June 5, 2018) (Agee, J.) (W.D. Va.) (holding that Georgia robbery was broader than generic robbery because it can be committed by “sudden snatching”)

United States v. Hammond, 912 F.3d 658 (4th Cir. Jan. 4, 2019) (Keenan, J.) (W.D.N.C.) (because “forcible stealing” is element of New York robbery, that offense qualifies as “crime of violence” under “force clause” of Guidelines definition)

! United States v. Simmons, 917 F.3d 312 (4th Cir. Mar. 4, 2019) (Gregory, J.) (W.D.N.C.) (ruling, in context of supervised release revocation and on plain error review, that North Carolina assault with a deadly weapon on a government official is not “crime of violence” under current definition in § 4B1.2 as it is broader than enumerated offense of aggravated assault and does not satisfy force clause)

FDFCDC 21 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 14

United States v. Mills, 917 F.3d 324 (4th Cir. Mar. 5, 2019) (Niemeyer, J.) (W.D.N.C.) (suggesting, without deciding, that North Carolina assault with a deadly weapon inflicting serious injury may not be “crime of violence” under current definition in § 4B1.2)

U.S.S.G. § 5G1.3, Imposition of Sentence on Defendant Subject to Undischarged or Anticipated State Sentence

United States v. Lynn, 912 F.3d 212 (4th Cir. Jan. 7, 2019) (Jones, J.; Floyd, J., dissenting in part) (M.D.N.C.) (where defendant in felon-in-possession case faced anticipated state sentence, district court did not abuse its discretion in declining to run federal sentence concurrently with state sentence because it lacked sufficient information about length of state sentence; noting that state court could take federal sentence into account and defendant could ask BOP to designate state prison as place of confinement) (dissenting judge argued that district court abdicated its duty to accept or reject guideline’s recommendation for concurrent sentenced by “mak[ing] no decision at all”)

U.S.S.G. § 5K1.1, Substantial Assistance

U.S.S.G. § 5K2.0 et seq., Grounds for Departure

United States v. Moore, 918 F.3d 368 (4th Cir. Mar. 14, 2019) (Floyd, J.) (D.S.C.) (on appeal by government, holding that sentencing court may not reduce mandatory minimum sentence by departing down to account length of discharged state sentence for related conduct pursuant to U.S.S.G. § 5K2.23)

Sentencing Procedure

United States v. Harris, 890 F.3d 480 (4th Cir. May 21, 2018) (Gregory, C.J.) (D.S.C.) (affirming sentence but remanding to district court with instructions to permit defendant to submit sentencing memorandum under seal, with redacted version available to public, because memorandum contained defendant’s family members’ names and photos; finding that public interest in open access to proceedings would not be undermined by minimal redactions to protect privacy interests of family members)

Restitution and Forfeiture

United States v. Miller, 911 F.3d 229 (4th Cir. Dec. 20, 2018) (Duncan, J.) (E.D. Va.) (on interlocutory appeal from pretrial order denying motion to release seized assets (specifically, two

FDFCDC 22 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 15

pieces of real property), ruling that government had probable cause to find that defendant used fraudulently obtained and laundered funds to pay for mortgage, taxes, and improvements)

United States v. Dillard, 891 F.3d 151 (4th Cir. May 30, 2018) (Agee, J.) (W.D. Va.) (on appeal by government of district court’s order denying restitution to non-contact victims in child pornography case, vacating and remanding where district court misapplied Paroline v. United States, 572 U.S. 464 (2014), by requiring more evidence of victims’ losses and previous amounts recovered, and more precision in government’s apportionment formula, than Paroline itself required) (N.B.: the court declined to opine on whether the government’s proposed methodology, or any other method, was consistent with Paroline or 18 U.S.C. § 2259, because district court had rejected restitution entirely)

! United States v. Steele, 897 F.3d 606 (4th Cir. July 27, 2018) (Gregory, C.J.) (W.D.N.C.) (where defendant stole video game discs, district court erred in accepting victim’s unsupported loss estimate of replacement costs instead of fair market value of stolen discs; noting that “fair market value generally provides the best measure of value to satisfy the MVRA,” and holding that government must put forth more evidence than victim’s loss estimate alone)

! United States v. Chittenden, 896 F.3d 633 (4th Cir. July 25, 2018) (Gregory, J.) (E.D. Va.) (on remand from the Supreme Court in light of Honeycutt v. United States, 137 S. Ct. 1626 (2017), which limited forfeiture under 21 U.S.C. § 853(a)(1) to property the defendant himself actually acquired as part of the crime, holding here that the same rule applies to the general forfeiture statute, 18 U.S.C. § 982(a)(2), because the text of the latter mirrors § 853; thus, cannot forfeit substitute (untainted) assets from defendant who did not obtain tainted assets; overrules United States v. McHan, 101 F.3d 1027 (4th Cir. 1996), which had extended liability (and forfeitability) to co- conspirator proceeds)

Supervised Release

United States v. Sanchez, 891 F.3d 535 (4th Cir. June 5, 2018) (Wilkinson, J.) (E.D. Va.) (supervised release revocation proceeding is not proper forum for challenging validity of original sentence – here, the constitutionality post-Johnson of defendant’s ACCA sentence – and district court does not have jurisdiction to consider challenge)

United States v. Gibbs,897 F.3d 199 (4th Cir. July 16, 2018) (Niemeyer, J.; Gregory, C.J., dissenting) (E.D.N.C.) (affirming 24-month sentence upon revocation of supervised release – the maximum term available – over defendant’s arguments that district court had failed to adequately consider his arguments for a shorter sentence; finding sufficient the court’s statement of “All right” when counsel specifically asked the court to consider those arguments) (dissenting judge argued that precedent requires sentencing court to state on the record its reasons for rejecting nonfrivolous arguments)

FDFCDC 23 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 16

Reasonableness of Sentence

! United States v. Ross, 912 F.3d 740 (4th Cir. Jan. 14, 2019) (Gregory, J.) (D. Md.) (in child pornography case where guideline range was 188 to 235 months and court imposed government’s requested sentence of 120 months consecutive to state sentence for child sex offense rather than defendant’s requested sentence of 60 months concurrent, finding sentence procedurally unreasonable because court’s explanation for sentence was insufficient and failed to address non-frivolous arguments in mitigation; also finding court failed to explain why it was imposing special conditions of supervised release)

United States v. Davis, 918 F.3d 397 (4th Cir. Mar. 19, 2019) (Niemeyer, J.) (W.D.N.C.) (in case where defendant was acquitted of drug conspiracy charge but probation used trial testimony of co-conspirators to increase quantity of drugs attributable to defendant for sentencing, finding that district court sufficiently explained why it accepted presentence report’s finding of drug quantity)

Resentencing After Appeal or Grant of Other Post-Conviction Relief

United States v. Harris, 890 F.3d 480 (4th Cir. May 21, 2018) (Gregory, J.) (D.S.C.) (affirming 20-year sentence for marijuana conspiracy, imposed after identical sentence was vacated due to Apprendi error, and despite significant drop in guideline range, where district court did not merely “reinstate” prior sentence, but instead considered defendant’s individualized circumstances, including post-sentencing rehabilitation and mitigation evidence)

! United States v. Hodge, 902 F.3d 420 (4th Cir. Aug. 22, 2018) (Gregory, J.) (M.D.N.C.) (at a resentencing after ACCA predicate used in original sentence has been struck, government cannot rely on a different predicate that it did not rely on at original sentencing because defendant has a right to notice of prior convictions the government will rely on to prove the enhancement)

IX. APPELLATE ISSUES

Appeal Waivers

United States v. Cohen, 888 F.3d 667 (4th Cir. Apr. 25, 2018) (King, J.) (D. Md.) (holding that Apprendi claim was not covered by appeal waiver in plea agreement, because violation of Apprendi rule would result in sentence in excess of statutory maximum, but deciding, on plain error

FDFCDC 24 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 17

review, that even assuming Apprendi violation, defendant’s substantial rights were not affected because he received sentence far below correct statutory maximum)

United States v. McCoy, 895 F.3d 358 (4th Cir. July 13, 2018) (Diaz, J.) (W.D.N.C.) (where defendant agreed to waive his right to appeal his conviction and “whatever sentence is imposed” except on basis of ineffective assistance of counsel or prosecutorial misconduct, joining other circuits in deciding that challenge to sufficiency of factual basis supporting plea fell outside scope of waiver because challenge goes to validity of plea itself)

Timeliness of Appeal

United States v. Chaney, 911 F.3d 222 (4th Cir. Dec. 19, 2018) (Niemeyer, J.; Gregory, J, dissenting) (W.D.N.C.) (because judgment amending sentence that is entered after successful § 2255 motion is part of defendant’s criminal case (although it also completes a civil case), defendant must note appeal within 14 days, pursuant to Fed. R. App. P 4(b))

Reviewability of Issues

! United States v. Fluker, 891 F.3d 541 (4th Cir. June 5, 2018) (Agee, J.) (W.D. Va.) (finding appeal was not moot, even though defendant had completed serving Virginia federal sentence under appeal, because he was serving a Florida federal sentence that had been ordered to run consecutively to Virginia sentence, such that if Virginia sentence was reduced after remand, defendant’s release date on Florida sentence would come sooner, creating a cognizable interest in outcome of appeal)

United States v. Ketter, 908 F.3d 61 (4th Cir. Nov. 8, 2018) (Motz, J.) (D.S.C) (joining other circuits in finding that appellate challenge to term of imprisonment is not moot where defendant was still serving term of supervised release, because imprisonment and supervised release are components of unitary sentence with interdependent relationship; should defendant prevail on appeal, district court could grant relief for over-served term of imprisonment in form of shorter period of supervised release)

Publication of Opinions

United States v. Gibbs, 905 F.3d 768 (4th Cir. Oct. 5, 2018) (Wynn, J., voting to redesignate panel opinion as unpublished or vacate it as moot) (after petition for rehearing en banc from panel decision,897 F.3d 199 (4th Cir. July 16, 2018), had been denied, defendant was released from prison; Judge Wynn argued that court should vacate panel opinion as moot to prevent an unreviewable case from spawning consequences for future cases; further arguing that panel opinion was either an application of prior precedent, and thus not worth publishing, or a deviation from precedent, and therefore not binding; finally noting that court’s practice here of issuing order denying rehearing in expedited fashion instead of waiting on separate opinions has the salutary effect of not giving a judge a “pocket veto” by taking so long to write an opinion that the case becomes moot before en banc court can issue decision)

FDFCDC 25 Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2018, through March 31, 2019 Page 18

Rehearing Petitions

United States v. Gibbs, 905 F.3d 768 (4th Cir. Oct. 5, 2018) (Wynn, J., voting to redesignate panel opinion as unpublished or vacate it as moot) (noting that court’s practice here of issuing order denying rehearing in expedited fashion instead of waiting on separate opinions has salutary effect of not giving any judge a “pocket veto” by taking so long to write an opinion that the case becomes moot before en banc court can issue decision)

Ineffective Assistance of Counsel on Appeal

! United States v. Allmendinger, 894 F.3d 121 (4th Cir. June 26, 2018) (Motz, J.) (E.D. Va.) (appellate counsel was ineffective in failing to raise issue (here, one with near-certain chance of success, merger problem with money laundering conviction) that was clearly stronger than issues counsel did raise; counsel’s ineffectiveness prejudiced defendant because court of appeals likely would have reversed money laundering convictions)

X. POST-CONVICTION ISSUES

18 U.S.C. § 3582, Modification of Sentence of Imprisonment After Imposition

United States v. Martin, 916 F.3d 389 (4th Cir. Feb. 26, 2019) (Gregory, J.) (D. Md.) (when ruling on a motion for reduction of sentence under § 3582(c)(2) where defendant makes substantial arguments in mitigation, court must give individualized explanation for denying motion, whether in part or in whole)

28 U.S.C. § 2241, 2255, et seq.

United States v. Morris, 917 F.3d 818 (4th Cir. Mar. 8, 2019) (Harris, J.) (E.D. Va.) (finding that defense counsel was not ineffective for failing to argue at sentencing that Virginia attempted abduction (kidnapping) did not qualify as crime of violence under 2013 version of § 4B1.2’s definition of that term where, even though there was relevant authority suggesting that Virginia’s offense was broader than generic kidnapping, other authority made clear that offense would qualify under residual clause of definition)

Lester v. Flournoy, 909 F.3d 708 (4th Cir. Nov. 30. 2018) (Diaz, J.) (E.D. Va.) (defendant sentenced as career offender under mandatory Sentencing Guidelines who (1) has already filed one unsuccessful § 2255 challenge to conviction or sentence and (2) cannot meet requirements for filing second or successive § 2255 motion in § 2255(h) may use § 2241 motion, via savings clause of § 2255(e), to challenge career offender designation based on subsequent change in law that is retroactively applicable)

FDFCDC 26 THE ETHICS OF JOINT REPRESENTATION AND JOINT DEFENSE AGREEMENTS

Thomas E. Spahn

DISCUSSION OVERVIEW

Note: A .pdf file containing Mr. Spahn’s thorough analyses of the hypotheticals will be e-mailed to program attendees at the conclusion of this session and will also be available at the following link: http://vae.fd.org/content/training.

Hypo 1: Identifying joint representation

Hypo 2: Confidentiality duties in a joint representation

Hypo 3: Power to waive the privilege in a joint representation

Hypo 4: Effect of adversity among jointly represented clients

Hypo 5: Availability of the common interest doctrine among case participants with adverse defenses

Hypo 6: Effects of later adversity among common interest agreement participants

FDFCDC 27 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Frank Dunham Federal Criminal Defense Conference Charlottesville, VA April 11-12, 2019

THE ETHICS OF JOINT REPRESENTATION AND JOINT DEFENSE AGREEMENTS

Selected Hypotheticals (adapted for criminal cases)

Thomas E. Spahn McGuireWoods LLP

FDFCDC 28 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Hypothetical 1

One of your firm’s largest corporate clients just hired you to represent it in a criminal case filed against your client and several other companies, alleging environmental crimes resulting from the improper discharge into waterways of chemicals that your client and the other companies used in their manufacturing process. You know from experience that co-defendants in cases like this never sue each other or even “point the finger” at each other, so you tell your client that you will be able to represent it in the lawsuit. Soon after speaking with this client, you received a call from one of your partners, who tells you that she has just accepted a representation of another defendant in the case.

Is your firm’s representation of these defendants a joint representation?

(A) YES

(B) NO

1 FDFCDC 29 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Hypothetical 2

For the past six months or so, you have been defending a wealthy doctor and his wife against charges that they murdered one of the doctor’s patients, who had been blackmailing him. Both of your clients have consistently and vehemently denied any involvement in the patient’s death under suspicious circumstances. A few minutes ago, the doctor called you to say that he needed to tell you something: that, n fact, he had killed his patient, but his wife had nothing to do with it and knew nothing of his involvement. This news came as a shock, because you had actually believed his denial of any wrongdoing. The doctor asked you to keep his admission to you secret from his wife.

What do you do?

(A) You must tell your other client (the wife) about the husband’s admission of guilt.

(B) You may tell your other client about the admission, but you don’t have to.

2 FDFCDC 30 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Hypothetical 3

You jointly represent two roommates charged with defrauding their landlord in tense negotiations with the prosecutor’s office. One of your clients just called to ask whether she could provide certain documents or other information to the prosecutor during an upcoming debriefing.

(a) Without the other client’s consent, may this client give the prosecutor a legal memorandum that you prepared for and sent to both of your clients

(A) YES

(B) NO

(b) Without the other client’s consent, may this client disclose to the prosecutor the substance of communications that she had with you (outside the other client’s presence).

(A) YES

(B) NO

3 FDFCDC 31 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Hypothetical 4

You previously represented two co-defendants who were convicted of fraud and ordered as part of their sentences to pay restitution, for which they are jointly and severally liable. While one of your former clients has been paying restitution in compliance with the judgment, the other has not – despite having amply means to do so. The paying client has now sued the non-paying for contribution, and filed a third-party subpoena seeking all of your files. The non-paying client has objected to the subpoena, claiming privilege protection for his unilateral communications with you and your colleagues during the joint representation.

Is the objecting former client likely to successfully assert privilege protection for the unilateral communications with you during the joint representation?

(A) YES

(B) NO

4 FDFCDC 32 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Hypothetical 5

You represent a large drug manufacturing company that has been charged by the State of California with reckless endangerment by producing a prescription drug that became badly contaminated and led to the death of many people. The state has also charged the drug distributor. Both your company and the distributor are asserting that they did not violate the law, essentially blaming each other for any possible contamination. However, you also want to cooperate with the distributor in trying to establish that the victims’ deaths were caused by something else that they ingested, not the drug.

May your client enter into an effective common interest agreement with the drug distributor, despite the direct conflict of their defenses to the criminal charges?

(A) YES

(B) NO

5 FDFCDC 33 Frank Dunham Federal Criminal Defense Conference McGuireWoods LLP The Ethics of Joint Representation and Joint Defense T. Spahn (4/11-12/19) Agreements Selected Hypotheticals

Hypothetical 6

You represent one of several defendants in high-stakes commercial litigation, all of whom entered into a “common interest” agreement when the case began. Unfortunately, there has been a serious falling-out among the defendants, and you and your colleagues are trying to sort out its effect.

(a) If one of the other defendants files a cross claim against your client, will it be able to use at trial any of the communications and documents that you shared with the other common interest participants under the agreement?

(A) YES

(B) NO

(b) In that situation, will the other defendants be able to access and use any private communications you had with your client, which were not shared with the other common interest participants?

(A) YES

(B) NO

(c) If one of the other defendants files a cross claim against your client, will you be able to represent your client in defending against that cross claim?

(A) YES

(B) NO

6 FDFCDC 34 USING E-VOUCHER FOR THE SERVICES YOU NEED TO REPRESENT YOUR CLIENT

Larry M. Dash

NOTES

FDFCDC 35 BUDGETING AND USE OF SERVICE PROVIDERS

WDVA/EDVA CJA/FPD Training

April 11, 2019

Presented By

Larry Dash, 4th Circuit Case Budgeting Attorney

4/2/2019 1

4/2/2019 2

WHAT WE WILL COVER TODAY

What is a Budget – When You Need One and Why What are Service Providers and Why you Should Consider Using Them Authority to Obtain Service Providers Being an Effective Advocate for your Provider Mechanics of Your Request Miscellaneous Issues

4/2/2019 3

FDFCDC 36 1 WHEN TO BUDGET

When You Anticipate Your Case Will Exceed 300 Hours of Attorney Time

When You Anticipate Your Case Will Exceed $44,400

4/2/2019 4

HOW TO BUDGET

Currently Using a Word Based Document Call me at 804-916-2177 or email me at [email protected] for an updated copy of the form Developing a Web-Based Program to be used later this year (hopefully)

4/2/2019 5

HOW TO SUBMIT YOUR BUDGET

In WDVA, will submit budget in eVoucher using the eVoucher CJA 26 Beginning May 1, 2019

In EDVA, will submit budget in eVoucher using the eVoucher CJA 26

4/2/2019 6

FDFCDC 37 2 USING EVOUCHER FOR CASE BUDGETING

eVoucher CJA 26 ONLY for Budgets I will give you specific instructions on how to file Currently working on development of eVoucher Budget Auth

4/2/2019 7

USING SERVICE PROVIDERS

Investigators Paralegals Interns

4/2/2019 8

DUTY TO INVESTIGATE

ABA Standard 4-4.1 Defense counsel’s duty to make independent investigation of the “circumstances of the case” ABA Standard 4-8.1 Defense counsel’s duty to “verify” PSR

4/2/2019 9

FDFCDC 38 3 WAYS TO USE AN INVESTIGATOR TO FURTHER YOUR CASE

Find New Leads / Evidence /Witnesses Meetings with Client Locate Assets Public / Social Media Profile Prep for Cross Examination Obtain Mitigating Evidence Reconstruction

4/2/2019 10

VOLUME OF DISCOVERY

4/2/2019 11

ORGANIZATION OF DISCOVERY

4/2/2019 12

FDFCDC 39 4 WAYS TO USE A PARALEGAL AND/OR INTERN TO FURTHER YOUR CASE Obtain Discovery / Organize, Index and Analyze Documents and Information Prepare Summaries, Outlines and Chronologies of Documents and Information Create, Update and Maintain eDiscovery Data Conduct Automated Searches of eDiscovery Draft Affidavits, Motions ,Trial Memorandum, Subpoenas, etc. Obtain Jury List and Biographical Information on Jurors Prepare Trial Notebooks, Organize and Mark Trial Exhibits Work with Experts, Consultants and Witnesses Gather and Prepare Sentencing Information Research the Law 4/2/2019 13

HOW DO I FIND AN INVESTIGATOR OR PARALEGAL

Fellow CJA Attorneys Your Panel Representative Colleges/Universities/Law Schools Professional Organizations FPD/CBA

4/2/2019 14

GUIDE TO JUDICIARY POLICY VOLUME 7, CHAPTER 3 (SEE 18 USC § 3006A(E))

$900 maximum, without prior approval (all Service Providers combined)

$2,600 maximum, with prior approval by District Court Judge (per Service Provider)

Anything above $2,600 needs Circuit Court Chief Judge approval

4/2/2019 15

FDFCDC 40 5 GUIDE TO JUDICIARY POLICY VOLUME 7A, CHAPTER 6 (SEE 18 USC § 3599(G)(2))

• $900 maximum, without prior approval (all Service Providers combined) • • $7,500 maximum, with prior approval by District Court Judge (all Service Providers combined) • • Anything above $7,500 needs Circuit Court Chief Judge approval

4/2/2019 16

EFFECTIVE REQUESTS

4/2/2019 17

PRESERVE YOUR RECORD IF YOU ARE DENIED YOUR SERVICE PROVIDER

Request Reconsideration in CM/ECF File it Ex Parte, Under Seal

4/2/2019 18

FDFCDC 41 6 EVOUCHER

• Requesting Authorization for a Service Provider

Next, click Create New Authorization.

4/2/2019 20

FDFCDC 42 7 4/2/2019 22

MISCELLANEOUS MATTERS

Standard for Voucher Review Vague Entries (Discovery Review, Research, etc.) Administrative Work Copy Costs Transcripts in Multi-Defendant Cases Hardware/Software Requests Handling eDiscovery

4/2/2019 23

CALL FOR ASSISTANCE

Larry Dash

804-916-2177

[email protected]

4/2/2019 24

FDFCDC 43 8 UNITED STATES DISTRICT COURT

NON-CAPITAL CASE FUNDING APPLICATION

District Court: Defendant: Case Name: Case Number: Defendant Number: Number of Co-Defendants:

Counsel: Hourly Rate: $ Appointment Date: Co-Counsel (if any): Hourly Rate: $ Appointment Date:

Budget #: Supplement #: Estimated Time Period Covered by this Application: From to

The answers to the following questions are for case management and budgeting purposes only and will not be binding in any respect on substantive issues to be raised in the course of litigation. IMPORTANT: Use the TAB key to move between entries.

1. Summary of the government’s allegations against your client:

2. Expected duration of the case, from counsel appointment to case termination (Explain):

3. Trial date, if set: Is this a realistic date? If not, in what time frame isSAMPLE trial likely to occur (i.e., Spring 2018)? 4. What efforts, if any, have been made to settle the case?

5. If in custody, identify where your client is incarcerated and the time/distance between this facility and your office:

6. Describe the volume and nature of discovery (provide an estimate in terms of page numbers, GB or TB size, and types of digital files):

7. If this case involves a protective order, please explain if it has provisions that will increase CJA costs:

Non-Capital Case Funding Application - 1

FDFCDC 44 8. Describe any discovery practices that may adversely affect the anticipated complexity or duration of this case (i.e., disorganized, poorly indexed, or delayed disclosure):

9. Describe any complex mental or physical health issues with your client or novel legal issues likely to arise in this case:

10. Describe any efforts to use economy of scale, efficiency, shared tasks, shared service providers (such as a discovery coordinator, objective case paralegal or investigator, etc.):

11. Please provide any additional information you believe would assist the court in determining the reasonableness of your funding request:

12. Are you requesting authorization to submit interim payments and, if so, at what frequency?

13. Are you requesting authorization to utilize associate(s)? YES NO

If YES, answer the following: A. Associate name(s):

B. Is associate an employee of lead or co-counsel’s firm or an independent contractor?

C. Requested hourly rate: [Note: The estimated hours to be spent by in-house associates on particular tasks should be included in the Requested Attorney Hours as co-counsel in Question 14 table; the estimated hours to be spent by a contract associate should be included in the table for Requested Service Providers in QuestionSAMPLE 15.] 14. Please complete the following table for the attorney hours you are requesting (including in-house associates and all hours already expended since the starting date of this budget period): REQUESTED ATTORNEY HOURS

Requested Hours Tasks Lead Co- Justification Counsel Counsel Pre-trial In-Court [Estimate time for arraignment; bail, detention, motion, sentencing, and Matters revocation hearings; and status conferences]

Non-Capital Case Funding Application - 2

FDFCDC 45 Requested Hours Tasks Lead Co- Justification Counsel Counsel Prepare for and [Estimate total time for each in-person meeting, including time for Communicate prep, waiting, meeting, and post-meeting memo prep as well as for with Client calls/letters on weekly or monthly basis; identify frequency of in- person meetings for this budget period; describe any communication challenges with client] Prepare for and [Estimate total time for each witness interview, including time for prep, Conduct Witness waiting, interview, and post-interview memo prep; describe any Interviews communication challenges with witnesses] Consult with Co- counsel, Co- defendant Counsel, AUSA, Service Providers Obtain and Review Records, including Discovery Legal Research [Estimate number of documents you expect to prepare] and Writing Trial Prep (only if [Estimate prep time in the weeks immediately preceding trial (include budget period doc review, client meetings, witness prep, etc. here rather than in the includes trial) separate categories above); identify number of likely prosecution and defense witnesses] Trial & Possible [Estimate time you will spend in and out of court while in trial] Sentencing Travel [Estimate travel time to see client or potential witnesses and travel to and from court. To request authorization for overnight travel, please see travel table below] Other (including [Describe specific tasks and estimated time for each] budget prep) Total Hours 0 0 Requested Costs Per Atty for Counsel: $0 Co-Counsel: $0 All Tasks SAMPLE

Non-Capital Case Funding Application - 3

FDFCDC 46 15. In the following table, please identify each previously authorized service provider or expert, the hours requested for that provider (in the Justification column indicate how many of the requested hours were previously authorized), and any additional service provider or expert you are requesting for this phase (attaching a copy of a CV or resume to this form):

REQUESTED SERVICE PROVIDERS (Paralegal, Contract Associate, Investigator(s), Experts)

Name and Requested Justification and Scope of Work (including justification Specialty Hours Rate Cost to exceed presumptive hourly rates) 1 $ $0.00

2 $ $0.00

3 $ $0.00

4 $ $0.00

5 $ $0.00

6 $ $0.00

7 $ $0.00

8 $ $0.00

Total Amount Requested For Service Providers: $0.00

16. Please complete the following table for any non-travel expense in excess of $500 that counsel or a service provider anticipates incurring: REQUESTEDSAMPLE NON-TRAVEL EXPENSES Expense Amount Justification Type $ $ $ $ $ $ $ Total Amount Requested for Expenses: $0.00

Non-Capital Case Funding Application - 4

FDFCDC 47 17. Please complete the following table for any travel by counsel or a service provider that occurs outside of the District or that requires overnight lodging:

REQUESTED TRAVEL TRIPS

No. No. of Traveler Destination of Purpose of Travel Nights Trips

IF ANY PORTION OF YOUR REQUEST IS BEING MADE NUNC PRO TUNC, YOU MUST COMPLETE THIS SECTION BEFORE SUBMITTING YOUR FUNDING REQUEST

NUNC PRO TUNC AUTHORIZATION

NOTE: Counsel is responsible for the oversight of expert services and funding status. Nunc pro tunc requests may be denied absent extraordinary circumstances. Justification provided must be sufficiently persuasive and detailed to overcome failure to obtain timely authorization.

Nunc Pro Tunc Date:

Justification for nunc pro tunc request:

INSTRUCTIONS: 1. Save completed fundingSAMPLE application in Word. 2. Email completed form along with the resume or CV of newly requested service providers to the Fourth Circuit Case Budgeting Attorney: Larry Dash – [email protected] 3. After he reviews it, he will give you further instructions to file the budget with the Court in CM/ECF following the District’s procedures for submission of ex parte, under seal filings. 4. Questions? Contact Larry Dash at 804-916-2177.

Non-Capital Case Funding Application - 5

FDFCDC 48 UNITED STATES DISTRICT COURT

CAPITAL CASE FUNDING APPLICATION

Defendant's Name: Case No.: Learned Counsel: Hourly Rate: Co-Counsel: Hourly Rate:

Budget #: Amendment #: Estimated Time Period Covered by this Application: From to

1. Date of indictment:

2. Brief summary of the government’s allegations against your client:

3. Date, if known, for submitting information to local U.S. Attorney relevant to decision whether to seek the death penalty:

4. Date, if known, for submitting information to Department of Justice relevant to decision whether to seek the death penalty:

5. Date, if known, for Government to file notice of whether it intends to seek the death penalty:

6. Explain whether and how any of the following client considerations are likely to affect case cost during this budget period (client's mental health or substance abuse issues; language or cultural differences with client, client'sSAMPLE family, witnesses; etc.). 7. Generally describe how often each counsel will visit the client during this budgeting period:

8. Explain whether the location of your client will significantly increase the cost of representation:

9. If this case involves a protective order, please explain if it has provisions that will increase CJA costs:

10. How much discovery has been produced on the case to date? Please provide an estimate in terms of page numbers, GB or TB count, and describe generally the type of discovery (documents, video recordings, etc.):

Capital Case Funding Application - 1

FDFCDC 49 11. Please answer the following questions regarding mitigation-related witnesses to be located and interviewed during the budget stage of this case: No. of local witnesses to be located/interviewed: No. of out-of-area witnesses to be located/interviewed: Location(s) of out-of-area witnesses:

12. Please answer the following questions regarding offense-related witnesses to be located and interviewed during this phase: No. of local witnesses to be located/interviewed: No. of out-of-area witnesses to be located/interviewed: Location(s) of out-of-area witnesses:

13. Please describe how you will divide attorney work during the budget stage of this case:

14. Please describe your efforts to coordinate with co-defendant counsel, if any, to conserve CJA costs (e.g., joint of paralegals or investigators):

15. Generally describe the out-of-court services you have performed to date:

16. Are you requesting authorization to submit interim payments and, if so, at what frequency?

17. Are you requesting authorization to utilize associate(s)? YES NO

If YES, answer the following: A. Associate name(s): B. Is associate an employee of learned or co-counsel’s firm or an independent contractor? C. Requested hourly rate: [Note: The estimated hours to be spent by in-house associates as well as contract associates should be included in the table forSAMPLE requested service providers in Question 18.] 18. Please complete the following table for the attorney hours you are requesting (including all hours already expended since the starting date of this budget period): REQUESTED ATTORNEY HOURS

Requested Tasks Hours Justification Learned Co- Counsel Counsel Prepare for and Attend In-Court Hearings

Capital Case Funding Application - 2

FDFCDC 50 Requested Tasks Hours Justification Learned Co- Counsel Counsel Prepare for and [Estimate total time for each in-person visit, including time for prep, waiting, Communicate with meeting, and post-meeting memo prep] Client Prepare for and [Estimate total time for each interview, including time for prep, waiting, Conduct Witness interview, and post-interview memo prep] Interviews Consult Service [Estimate consult time with each provider on weekly or monthly basis] Providers Review Court Record (i.e., transcripts or ECF) Review Documents and Evidence Consult Counsel (including Co- Counsel, Co-Def Counsel, Resource Counsel, AUSA) Research and Writing [List motions or other docs you expect to prepare] Travel [Also complete Travel table below] Other (including [Describe specific tasks and estimated time for each] Budget Prep) Total Hours 0 0 Requested Costs Per Atty for Learned: $0.00 Co-Counsel: $0.00 All Tasks Total Cost – Both $0.00 Counsel

19. In the following table, please identify each previously authorized service provider or expert, the hours requested for that provider (in the Justification column indicate how many of the requested hours were previously authorized), and any additional service provider or expert you are requesting for this phase (attaching a copy of a CV or resume to this form):

REQUESTED SERVICE PROVIDERS (Paralegal, In-HouseSAMPLE Associate, Contract Associate, Investigator(s), Experts)

Name and Requested Justification and Scope of Work (including justification Specialty Hours Rate Cost to exceed presumptive hourly rates) 1 $ $0.00

2 $ $0.00

3 $ $0.00

4 $ $0.00

Capital Case Funding Application - 3

FDFCDC 51 Name and Requested Justification and Scope of Work (including justification 5 $ $0.00

6 $ $0.00

7 $ $0.00

8 $ $0.00

Total Amount Requested For Service Providers: $0.00

20. Please complete the following table for any non-travel expense that counsel or a service provider anticipates incurring:

REQUESTED NON-TRAVEL EXPENSES

Expense Amount Justification Type $ $ $ $ $ $ $ Total Amount Requested for Expenses: $0.00

21. Please complete the following table for any travel by counsel or a service provider that occurs outside of the district or that requires overnight lodging: SAMPLEREQUESTED TRAVEL TRIPS No. of No. of Traveler Destination Purpose of Travel Nights Trips

Capital Case Funding Application - 4

FDFCDC 52 22. Please provide any additional information you believe would assist the court in determining the reasonableness of your funding request:

IF ANY PORTION OF YOUR REQUEST IS BEING MADE NUNC PRO TUNC, YOU MUST COMPLETE THIS SECTION BEFORE SUBMITTING YOUR FUNDING REQUEST

NUNC PRO TUNC AUTHORIZATION

Nunc Pro Tunc Date:

Justification for nunc pro tunc request:

INSTRUCTIONS: 1. Save completed funding application in Word. 2. Email completed form along with the resume or CV of newly requested service providers to [email protected] 3. Questions? Contact Fourth Circuit Case Budgeting Attorney Larry Dash at 804-916-2177. SAMPLE

Capital Case Funding Application - 5

FDFCDC 53 UNITED STATES DISTRICT COURT FOR THE XXXXXXXXXX DISTRICT OF XXXXXXX XXX DIVISION FUNDING AUTHORIZATION

Defendant: XXXX Counsel: XXXX Case Number: 2:17-CR-XXX-X Budget Phase #: Pretrial/Trial Amendment #: Budget 1 Time Period Covered: From Appointment through 6/1/19

The Court, having reviewed counsel’s Pretrial/Trial Budget, hereby authorizes the following CJA funds. ATTORNEY XXX HOURS: Hrs Hrs TASKS Req'd App'd LIMITATIONS Pretrial In Court Hearings 10 10 Interviews and Conferences with Client 60 60 Witness Interviews 40 40 Consultation with Investigators, Experts & Other Services 45 45 Obtaining & Reviewing Documents and Evidence 504 504 Legal Research and Writing 20 20 Trial Preparation (only if budget includes trial) 40 40 Trial & Possible Sentencing 200 200 Travel Time 0 0 Other Activity 32 32 TOTAL HOURS 951 951

Total Attorney XXX Funds Approved: $133,140.00 (For budgeting purposes, all time is calculated at $140/hour). SERVICE PROVIDERS: SAMPLE NAME/TYPE Hrs Hrs Hourly Subtotals LIMITATIONS Req'd App'd Rate Intern 300 300 $ 25.00 $ 7,500.00 Paralegal 200 200 $ 35.00 $ 7,000.00 Investigator 80 80 $100.00 $ 8,000.00 Forensic Accountant 100 100 $225.00 $22,500.00 Accountant Support Staff 75 75 $ 90.00 $ 6,750.00 Total Service Provider Funds Approved: $51,750.00

FDFCDC 54 EXPENSES:

TYPE Req'd App'd LIMITATIONS Photocopies $400.00 $400.00 Hard Drive $129.00 $129.00 Total Expenses Approved: $529.00

AUTHORIZATION SUMMARY Appointed Counsel XXX $ 133,140.00 Service Providers $ 51,750.00 Expenses $ 529.00 TOTAL $ 185,419.00

Authorization Conditions:

1. Tracking Hours. Counsel is responsible for keeping track of attorney hours and, if applicable, hours expended by service providers and experts. The court is under no obligation to pay for services rendered in excess or outside the scope of this funding authorization. This advanced approval is subject to a reasonableness review for any voucher, at the time it is submitted.

2. Requests for Additional Funding. If additional funding is needed, counsel must submit a funding application before funding is exhausted and with sufficient time for the Court to review and rule on the request. Nunc pro tunc authorizations will be granted only if counsel can provide a reasonable explanation for exceeding a prior authorization.

3. Attorney Hours Are Fungible. Hours authorized herein for appointed counsel time are fungible between tasks. Additionally, hours authorized herein for associate counsel time are fungible between tasks. However, hours are not fungible between appointed counsel and associate counsel.

4. Must Create AUTH for Experts & Service Providers. If the budget authorized herein includes funding for service providers other than associate counsel, counsel must immediately create an “Authorization for Expert and Other Services” (AUTH) in eVoucher for each provider to create a payment record. A copy of this funding authorization shall be uploaded and attached to the AUTH request. SAMPLE 5. Travel. If travel requires airfare, counsel must contact National Travel Service (NTS) at 1-800-445-0668 to arrange the travel. Please call the Clerk’s Office before calling NTS and for any travel-related questions.

6. Expenses. The Court will also authorize reimbursement to counsel and service providers for all miscellaneous expenses, such as mileage, postage and copying, that are reasonably incurred and properly documented, subject to national and district policies and procedures.

7. Interim Voucher Schedule. The Court authorizes submission of interim vouchers for payment of counsel fees and for service providers once every other month unless the compensation accrued for the billable cycle is less than $1,500, in which case the next interim voucher will not be submitted until the next billing cycle or until the compensation reaches $1,500 whichever comes later. The final voucher is due no later than 45 days after the court’s final disposition of the case.

FDFCDC 55 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 2

§ 310 In General

§ 310.10 Availability

§ 310.10.10 Overview

(a) Investigative, expert, or other services necessary to adequate representation, as authorized by subsection (e) of the Criminal Justice Act (CJA) (18 U.S.C. § 3006A), are available to persons who are eligible under the CJA, including persons who have retained counsel but who are found by the court to be financially unable to obtain the necessary services.

(b) In this connection, a person with retained counsel is financially unable to obtain the necessary services even if the person’s resources are in excess of the amount needed to provide the person and the person’s dependents with the necessities of life, provide defendant’s release on bond, and pay a reasonable fee to the person’s retained counsel, but are insufficient to pay for the necessary services.

§ 310.10.20 Retained Counsel and Fee Arrangements

(a) In responding to requests for services under 18 U.S.C. § 3006A(e) by a person represented by retained counsel, the court should inquire into the fee arrangement between the retained attorney and the client.

(b) If the court finds the fee arrangement unreasonable in relation to fees customarily paid to qualified practitioners in the community for services in criminal matters of similar duration and complexity, or that it was made with a gross disregard of the defendant’s trial expenses, the court may order the retained attorney to pay out of such fees all or such part of the costs and expenses as the court may direct.

(c) The procedure outlined in Guide, Vol. 7A, § 210.40.40 applies to such persons who are financially able to pay some, but unable to pay all, the costs of necessary services.

§ 310.10.30 Pro Se Representation

(a) Persons who are eligible for representation under the CJA, but who have elected to proceed pro se, may, upon request, be authorized to obtain investigative, expert, and other services in accordance with 18 U.S.C. § 3006A(e).

(b) The court should authorize subsection (e) services for pro se litigants and review and approve resulting claims in the same manner as is its practice with respect to requests made by CJA panel attorneys. However, in

FDFCDC 56 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 3

matters for which appointment of counsel is discretionary under 18 U.S.C. § 3006A(a)(2), the court should make a threshold determination that the case is one in which the interests of justice would have required the furnishing of representation.

(c) Although a federal defender organization may be requested to provide administrative assistance to pro se litigants who wish to arrange for subsection (e) services, the investigative, paralegal or other services or resources of the organization should ordinarily be employed only when the organization is appointed as counsel of record, responsible for the conduct of the litigation.

§ 310.20 Limitations

§ 310.20.05 Engaging Relatives for Compensable Services

(a) Prior to engaging any relative (as the term is defined in 5 U.S.C. § 3110) to perform CJA compensable services, other than as associate counsel in the same law firm (see: Guide, Vol. 7A, § 230.53.10), counsel should first provide notification of the relationship and potential services to the presiding judicial authority.

(b) The court may, in the interest of justice, and upon finding that timely procurement of necessary services could not await prior notification, approve payment for such services up to the dollar threshold for obtaining services without prior authorization under 18 U.S.C. § 3006A(e)(2) and the CJA Guidelines (Guide, Vol. 7A, § 310.20.30).

§ 310.20.10 With Prior Authorization

(a) With prior authorization, compensation for investigative, expert, and other services is limited to the amounts in the following table for CJA- compensable work performed on or after the effective date. For guidelines applicable to capital cases, see: Guide, Vol. 7A, § 660.10.40 and § 660.20.

§ 310.20.10(a) Waivable Case Compensation Maximums for Investigative, Expert, and Other Services

If services were performed between... The compensation maximum is...

02/15/2019 to present $2,600

01/01/16 to 02/14/2019 $2,500

05/27/10 to 12/31/15 $2,400

FDFCDC 57 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 4

§ 310.20.10(a) Waivable Case Compensation Maximums for Investigative, Expert, and Other Services

If services were performed between... The compensation maximum is...

12/8/04 to 5/26/10 $1,600

11/14/86 to 12/7/04 $1,000

(b) The waivable case compensation maximum amounts apply per organization or individual, exclusive of reimbursement for expenses reasonably incurred, and per individual authorization to perform said service, except with regard to capital cases. See: Guide, Vol. 7A, § 660.20.

(c) A separate authorization should be obtained for each type of service for each person served, and for each defendant served, and for each case.

(d) While the service provider may be compensated separately for each person served, care should be taken to ensure that duplicate charges are not being made for the same services.

(e) If, under 18 U.S.C. § 3006A(e), such services are rendered by members of an organization such as a corporation, unincorporated association, or partnership (other than those created under 18 U.S.C. § 3006A(g)), in their capacities as members of that organization, compensation is deemed to have been earned by the organization and is paid to it only once, per CJA client served, in an amount not to exceed the statutory maximum, exclusive of reimbursement for expenses reasonably incurred.

§ 310.20.20 Waiving the Case Compensation Maximums

(a) Payment in excess of the case compensation limit for services authorized prior to the performance thereof may be made when certified by the court or U.S. magistrate judge and approved by the chief judge of the circuit (or an active or senior circuit judge to whom excess compensation approval authority has been delegated) as being necessary to provide fair compensation for services of an unusual character or duration.

(b) If it can be anticipated that the compensation will exceed the statutory maximum, advance approval should be obtained from the court and the chief judge of the circuit (or the active or senior circuit judge to whom excess compensation approval authority has been delegated). See: Appx. 3A (Sample Request for Advance Authorization for Investigative, Expert, or Other Services).

FDFCDC 58 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 5

§ 310.20.30 Without Prior Authorization

(a) 18 U.S.C. § 3006A(e)(2)(A) authorizes the obtaining of investigative, expert, and other services, without prior authorization but subject to subsequent review, providing the cost of the services obtained does not exceed the amounts listed in the following table, plus expenses reasonably incurred. For information regarding obtaining investigative, expert, and other services in capital cases, see: Guide, Vol. 7A, § 660.

§ 310.20.30(a) Limitations on Services Without Prior Authorization

If services were performed The compensation maximum is... between...

02/15/2019 to present $900

05/27/10 to 02/14/2019 $800

12/8/04 to 05/26/10 $500

11/14/86 to 12/7/04 $300

(b) The limitation noted above in § 310.20.30(a) may be waived, however, if the presiding judge or U.S. magistrate judge (if the services were rendered in a case disposed of entirely before the U.S. magistrate judge), in the interest of justice, finds that timely procurement of necessary services could not await prior authorization. See: 18 U.S.C. § 3006A(e)(2)(B).

§ 310.20.40 Periodic Increases to the Waivable Case Compensation Maximums

The Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No. 111-174, enacted on May 27, 2010, amended the CJA to increase the waivable case compensation amounts listed in § 310.20.10 and § 310.20.30 simultaneously with any subsequent, cumulative adjustments under 5 U.S.C. § 5303 in the rates of pay under the General Schedule (currently calculated based on the determination of the annual Employment Cost Index adjustment), rounded to the nearest hundred dollars. The Administrative Office of the U.S. Courts (AO) will provide notice when new threshold amounts are effective under this provision.

§ 310.30 Ex Parte Applications

Ex parte applications for services other than counsel under 18 U.S.C. § 3006A(e) must be heard in camera, and must not be revealed without the consent of the defendant. The application must be placed under seal until the final disposition of the case in the trial court, subject to further order of the court. Maintaining the secrecy of the application prevents the possibility that an open hearing may cause defendants to reveal their defense. Appointed counsel may not be required to submit evidence of a prior attempt to enter into a stipulation with the U.S. attorney as a prerequisite to

FDFCDC 59 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 6 obtaining services under 18 U.S.C. § 3006A(e). The court may encourage counsel to enter into stipulations, in the interest of expedition and economy, without, however, disclosing the contents or otherwise compromising the secret nature of the ex parte application.

§ 310.40 Claims for Services Other than Counsel

All claims for services other than counsel, under 18 U.S.C. § 3006A(e), should include the following:

(a) a statement as to the type of, dates of, and time expended for, the services provided;

(b) an explanation of the fee arrangement (e.g., hourly rate, etc.);

(d) supporting documentation, where practicable, for all expenses of lodgings and subsistence, and for any expenses in excess of $50.

§ 310.50 Forms for the Authorization and Payment for Services Other than Counsel

Forms for the authorization and payment for services other than counsel, together with instructions for the execution and distribution thereof, can be found on the judiciary’s public website.

§ 310.60 Interim Payments

§ 310.60.10 Non-Death Penalty Cases

(a) Where it is considered necessary and appropriate in a specific case, the presiding trial judge may arrange for periodic or interim payments to an individual whose services are obtained under 18 U.S.C. § 3006A(e). For instructions on the procedures for effecting interim payments to persons other than counsel, as well as a sample memorandum order on this subject which provides for two alternative payment methods, see: Appx. 3B (Procedures for Interim Payments to Service Providers in Non-Death Penalty Cases).

(b) The payment options provided in Appx. 3B are designed to strike a balance between the interest in relieving subsection (e) service providers of financial hardships in extended and complex cases, and the practical application of the statutorily imposed responsibility of the chief judge of the circuit to provide a meaningful review of claims for excess compensation.

FDFCDC 60 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 7

Other interim payment arrangements which effectuate this balance may be devised in consultation with the AO’s Defender Services Office.

§ 310.60.20 Death Penalty Cases

Presiding judicial officers are urged to permit interim payment in death penalty cases. Because the CJA compensation maximums for investigative, expert, and other services set out in § 310.20.10(a) do not apply in capital cases, different procedures and memorandum orders must be used in those cases. See: Guide, Vol. 7A, § 660.20. These procedures and sample memorandum orders are also set forth in Appx. 3C (Procedures for Interim Payments to Service Providers in Capital Proceedings).

§ 310.65 Proration of Claims

§ 310.65.10 In General

(a) If services were provided for more than one CJA representation, the time spent in common, including travel time, must be represented on the voucher forms by:

x prorating the service time among the representations on separate vouchers; or x billing the entire service time on a voucher pertaining to one of the representations

The supporting materials to the vouchers must explain the method of billing and, when applicable, cross-reference the other CJA representations (see: § 310.65.20).

(b) When a service provider incurs travel or other expenses applicable to more than one CJA representation, the entire amount of the expenses must be billed on one voucher.

Time or expenses “spent in common” includes work performed simultaneously or within the same unit of time, or expenses incurred, for more than one representation (e.g., travel for more than one client). Double billing of time or expenses is prohibited (e.g., billing the same travel time or expenses applicable to more than one representation on more than one voucher).

x a federal public or community defender providing representation under the CJA or related statutes, or x a CJA panel attorney or other attorney or entity authorized to obtain services for a particular representation under the CJA or related statutes.

FDFCDC 61 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 8

Reference to a “voucher” in this section includes invoices submitted to a federal public or community defender organization for work performed for that entity.

For information regarding the overlap of billing time periods in the interpreter context specifically, see: § 320.15.30.

§ 310.65.20 Cross-Referencing Vouchers

(a) Whenever a service provider submits a voucher, as provided by this section, that includes time spent in common, if the time is prorated then each CJA representation must be cross-referenced on the supporting documentation to each voucher. If the time is billed to one representation, the other representations must be cross-referenced on the supporting documentation to that voucher. However, to ensure that an appointed attorney does not receive inappropriate information as to another attorney’s use of the service provider, the CJA representations that are cross-referenced should not be identified by name and case number if the work was performed for an attorney other than the one who will be certifying the voucher, although the number of other representations should be listed.

(b) After the attorney certifies the service provider’s voucher, the service provider, upon the request of the court’s designated CJA voucher review personnel, must provide the name, case number, and any other identifying information for such representations.

§ 310.65.30 Prorating Time Limitation

Proration of time among CJA representations must not result in a service provider billing a larger amount than would have been billed if all the time was assigned to one voucher.

§ 310.65.40 Application of the Case Compensation Maximum

Where compensation is claimed on a voucher for time spent in common on more than one CJA representation, the compensation will be applied to the pre-authorized and case compensation maximum amounts for the representation on that voucher.

§ 310.65.50 Time Spent in Common with Non-CJA Representations

(a) If the service provider is billing under the CJA for time or expenses, including travel, that were spent in common for a purpose other than a CJA representation, the service provider must report such information so that the court can determine whether, in fairness to the provider, the time or expenses should be apportioned and the provider compensated for the time or expenses reasonably attributable to the CJA.

FDFCDC 62 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 9

Note: There is no apportionment between a contract court interpreter’s work for a court unit and the CJA, see: § 320.15.30.

(b) The service provider should explain the rationale for billing under the CJA, and the court may conduct a further inquiry.

(c) In determining whether time or expenses spent in common for a purpose other than a CJA representation should be apportioned, the court should consider:

x the time or expenses reasonably expended in the performance of the service provider’s duties under the CJA in relation to the time and expenses expended furthering other purposes; x the significance to the representation of the duties performed or expenses incurred; and x the likelihood that the service provider would have performed the services or incurred the expenses under the CJA in the absence of the other purposes.

§ 310.70 Review of Vouchers

Absent extraordinary circumstances, judges should act upon claims for compensation for investigative, expert, or other services within 30 days of submission.

§ 320 Authorization of Investigative, Expert, and Other Services

§ 320.10 Investigators

When necessary to an adequate representation as described above, the court may authorize, under 18 U.S.C. § 3006A(e), the services of an investigator.

§ 320.15 Interpreters

§ 320.15.10 Terms of Compensation

(a) Interpreting services provided under the CJA may be compensated:

x according to the terms and conditions set forth in the court interpreter services contract; x on an hourly rate basis; or x on another appropriate basis.

(b) Interpreters should be compensated consistently throughout the district or, if applicable, in individual court locations.

FDFCDC 63 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 10

§ 320.15.20 Reviewing the Rate of Compensation

(a) In determining the reasonableness of rates paid to interpreters under the CJA, courts should utilize either:

(1) the half- and full-day rates established by the Director for contract court interpreters performing in-court services; or

(2) an hourly rate. The half- and full-day rates (prorated hourly) or the hourly overtime rate should be used as a guidepost for the reasonableness of the hourly rate.

(b) Justification should be submitted to the presiding judicial officer if compensation is sought for an interpreter by a method different from or in an amount in excess of presumptive or maximum rates adopted by a court.

§ 320.15.30 Overlap of Billing Time Periods

(a) Contract court interpreters must not bill or receive funds from any other federal court unit, federal public defender, community defender organization, or other attorneys or entities obtaining interpreting services under the CJA or related statutes for any services rendered during the same half- or full-day for which the contract court interpreter is being compensated pursuant to the court interpreter services contract. See: Guide, Vol. 5, § 220.30.20. Thus, an interpreter retained by the court under the court contract for a one-half or full-day period may not bill the CJA for any work performed during that same half-day or full-day period even if the court no longer requires the interpreter’s services.

(b) An interpreter billing on a half- or full-day rate basis, hourly basis, or other unit of time under the CJA must not charge any other federal court unit, federal public defender, community defender, CJA panel attorney, or other person or entity otherwise authorized by the court to obtain the services of an interpreter under the CJA or related statutes for any services rendered within the same time period.

(c) When an interpreter is invoicing under the CJA on a half-day rate basis and works one half-day for a court unit and another half-day for a CJA representation, or is invoicing two separate half-days for different CJA representations, then the first half-day should be billed at the half-day rate and the second at the difference between the half-day and full-day rates, unless otherwise negotiated.

FDFCDC 64 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 11

(d) It is permissible to prorate compensation among more than one CJA representation (but expenses must be invoiced to one CJA representation) or to apportion compensation, including expenses, between a CJA representation and a non-CJA purpose (not including a federal court unit). See: § 310.65.

§ 320.20 Psychiatrists, Psychologists

§ 320.20.10 Type of Examinations

Chapter 313 of Title 18, as amended by the Insanity Defense Reform Act of 1984 (Chapter IV of the Comprehensive Crime Control Act of 1984), provides for court- directed psychiatric or psychological examination of individuals in connection with the various proceedings to determine mental condition authorized under that chapter. The functions of these separate proceedings are to determine:

(a) the mental competency of a defendant to stand trial (18 U.S.C. § 4241);

(b) insanity at the time of the offense (18 U.S.C. § 4242);

(c) the mental condition of an acquitted person hospitalized following a finding of not guilty only by reason of insanity (18 U.S.C. § 4243);

(d) the present mental condition of a convicted defendant (18 U.S.C. § 4244);

(e) the present mental condition of an imprisoned person who objects to transfer to a treatment facility (18 U.S.C. § 4245); and

(f) the present mental condition of a hospitalized person due for release (18 U.S.C. § 4246).

In addition, mental condition examinations may be conducted for purposes other than those specified in 18 U.S.C. chapter 313, e.g., to aid the defendant in preparing a defense.

§ 320.20.20 Source of Payment

(a) CJA funds are used to pay for psychiatric and related services obtained in accordance with 18 U.S.C. § 3006A(e) upon a determination that the services are “necessary for an adequate defense.” These are “defense” services, where the defendant selects the expert and controls the disclosure of the expert’s report.

(b) It is important to note that psychiatrists and related experts may be used in many circumstances in which payment is made from a source other than the CJA appropriation. In these situations the court or the government selects the expert and persons other than the defendant also have access

FDFCDC 65 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 12

to the expert’s report. The Department of Justice (DOJ) generally pays for these “non-defense” services. The chart in § 320.20.60 summarizes payment responsibility for the various circumstances in which psychiatric and related services are utilized.

§ 320.20.30 Limitation of Amount

The limitations contained in § 310.20 apply to compensation claims submitted by “defense” psychiatrists and related experts, to be paid out of the CJA appropriation. For information regarding “dual purpose” examinations, see: § 320.20.50.

§ 320.20.40 Procedures for Payment

(a) CJA Appropriation – Defense Services

(1) Form CJA 21 (Authorization and Voucher for Expert and Other Services) should be used for all payments for “defense” services in non-capital cases.

(2) Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services) should be used for all payments for “defense” services in death penalty cases.

(3) The form CJA 21 or CJA 31 should clearly describe the purpose of the expert’s service.

(4) If separate vouchers are submitted for examination and testimony, they should be cross-referenced by voucher number.

(b) DOJ

Compensation claims for psychiatric and related services to be paid for by the DOJ should be referred to the U.S. attorney or assistant U.S. attorney.

§ 320.20.50 Dual Purpose Examinations

(a) On occasion, a psychiatrist or related expert will be asked to examine an individual for both a “defense” purpose and a “non-defense” purpose. In these cases, the defense has waived the confidentiality of the “defense” portion of the examination. In such dual purpose examinations, for the convenience of the expert providing the service, the entire compensation claim may be submitted on Form CJA 21, or, in a death penalty proceeding, Form CJA 31. The CJA will pay the expert the total amount approved and obtain reimbursement to the CJA appropriation from the DOJ for one-half of the cost. As a result of the AO’s need to seek reimbursement from the DOJ, claims submitted for dual purpose

FDFCDC 66 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 13

examinations must be accompanied by separate court orders that indicate:

x who requested the examination; x the specific purpose(s) of the examination; x to whom the examination is directed; and x to whom copies of the report are to be given.

(b) The limitation in § 320.20.30 applies to 50 percent of the claim for a dual purpose examination in which a portion of the examination is for “defense” purposes.

(c) In some “dual purpose” examinations both portions of the examination are chargeable to the same payment source. For instance, if the examination included evaluation of competency to stand trial under 18 U.S.C. § 4241 and evaluation of sanity at the time of the offense under 18 U.S.C. § 4242, the DOJ would be responsible for both portions of the examination and the entire compensation claim should be submitted to the U.S. attorney or assistant U.S. attorney.

§ 320.20.60 Summary Chart: Responsibility for Payment of Psychiatric and Related Expert Services

Type of Service CJA DOJ

(a) To determine mental competency to stand trial, under 18 U.S.C. § 4241

(1) Examination costs Yes, regardless of which party requests, including examination on court’s own motion

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls

(3) Testimony costs for examiner if If witness If witness appears on behalf called at trial appears on of government behalf of defense

(b) To determine existence of insanity at time of offense, under 18 U.S.C. § 4242

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes, regardless of which called at trial party calls

(1) Examination costs Yes

FDFCDC 67 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 14

§ 320.20.60 Summary Chart: Responsibility for Payment of Psychiatric and Related Expert Services

Type of Service CJA DOJ

(2) Testimony costs for examiner if Yes called at trial

(d) To determine mental condition of hospitalized person found not guilty only by reason of insanity, under 18 U.S.C. § 4243

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls

(e) To determine mental condition of convicted person suffering from mental disease or defect, under 18 U.S.C. § 4244

(1) Examination costs Yes

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls

(f) To determine mental condition of imprisoned person, under 18 U.S.C. § 4245

(1) Examination costs Yes, including costs of additional examiner selected by imprisoned person in accordance with 18 U.S.C. § 4247(b)

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls, including additional examiner selected by imprisoned person in accordance with 18 U.S.C. § 4247(b)

(g) To determine mental condition of hospitalized person due for release, under 18 U.S.C. § 4246

(1) Examination costs Yes, including costs of additional examiner selected by hospitalized person in accordance with 18 U.S.C. § 4247(b)

FDFCDC 68 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 15

§ 320.20.60 Summary Chart: Responsibility for Payment of Psychiatric and Related Expert Services

Type of Service CJA DOJ

(2) Testimony costs for examiner if Yes, regardless of which called at hearing party calls, including additional examiner selected by hospitalized person in accordance with 18 U.S.C. § 4247(b)

(h) Examination of a person in custody Yes, under all circumstances as a material witness (i) Examination and testimony costs for If requested by If requested by the expert witnesses not appointed under the defense government, or if 18 U.S.C. §§ 4241, 4242, 4243, 4244, appointed as an 4245, 4246 independent expert on court’s own motion under Fed. R. Evid. 706

§ 320.30 Transcripts

§ 320.30.10 Authorization and Payment

(a) For panel attorneys, the preferred method for payment of transcripts authorized by the court is for the court reporter or reporting service to claim compensation directly on a Form CJA 24 (Authorization and Voucher for Payment of Transcript). Alternatively, the panel attorney may pay for the court-authorized transcript and obtain reimbursement as an “out-of-pocket expense,” using Form CJA 24. See: Guide, Vol. 7A, § 230.63.20. Regardless of which method is used, the limitations set forth in § 310.20 and the $7,500 limitation set forth in Guide, Vol. 7A, Ch. 6 are inapplicable with regard to the cost of transcripts.

(b) In a direct appeal in a case in which counsel is assigned under the CJA, neither the CJA nor 28 U.S.C. § 753(f) requires the signing of a pauper’s oath or certification by the court that the appeal is not frivolous in order to obtain a transcript.

FDFCDC 69 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 16

§ 320.30.20 Accelerated Transcript Costs

Routine apportionment of accelerated transcript costs among parties in CJA cases is prohibited. The following resolution was adopted by the Judicial Conference in March 1980, and modified in September 1986:

That the furnishing of accelerated transcript services in criminal proceedings should be discouraged; however, recognizing that there are some circumstances in which such transcript services are necessary and required by either the prosecution or the defense, or both, accelerated transcript services may be provided.

That in those cases where accelerated transcript services are provided, the party from whom the request or order emanates shall pay for the original, and if the requesting or ordering party is other than defense counsel appointed under the Criminal Justice Act, the CJA counsel shall be entitled to a copy at the copy rate.

That the present practice, in some districts, of routinely apportioning the total cost of accelerated transcript services equally among the parties should be abandoned.

See: JCUS-SEP 86, p. 90.

§ 320.30.30 Commercial Duplication in Multi-Defendant Cases

(a) In multi-defendant cases involving CJA defendants, no more than one transcript should be purchased from the court reporter on behalf of CJA defendants. One of the appointed counsel or the clerk of court should arrange for the duplication, at commercially competitive rates, of enough copies of the transcript for each of the CJA defendants for whom a transcript has been approved. The cost of such duplication will be charged to the CJA appropriation. This policy would not preclude the furnishing of duplication services by the court reporter at the commercially competitive rate.

(b) In individual cases involving requests for accelerated transcripts, the court may grant an exception to the policy set forth in (a) of this subsection based upon a finding that application of the policy will unreasonably impede the delivery of accelerated transcripts to persons proceeding under the CJA. Such finding should be reflected on the transcript voucher.

§ 320.30.40 Standards for Transcripts of Other than Federal Court Proceedings

In negotiating agreements and contracts for providing transcripts of other than federal court proceedings, including, for example, transcription or translation of wiretap

FDFCDC 70 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 17 recordings, it is recommended that the standards for the size and format of a page be the same as those used for transcripts of federal court proceedings.

§ 320.40 Fact Witnesses and Depositions

§ 320.40.10 Fees and Expenses of Fact Witnesses

(a) Generally speaking, fees and expenses of fact witnesses for defendants proceeding under the CJA are paid by the DOJ. See: Fed. R. Crim. P., Rule 17(b); 28 U.S.C. § 1825.

(b) Section 1825 of 28 U.S.C. specifically provides for the payment of witness fees by the DOJ in all federal criminal proceedings, and in proceedings for a writ of habeas corpus or in proceedings under section 2255 of that title upon certification of a federal public defender or assistant federal public defender, or clerk of court upon the affidavit of other counsel appointed under the CJA.

(c) If advance witness travel funds are required, the court should issue the subpoena order, so stating, to authorize the travel advance by the marshal. These expenses will not be paid from CJA funds.

§ 320.40.20 Depositions

Depositions are covered by Fed. R. Crim. P., Rule 15, rather than 18 U.S.C. § 3503 (repealed).

(a) Expenses incurred in the taking of fact witness depositions (notarial fees, interpreters, transcripts, etc.) are paid by the DOJ, regardless of which party requested the deposition.

(b) The costs of attendance of fact witnesses for either party at the deposition are paid by the DOJ under Rule 17 (b).

(d) Reasonable travel and subsistence expenses incident to attendance of counsel and the defendant at the deposition are paid by the DOJ (1) if the government is the requesting party, or (2) if the defendant is the requesting party and is unable to bear the deposition expenses, based on resources that would be used to determine financial eligibility for appointed counsel. However, it should be noted that the presence of the defendant is not essential to defense depositions since the confrontation clause only requires the defendant’s presence if the depositions are intended to be used against the defendant.

FDFCDC 71 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 18

§ 320.40.30 Travel Expenses, Subsistence, and Fees of Counsel in Habeas Corpus Cases

In habeas corpus and 28 U.S.C. § 2255 cases, the court may order the state or the government to pay the “expenses of travel and subsistence and fees of counsel” to attend the taking of a deposition at the request of the state or government. See: Rules Governing §§ 2254 and 2255 Cases in U.S. District Courts, Rule 6.

§ 320.50 Guardian Ad Litem

§ 320.50.10 Proceedings Involving Juveniles

A guardian ad litem appointed under 18 U.S.C. § 5034 is not eligible for compensation under the CJA or any other authority. Any person who is appointed as both counsel and guardian ad litem in one case under § 5034 should prorate time spent fulfilling the duties of these two offices. Only time spent as counsel on a case is compensable and should be reflected on the CJA claim.

§ 320.50.20 Prisoner Transfer Proceedings

A guardian ad litem appointed in proceedings to verify consent of a minor or incompetent prisoner to transfer from the United States to a foreign country is eligible for compensation under the CJA under 18 U.S.C. § 4109(b). See: Guide, Vol. 7A , § 230.23.20(d) on compensation limits and Guide, Vol. 7B (International Prisoner Transfer Proceedings).

§ 320.60 Commercial Computer-Assisted Legal Research Services

(a) The court may authorize counsel to obtain computer-assisted legal research services, where the research is performed by employees of a commercial legal research firm or organization rather than by appointed counsel, provided that the total amount charged for computer-assisted legal research services is reasonable. Requests by counsel for authority to obtain such computer-assisted legal research services should include: a brief explanation of the need for the research services; and an estimate of the charges.

(b) Claims for compensation for such services should be submitted on Form CJA 21 (Authorization and Voucher for Expert and Other Services), or, in a death penalty proceeding, Form CJA 31 (Death Penalty Proceeding: Ex Parte Request for Authorization and Voucher for Expert and Other Services). For information concerning reimbursement for the cost of direct use, by appointed counsel, of computer-assisted legal research services, see: Guide, Vol. 7A, § 230.63.30.

FDFCDC 72 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 19

§ 320.70 Other Services and Computer Hardware and Software

§ 320.70.10 Other Services

In addition to investigators, psychiatrists, psychologists, and reporters, services other than counsel may include, but are not necessarily limited to:

x interpreters;

x computer systems and automation litigation support personnel and experts;

x paralegals and legal assistants, including law students;

x neurologists and other medical experts; and

x laboratory experts in such areas as ballistics, fingerprinting, and handwriting.

§ 320.70.20 Notarial and Stenographic Expenses

The use of CJA funds is authorized to pay expenses of eligible defendants for stenographic and notarial expenses required to perpetuate and authenticate testimony of expert witnesses for such defendants.

§ 320.70.30 Extraordinary Office Expenses

(a) CJA attorneys are expected to use their own office resources, including secretarial help, for work on CJA cases. See: Guide, Vol. 7A, § 230.66.10.

(b) However, unusual or extraordinary expenses of these types may be considered “other services necessary for an adequate defense” and may be paid from CJA funds under 18 U.S.C. § 3006A(e).

(c) In determining whether the expense is unusual or extraordinary, consideration should be given to whether the circumstances from which the need arose would normally result in an additional charge to a fee- paying client over and above that charged for overhead expenses. See: Decision of the Comptroller General, B-139703, Feb. 28, 1974, 53 Comp. Gen. 638.

§ 320.70.40 Computer Hardware, Software, or Litigation Support Services

(a) Overview

(1) Providing an adequate defense may require CJA panel attorneys to utilize computer hardware, software, or litigation support services

FDFCDC 73 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 20

not typically available in a law office. In such cases, following the standards in § 320.70.30, counsel may apply to the court for authorization of CJA funds for the acquisition of such property or services.

(2) Before seeking court approval for any computer hardware or software with a cost exceeding the limitations in § 310.20.30(a), or for the utilization of computer systems, litigation support products, services, personnel, or experts with an expected combined cost exceeding $10,000, appointed counsel must consult the National Litigation Support Team in the AO’s Defender Services Office (phone number: 510-637-3500) for guidance. Counsel must inform the court in writing of the Defender Services Office’s advice and recommendation regarding counsel’s proposed expenditure. See also: Appx. 3D (Sample Order Authorizing the Acquisition of Computer [Hardware and/or Software] under the CJA).

(b) Acquisition of Computer Hardware and/or Software

(1) The request for acquisition of the computer hardware and/or software, or for the procurement of litigation support services should be submitted on a Form CJA 21 (Authorization and Voucher for Expert and Other Services), or, in a death penalty proceeding, Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services).

(2) Property purchased with CJA funds is the property of the United States and remains so after the case is completed.

(3) When property is purchased, counsel must provide the Defender Services Office with a copy of the following documents to ensure the property is properly accounted for: a copy of the court’s order approving the request; a copy of the completed Form CJA 21 (or Form CJA 31); the purchase order from the vendor and any receiving documents, such as a copy of the packing slip or the company’s invoice.

(4) Because computer hardware or storage devices being used by counsel may contain confidential or privileged information, all case- related materials must be removed before the hardware is returned as described below. Unless otherwise required by the court or by law, counsel should retain copies, electronic or otherwise, of the case-related materials for the client’s file.

Note: When large amounts of electronic information are placed on drives or storage devices purchased with CJA funds, counsel may

FDFCDC 74 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 21

apply to the court to retain the drive or an alternative drive as the most cost-effective and efficient method for preserving the data.

(5) Upon the completion of the case, counsel must contact the National Litigation Support Team in the Office of Defender Services at (510) 637-3500 for instructions on returning any software, and directions for deleting case-related material from any hardware and returning it to the National Litigation Support Team for the permanent removal of case-related material. If appointed counsel has acquired software, then counsel should provide all accounting information for the software, including any serial numbers, activation codes, or other identifying information, and remove the software from his or her machines. If appointed counsel acquired computer hardware, it must be returned in good condition.

§ 320.70.50 Paralegals, Legal Assistants, and Other Non-Secretarial Support

(a) For services of paralegals, legal assistants, and other non-secretarial professional support personnel employed by appointed counsel, the court will determine a reasonable hourly compensation rate that may not exceed the lesser of the rate paid to counsel under the CJA or the rate typically charged by counsel to a fee-paying client for such services.

(b) Authorizing compensation at such rates should result in greater efficiency and lower costs for the CJA program than would occur if counsel performed and charged for these services.

§ 320.80 Reimbursement of Expenses

§ 320.80.10 Determination of Reasonableness

In determining the reasonableness of expenses of persons furnishing investigative, expert, or other services, claimants and the court should be guided by the provisions of these Guidelines regarding reimbursement of expenses of counsel. See: Guide, Vol. 7A, § 230.63 and § 230.66. Gross receipts or other taxes levied on fees for expert services rendered under the CJA are not reimbursable expenses.

§ 320.80.20 Government Travel Rates

Government travel rates at substantial reductions from ordinary commercial rates may be available from common carriers for travel authorized by the court in connection with representation under the CJA. To obtain such rates, investigators and other service providers must contact the clerk of court and obtain prior approval from the presiding judicial officer.

FDFCDC 75 Guide to Judiciary Policy, Vol. 7A, Ch. 3 Page 22

§ 320.90 Record Keeping

(a) Investigative, expert, and other service providers must maintain contemporaneous time and attendance records for all work billed by them, as well as expense records.

(b) Such records are subject to audit and must be retained for three years after approval of the appointed counsel’s or the service provider’s final voucher, whichever is later, for a representation.

FDFCDC 76 Sample Engagement Letter: Contents of Financial Arrangements

Case name: ______

Case number: ______

The engagement of your services for this case is subject to the following:

(1) You will be compensated at a rate of $ ______per hour [or specify other fee arrangement], and [$ ______per hour for long-distance travel-related time that will be explained in correspondence to you]. The maximum payment amount authorized by the court as of this date for your services in $ ______, which includes any expenses incurred by you.

(2) You will submit your voucher(s) (CJA Form 21 in a non-capital representation and CJA Form 31 in a capital representation) to me, and it is my responsibility as counsel to certify to the court that the services were rendered. Payment for your services is subject to approval by the presiding judge and, in certain circumstances, the chief judge of the court of appeals. Approved payments are made by the Department of the Treasury out of the federal judiciary’s Defender Services account, not by me or my law firm.

(3) The presiding judge (and the circuit chief judge, if applicable) has discretion to reduce a voucher. Specific reasons include: (a) a mathematical error; (b) non-compliance with the Guidelines for Administering the CJA and Related Statutes (CJA Guidelines), Guide to Judiciary Policy, Volume 7, Part A, or court policies; and (c) a determination that the services claimed are reasonable either in terms of the work performed or the amount of time and expenses submitted. Accordingly, this Engagement Letter is not a guarantee of payment for all services rendered or expenses incurred.

(4) Do not perform services or incur expenses that would result in an invoice in excess of the maximum payment amount authorized by the court (as set forth in paragraph (1)). Doing so creates a risk that the court will not authorize the payment for the work done or expenses incurred in excess of the maximum authorized amount, even if the services performed or expenses incurred are necessary. You must advise me before you exceed the court’s maximum authorized payment amount, and if I determine such additional work and/or expenses are necessary for the representation, I will seek approval from the court for a new maximum authorization level, before such work is performed or expenses incurred.

(5) Travel expenses will be reimbursed on the basis of actual expenses incurred. Please consult with me regarding the maximum reimbursement amounts for travel expenses. Airline travel must be authorized by the court by my application. If airline travel is authorized, I will provide guidance to you regarding the purchase of a ticket.

FDFCDC 77 Sample Engagement Letter Page 2

(6) Record Keeping – Consistent with Guidelines § 320.90, you are required to maintain contemporaneous time and attendance records for all work/services billed, including work performed by associates, partners, and support staff, as well as expense records. These records should be submitted with your CJA voucher for payment and must be retained for three years after approval of the appointed counsel’s or the service provider’s final voucher, whichever is later.

(7) Unless otherwise authorized by the court, a voucher for services performed and expenses incurred for the representation will be submitted at the conclusion of your services. While the court attempts to process invoices as quickly as possible, there may be delays in payment due to workload and other factors.

(8) Scope of Work – You are authorized to do the following work:

______

Accepted by: ______

Date: ______

FDFCDC 78 UNITED STATES DISTRICT COURT EX PARTE REQUEST FORM SEEKING ADVANCE AUTHORIZATION FOR INVESTIGATIVE, EXPERT, OR OTHER SERVICES

Name of Attorney:

Case Name: Case No.:

Name of Service Provider:

Hourly Rate Requested:

Number of Hours Requested:

Total Amount Requested:

Justification for Requesting Service:

Provider’s Relevant Experience and Qualifications (attach a CV if appropriate):

Fee Arrangement, if Applicable:

Brief Explanation of Services and Expenses to Be Included:

Whether You Anticipate Requesting Additional Services/Funding from/for This Provider (if so, please provide details):

Attorney’s Electronic Signature: Date:

FDFCDC 79 This page intentionally left blank for double-sided pagination and printing

FDFCDC 80 SUPREME COURT REVIEW AND PREVIEW

Paul M. Rashkind

NOTES

FDFCDC 81 UNITED STATES SUPREME COURT REVIEW-PREVIEW-OVERVIEW

CRIMINAL CASES GRANTED REVIEW AND DECIDED DURING THE OCTOBER 2017-19 TERMS THRU APRIL 3, 2019

PAUL M. RASHKIND CHIEF, APPELLATE DIVISION OFFICE OF THE FEDERAL PUBLIC DEFENDER, S.D. FLA.

I. SEARCH & SEIZURE

Vehicles and Motorists

Warrantless Search of Rental Car. Byrd v. United States, 138 S. Ct. 1518 (May 14, 2018). Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the car. In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. For this reason, the troopers told Byrd they did not need his consent to search the car, including its trunk where he had stored personal effects. A search of the trunk uncovered body armor and 49 bricks of heroin. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute, and possession of body armor by a prohibited person. Byrd moved to suppress the evidence as the fruit of an unlawful search. The district court denied the motion, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. Based on this conclusion, both the district court and court of appeals deemed it unnecessary to consider whether the troopers had probable cause to search the car. The Supreme Court granted cert. to address the question whether a driver has a reasonable expectation of privacy in a rental car when that person is not listed as an authorized driver on the rental agreement. In a decision authored by Justice Kennedy (9-0), the Court reversed and remanded, holding that, as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver. The Court concluded a remand is necessary, however, to address in the first instance the government’s argument that this general rule is inapplicable because, in the

Prepared by Paul M. Rashkind 1 FDFCDC 82 circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, the justices agreed, “our cases make clear he would lack a legitimate expectation of privacy. It is necessary to remand as well to determine whether, even if Byrd had a right to object to the search, probable cause justified it in any event.” Justice Thomas, joined by Gorsuch, concurred, but expressed “serious doubts about the ‘reasonable expectation of privacy’ test from Katz v. United States, 389 U.S. 347, 360–361 (1967) (Harlan, J., concurring). I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. In my view, it would be especially ‘unwise’ to reach that issue . . . because the parties fail to adequately address several threshold questions [such as the type of property interest involved and the body of law governing that property right].” The concurrence ends with an invitation: “In an appropriate case, I would welcome briefing and argument on these questions.” Justice Alito concurred, as well, with the specific understanding that the court of appeals can “reexamine the question whether petitioner may assert a Fourth Amendment claim or to decide the appeal on another appropriate ground.”

Warrantless Search of Vehicle at Residence. Collins v. Virginia, 138 S. Ct. 1663 (May 29, 2018). County police officers were looking for the person who eluded them on a motorcycle in two high-speed incidents. Although the rider’s helmet had obscured his face, the officers suspected Ryan Collins. A few months after the eluding incidents, the officers encountered Collins at the DMV. During their conversation, one officer visited Collins’s Facebook page and spotted a picture of a motorcycle, covered by a tarp, parked at a house. Collins told the officers he did not know anything about the motorcycle. After leaving the DMV, one of the officers located the house in the photograph. Collins’s girlfriend (and mother to his child) lived there, as did Collins himself at least several nights each week. A dark-colored car was parked about halfway up the driveway, where a visitor might pass to reach the front door. A motorcycle covered in a white tarp sat behind that car. The motorcycle rested on the part of the driveway running past the house’s front perimeter. This portion of the driveway was enclosed on three sides: the home on one side, a brick retaining wall on the opposite side, and a brick

Prepared by Paul M. Rashkind 2 FDFCDC 83 wall in the back. The motorcycle was no more than a car’s length away from the side of the dwelling. Seeing the motorcycle covered in a tarp, the officer walked onto the driveway. He did not have permission to go onto this property. The officer then entered the partially enclosed parking space alongside the home, removed the tarp, and obtained the license tag and VIN number. After running the VIN number, the officer learned the motorcycle was flagged as stolen. He knocked at the front door, and Collins was arrested for possession of stolen goods after admitting that he owned the motorcycle. The state courts upheld the search under the automobile exception to the warrant requirement. The Supreme Court reversed (8-1) in an opinion by Justice Sotomayor. “This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.” The Court held that where a vehicle is parked on the curtilage of a home, the automobile exception cannot justify the intrusion into protected areas necessary to conduct the vehicle search—in other words, the automobile exception yields. Reasoning that “the scope of the automobile exception extends no further than the automobile itself,” the Court determined that the search of a vehicle on the curtilage of a home was no more permissible than the absurd suggestion that an officer could use the automobile exception to enter a living room and search a motorcycle he saw through the window. The Court emphasized that its own precedent has long guarded against allowing exceptions to the warrant requirement to “justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.” Allowing the automobile exception to justify such an intrusion onto the curtilage threatened to “transform what was meant to be an exception into a tool with far broader application” and “unmoor[ed] the exception from its justifications.” In reaching its conclusion, the Court rejected Virginia’s arguments supporting the search. First, the Court rejected Virginia’s assertion that the automobile exception was “categorical,” permitting warrantless searches “anytime, anywhere.” Second, the Court declined Virginia’s invitation to draw the line somewhere other than curtilage—specifically, a bright line at “the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage.” The Court rejected this argument in part because it “rests on a mistaken premise about the constitutional significance of visibility,” and further because it would “automatically . . . grant constitutional rights to those

Prepared by Paul M. Rashkind 3 FDFCDC 84 persons with financial means” to have such structures. Justice Thomas concurred, writing separately to question the Court’s authority to require that state courts apply the federal exclusionary rule. Justice Alito dissented in no uncertain terms.

Warrantless Blood Draw from Unconscious Motorist. Mitchell v. Wisconsin, 139 S. Ct. 915 (cert. granted Jan. 11, 2019); decision below at 914 N.W.2d 151 (Wis. 2018). In both Missouri v. McNeely and Birchfield v. North Dakota, the Supreme Court referred approvingly to “implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply” with tests for alcohol or drugs when they have been arrested on suspicion of driving while intoxicated. 569 U.S. at 141, 161 (2013); 136 S. Ct. 2160, 2185 (2016). But a majority of states, including Wisconsin, have implied-consent laws that do something else entirely: they authorize blood draws without a warrant, without exigency, and without the assent of the motorist, under a variety of circumstances—most commonly when the motorist is unconscious. State appellate courts have sharply divided on whether such laws comport with the Fourth Amendment. The question presented is: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Reasonable Suspicion to Stop Motorist. Kansas v. Glover, 139 S. Ct. ___ (cert. granted Apr. 1, 2019); decision below at 422 P.3d 64 (Kan. 2018). While on routine patrol, a Kansas police officer ran a registration check on a pickup truck with a Kansas license plate. The Kansas Department of Revenue’s electronic database indicated the truck was registered to Charles Glover, Jr. and that Glover’s Kansas driver’s license had been revoked. The officer stopped the truck to investigate whether the driver had a valid license because he “assumed the registered owner of the truck was also the driver.” The stop was based only on the information that Glover’s license had been revoked; the deputy did not observe any traffic infractions and did not identify the driver. Glover was in fact the driver, and was charged as a habitual violator for driving while his license was revoked. Though Glover admitted he “did not have a valid driver’s license,” he moved to suppress all evidence from the stop, claiming the stop violated the Fourth Amendment, as interpreted in Terry v. Ohio, 392 U.S. 1 (1968), and Delaware v. Prouse, 440 U.S. 648 (1979), because the deputy lacked reasonable suspicion to pull him over. The trial court granted the

Prepared by Paul M. Rashkind 4 FDFCDC 85 motion to suppress based only on the judge’s anecdotal personal experience that it is not reasonable for an officer to infer that the registered owner of a vehicle is the driver of the vehicle. The first state court of appeal reversed, but the state supreme court granted review and reinstated the order of suppression – Although it expressly rejected reliance on just “common sense,” it held that an officer lacks reasonable suspicion to stop a vehicle when the stop is based on the officer’s suspicion that the registered owner of a vehicle is driving the vehicle unless the officer has “more evidence” that the owner actually is the driver. The state petitioned for cert, contending: (1) The Kansas decision conflicts with state and federal precedent involving “12 other state supreme courts, 13 intermediate state appellate courts, and 4 federal circuit courts, including the Tenth Circuit, which covers Kansas. See, e.g., United States v. Pyles, 904 F.3d 422, 425 (6th Cir. 2018) (noting the split); United States v. Cortez-Galaviz, 495 F.3d 1203, 1207-08 (10th Cir. 2007) (Gorsuch, J.)”; (2) The Kansas ruling adopted a more demanding standard than the “minimal” suspicion set forth in United States v. Sokolow, 490 U.S. 1, 7 (1989); and (3) The Kansas ruling defies common sense on an important and recurring Fourth Amendment question about “judgments and inferences” that law enforcement officers make every day. Illinois v. Wardlow, 528 U.S. 119, 125 (2000).” The Supreme Court granted cert. to determine: “[W]hether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.”

Electronic Evidence

Historical Cell Phone Location Data. Carpenter v. United States, 138 S. Ct. 2206 (June 22, 2018). In this case, as in thousands of cases each year, the government sought and obtained the historical cell phone location data of a private individual pursuant to a disclosure order under the Stored Communications Act (SCA) rather than by securing a warrant. The historical data revealed the location and movements of Carpenter, a cell phone user, over the course of 127 days, and was used to prove his location in the vicinity at the time of multiple armed robberies. Under the SCA, a disclosure order does not require a finding of probable cause. Instead, the SCA authorizes the issuance of a disclosure order whenever the government “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought

Prepared by Paul M. Rashkind 5 FDFCDC 86 “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). As a result, the district court never made a probable cause finding before ordering Carpenter’s service provider to disclose months’ worth of his cell phone location records. A divided panel of the Sixth Circuit held that there is no reasonable expectation of privacy in these location records, relying in large part on four-decade-old decisions of the Supreme Court. Those decisions form what is known as the third-party doctrine, which exempts from the Fourth Amendment warrant clause records or information that someone voluntarily shares with someone or something else—here, the phone companies from which the records were obtained. The Supreme Court reversed, in a 5-4 decision authored by Chief Justice Roberts, holding that obtaining such historical cell site records was a Fourth Amendment search requiring a search warrant. The majority opinion holds that because of the “unique nature of cellphone location information,” the third party doctrine did not apply. The majority focused on the nature of the information at issue and the “seismic shifts in digital technology,” to justify carving out such records from the third party doctrine. The third- party doctrine was left intact as it originally applied to a telephone number and bank records, but was made inapplicable to cellphone location information. It should be noted that the opinion confines its holding to historical information of a week or more, and it specifically exempts the acquisition of information in an emergency setting, distinguishing “current” location information used to stop an ongoing crime, from historical information gathered to prosecute a completed crime. The four dissenting justices (Kennedy, Thomas, Alito & Gorsuch) wrote separate opinions, although sometimes interlocking.

Suppression of Title III Wiretaps. Dahda v. United States, 138 S. Ct. 1491 (May 14, 2018). Title III of the Omnibus Crime Control and Safe Streets Act of 1968 authorizes a judge to issue a wiretap order to intercept communications within the court’s territorial jurisdiction and provides for suppression of communications intercepted pursuant to a facially insufficient order. Roosevelt Dahda and his brother Los Dahda (and 41 others) faced criminal charges involving the operation of a marijuana distribution network centered in Kansas and extending to California. Much of the evidence introduced against them was obtained through wiretaps of cell phones used by Dahda and others. The wiretaps took place during the six months preceding the Dahdas’ arrests and had been authorized by the U.S. District Court for the District of Kansas. Petitioners moved

Prepared by Paul M. Rashkind 6 FDFCDC 87 to suppress the wiretap evidence at their criminal trial arguing that the evidence was obtained pursuant to a series of facially insufficient wiretap orders that authorized interception of communications outside of the issuing court’s territorial jurisdiction. The district court denied their motion to suppress the evidence and they were convicted. The Tenth Circuit concluded in their separate appeals that suppression was not warranted even though the orders had been facially deficient. The court of appeals agreed that the orders were extraterritorial and thus facially insufficient. But the court interpreted 18 U.S.C. § 2518(10)(a)(ii)—which provides for suppression of an intercepted communication if the authorizing order was “insufficient on its face”—to include an additional, unwritten requirement that, for suppression to occur, the facial insufficiency must result from a statutory violation that implicates a “core concern” underlying Title III. The court of appeals determined that Title III’s territorial-jurisdiction limitation did not implicate a core concern of Congress in enacting the statute, and thus held that evidence obtained pursuant to the facially insufficient orders should not be suppressed. The Supreme Court affirmed (8-0) on different grounds in an opinion delivered by Justice Breyer. Initially, the Court rejected the Tenth Circuit’s application of the core concerns test to subsection (ii). “Like the Dahdas, we believe that the Tenth Circuit’s interpretation of this provision is too narrow. The Tenth Circuit took the test it applied from this Court’s decision in United States v. Giordano, . . . [b]ut Giordano involved a different provision.” The statute sets forth three grounds for suppression: (i) the communication was unlawfully intercepted; (ii) the order of . . . approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. §2518(10)(a). Giordano focused not, as here, on the second subparagraph but on the first subparagraph, which calls for the suppression of ‘unlawfully intercepted’ communications. In Giordano, the Court held that the first subparagraph did cover certain statutory violations, such as those provisions that “implemented” the wiretap-related congressional concerns the Tenth Circuit mentioned in its opinion. So construed, the suppression provision left room for the second and third subparagraphs to have separate legal force. The Court went on to hold that a violation of the approval-by-the-Attorney-General provision implicated Congress’ core concerns. Subparagraph (i) thus covered that particular statutory provision. And, finding the

Prepared by Paul M. Rashkind 7 FDFCDC 88 provision violated, Giordano ordered the wiretap evidence suppressed. Here, by contrast, the Court focused upon subparagraph (ii), which requires suppression when an order is facially insufficient. And in respect to this subparagraph, the Supreme Court could find no good reason for applying Giordano’s test. The underlying point of Giordano’s limitation was to help give independent meaning to each of §2518(10)(a)’s subparagraphs. It thus makes little sense to extend the core concerns test to subparagraph (ii) as well. Doing so would “actually treat that subparagraph as ‘surplusage’—precisely what [this] Court tried to avoid in Giordano.” Thus, the Court concluded that subparagraph (ii) does not contain a Giordano- like “core concerns” requirement. The statute means what it says. That is to say, subparagraph (ii) applies where an order is “insufficient on its face.” §2518(10)(a)(ii). That said, the Court also disagreed with the Tenth Circuit’s conclusion about the illegality of the wiretap evidence at trial. The Court assumed the relevant sentence of the judge’s warrant exceeded the judge’s statutory authority. Yet, the Court noted that since none of the communications unlawfully intercepted outside the judge’s territorial jurisdiction were introduced at trial, the inclusion of the extra sentence had no significant adverse effect upon the Dahdas; after all, the remainder of each Order was itself legally sufficient, “so we conclude that the Orders were not ‘insufficient” on their “face.’” (Justice Gorsuch was named to be on one of the Tenth Circuit Dahda appellate panels before his confirmation, although the case was decided by a quorum of two judges in his absence. He elected to not participate in this case, which was heard by eight justices.)

II. FIFTH AMENDMENT

Double Jeopardy

Separate Sovereigns. Gamble v. United States, 138 S. Ct. 2707 (cert. granted June 28, 2018); decision below at 694 F. App’x 750 (11th Cir. 2017). The Fifth Amendment states that “No person shall . . . be twice put in jeopardy” “for the same offence.” Yet, Terance Martez Gamble has been subjected to two convictions and two sentences—one in state court and one in federal court— for the single offense of being a felon in possession of a firearm. As a result of the duplicative conviction, he must spend three additional years of his life behind bars. Gamble argues that the Double Jeopardy Clause prohibits that result and that existing Supreme Court precedent should be overruled. The fact that

Prepared by Paul M. Rashkind 8 FDFCDC 89 Gamble’s sentences were imposed by separate sovereigns— Alabama and the United States—should make no difference. He argues that the court-manufactured “separate sovereigns” exception—pursuant to which his otherwise plainly unconstitutional duplicative conviction was upheld—is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law. For precisely these reasons, Justices Ginsburg and Thomas have called for “fresh examination” of the exception. Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1877 (2016) (Ginsburg, J., concurring); see also id. (“The [validity of the exception] warrants attention in a future case in which a defendant faces successive prosecutions by parts of the whole USA.”). Question presented: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Double Jeopardy Following Acquittal at Severed Trial. Currier v. Virginia, 138 S. Ct. 2144 (June 22, 2018). The Double Jeopardy Clause protects the integrity of acquittals through the doctrine of issue preclusion, also known as collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 445 (1970); see also Bravo- Fernandez v. United States, 137 S. Ct. 352, 356 n.1 (2016) (preferring the term “issue preclusion” to “collateral estoppel”). Issue preclusion dictates that where a jury’s acquittal has necessarily decided an issue of ultimate fact in the defendant’s favor, the Double Jeopardy Clause bars the prosecution “from trying to convince a different jury of that very same fact in a second trial.” Bravo-Fernandez, 137 S. Ct. at 359. Here, Currier faced three charges relating to the burglary of a home and theft of a safe containing cash and firearms: (i) breaking and entering, (ii) grand larceny, and (iii) possessing a firearm after being convicted of a felony. The firearm charge was based on the theory that he had briefly handled the guns inside the safe. In Virginia, evidence that a defendant has committed crimes other than the offense for which he is being tried is highly prejudicial and generally inadmissible. Therefore, “unless the Commonwealth and defendant agree to joinder, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction. The parties acceded to that procedure here. Trying all three charges simultaneously would have unduly prejudiced petitioner by bringing his prior convictions to the attention of the jury to which the breaking-and-entering and grand larceny charges would be tried. Accordingly, the trial court severed the felon-in-possession

Prepared by Paul M. Rashkind 9 FDFCDC 90 charge from the other two charges. The Commonwealth elected to first try Currier for breaking and entering and grand larceny. Notably, due to a discovery violation, the trial court excluded from evidence a DNA report connecting Currier to a cigarette butt found in the pickup truck used in the theft. In the end, both the prosecution and defense agreed that the sole issue before the jury was whether Currier was involved in stealing the safe. The prosecutor argued to the jury: “What is in dispute? Really only one issue and one issue alone. Was the defendant, Michael Currier, one of those people that was involved in the offense?” He was acquitted of breaking and entering and larceny charges. He then argued that he couldn’t be tried on the question of whether he had a gun during a burglary because, as the jury had found, he hadn’t taken part in the burglary. The trial court rejected his challenge. Given the second opportunity to convince a jury of Currier’s involvement in the break-in and theft, the Commonwealth modified its presentation in two ways: (1) its key witnesses refined their testimony and redelivered it with greater poise; and (2) the Commonwealth corrected its procedural error from the first trial by successfully introducing into evidence the cigarette butt found in the back of the pickup truck—thereby confirming that Currier had at some point been in the truck used to steal the safe. This time, the jury found Currier guilty and sentenced him to five years in prison. Currier moved to set aside the verdict on double jeopardy grounds. Virginia courts rejected his challenge. The Supreme Court affirmed, rejecting his double jeopardy challenge (5-4) in an opinion written by Justice Gorsuch (joined by C.J. Roberts, Thomas, Alito, and Kennedy (in part)). The majority held that because Currier consented to have the charges tried separately, his trial and conviction on the felon-in- possession charge did not violate the Double Jeopardy Clause (Parts I and II of Gorsuch’s opinion). The majority determined that consenting to multiple trials waives not only the protection against multiple trials but also the protection against re- litigation of an issue following an acquittal (an Ashe v. Swenson issue). Justice Kennedy, who provided the deciding fifth vote, would have ended the inquiry there. A plurality of the Court went further, setting forth broader grounds for the ruling. In Part III of his opinion, Gorsuch (with Roberts, Thomas and Alito) questioned whether re-litigating an issue after acquittal violates double jeopardy at all—directly challenging Ashe’s constitutional issue-preclusion. For them, issue preclusion is a doctrine related to civil litigation that should not be imported into criminal cases. Justice Ginsburg dissented (with Breyer, Sotomayor, and

Prepared by Paul M. Rashkind 10 FDFCDC 91 Kagan), providing a detailed background of the principles and protections involved, and the confusion caused by the majority/plurality decision.

Shackling of Defendants in Court. United States v. Sanchez-Gomez, 138 S. Ct. 1532 (May 14, 2018). Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the district court denied relief. On appeal the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision: Three defendants had pleaded guilty and been sentenced, while the case against the fourth defendant was dismissed as part of a deferred prosecution agreement. The government petitioned for certiorari and the Supreme Court agreed to decide only whether the case was moot before it was decided by the Ninth Circuit, or to put it somewhat differently: Whether the appeals were saved from mootness either because the defendants sought “class- like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.” In a unanimous decision authored by Chief Justice Roberts, the Court rejected the applicability of those mootness-saving analogies, holding instead that the defendants’ appeals challenging the use of full restraints during nonjury pretrial proceedings became moot when their underlying criminal cases came to an end before the Ninth Circuit could render its decision.

III. Fourteenth Amendment Incorporation of Bill of Rights

Sixth Amendment: Unanimous Verdicts. Ramos v. Louisiana, 139 S. Ct. ___ (cert. granted Mar. 18, 2019); decision below at 231 So.3d 44 (La. App. 2017). Evangelisto Ramos was charged with second-degree murder. He was tried by a twelve-member jury. The State’s case against Mr. Ramos was based on purely circumstantial evidence. The prosecution did not present any eyewitnesses to the crime. Some of the evidence was susceptible of innocent explanation. After deliberating, ten jurors found that that the government had proven its case against Ramos. However, two jurors concluded that the government had failed to prove Ramos guilty beyond a reasonable doubt. Notwithstanding the different jurors’ findings, under Louisiana’s non-unanimous jury verdict law, a guilty verdict was entered. Ramos was sentenced to spend the remainder of his life in prison without the possibility of parole. Ramos challenged the non-unanimous verdict law in state court. On appeal, the Court of Appeal noted that “some of the evidence may be susceptible of innocent explanation,” yet, it rejected his challenge, concluding that “non-unanimous twelve-person jury verdicts are constitutional, . . . .” Ramos petitioned the Supreme Court for cert, arguing that under the

Prepared by Paul M. Rashkind 11 FDFCDC 92 Sixth Amendment, a unanimous jury is required and this right should be incorporated to the states under the Fourteenth Amendment: “The vast majority of the Bill of Rights have been fully incorporated and made applicable to the states through the Fourteenth Amendment. The Fourteenth Amendment should incorporate the Sixth Amendment’s guarantee of a unanimous jury because a) this Court has made clear that the guarantees in the Bill of Rights must be protected regardless of their current functional purpose; b) this Court has rejected the notion of partial incorporation or watered down versions of the Bill of Rights, and c) Louisiana’s non-unanimous jury rule was adopted as part of a strategy by the Louisiana Constitutional Convention of 1898 to establish white supremacy.” The Supreme Court granted cert. Question presented: Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?

Eighth Amendment: Excessive Fines Clause. Timbs v. Indiana, 139 S. Ct. 682 (Feb. 20, 2019). Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction- treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. 84 N. E. 3d 1179 (2017). The Indiana Supreme Court did not decide whether the forfeiture would be excessive. Instead, it held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions. Timbs sought cert, arguing that the Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. The Supreme Court granted certiorari and reversed in a unanimous opinion authored by Justice Ginsburg. “Like the Eighth

Prepared by Paul M. Rashkind 12 FDFCDC 93 Amendment’s proscriptions of ‘cruel and unusual punishment’ and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is ‘fundamental to our scheme of ordered liberty,’ with ‘dee[p] root[s] in [our] history and tradition.’ McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.”

Eighth Amendment: Abrogation of Insanity Defense. Kahler v. Kansas, 139 S. Ct. ___ (cert. granted Mar. 18, 2019); decision below at 410 P.3d 105 (Kan. 2018). In Kansas, along with four other states (Alaska, Idaho, Montana, and Utah), it is not a defense to criminal liability that mental illness prevented the defendant from knowing his actions were wrong. So long as he knowingly killed a human being— even if he did it because he believed the devil told him to, or because a delusion convinced him that his victim was trying to kill him, or because he lacked the ability to control his actions—he is guilty. Petitioner argues that this rule defies a fundamental, centuries-old precept of our legal system: “People cannot be punished for crimes for which they are not morally culpable. Kansas’s rule therefore violates the Eighth Amendment’s prohibition of cruel and unusual punishments and the Fourteenth Amendment’s due process guarantee.” Even a capital murder defendant need not be of sound mind. Yet, state statutes abolishing the M’Naughten Rule (or a variant of it) have been upheld by those five states. The Supreme Court granted cert. in response to Kahler’s petition asking the Supreme Court to determine the question reserved in Clark v. Arizona: Whether “the Constitution mandates an insanity defense.” 548 U.S. 735, 752 n.20 (2006); see Delling v. Idaho, 133 S. Ct. 504, 506 (2012) (Breyer, J., joined by Ginsburg & Sotomayor, JJ., dissenting from denial of certiorari) (urging review of this question). Question presented: Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

IV. CRIMES

Federal Preemption of State Prosecutions. Kansas v. Garcia, Morales and Ochoa-Lara 139 S. Ct. ___ (cert. granted Mar. 18, 2019) (petition by Kansas as to three separate criminal prosecutions); decisions below at 401 P.3d 588 (Kan. 2017). In 1986, Congress enacted the Immigration Reform and Control Act (IRCA), which made it illegal to employ unauthorized aliens, established an employment eligibility verification system, and created various civil and criminal penalties against employers who violate the law. 8 U.S.C. § 1324a. Regulations implementing IRCA created a “Form I-9” that employers are required to

Prepared by Paul M. Rashkind 13 FDFCDC 94 have all prospective employees complete—citizens and aliens alike. IRCA contains an “express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens,” Arizona v. United States, 567 U.S. 387, 406 (2012), but IRCA “is silent about whether additional penalties may be imposed against the employees themselves.” IRCA also provides that “[the Form I-9] and any information contained in or appended to such form, may not be used for purposes other than enforcement of [chapter 12 of Title 8] and sections 1001, 1028, 1546, and 1621 of Title 18.” 8 U.S.C. § 1324a(b)(5). Here, Respondents used other peoples’ social security numbers to complete documents, including a Form I-9, a federal W-4 tax form, a state K-4 tax form, and an apartment lease. Kansas prosecuted Respondents for identity theft and making false writings without using the Form I-9, but the Kansas Supreme Court held that IRCA expressly barred these state prosecutions. This petition presents two questions: (1) Whether IRCA expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) If IRCA bars the States from using all such information for any purpose, whether Congress has the constitutional power to so broadly preempt the States from exercising their traditional police powers to prosecute state law crimes.

Oklahoma Tribal Jurisdiction. Carpenter, Interim Warden v. Murphy, 138. S. Ct. 2026 (cert. granted May 21, 2018; Justice Gorsuch recused); decision below at 875 F.3d 896 (10th Cir. 2017). The Tenth Circuit held that Oklahoma lacks jurisdiction to prosecute a capital murder committed in eastern Oklahoma by a member of the Creek Nation. The panel held that Congress never disestablished the 1866 boundaries of the Creek Nation, and all lands within those boundaries are therefore “Indian country” subject to exclusive federal jurisdiction under 18 U.S.C. § 1153(a) for serious crimes committed by or against Indians. In its cert. petition, the state argues that this holding has already placed a cloud of doubt over thousands of existing criminal convictions and pending prosecutions. To put this holding into perspective, the former Creek Nation territory encompasses 3,079,095 acres and most of the City of Tulsa. Moreover, other litigants have invoked the decision below to reincarnate the historical boundaries of all “Five Civilized Tribes”—the Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles. This combined area encompasses the entire eastern half of the state. According to the state, the decision thus threatens to effectively redraw the map of Oklahoma. The state also

Prepared by Paul M. Rashkind 14 FDFCDC 95 contends that prisoners have begun seeking post-conviction relief in state, federal, and even tribal court, contending that their convictions are void ab initio; and that civil litigants are using the decision to expand tribal jurisdiction over non-members. Question presented: Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

ACCA

Florida Robbery as a “Violent Felony” Under ACCA. Stokeling v. United States, 139 S. Ct. 544 (Jan. 15, 2019). Robbery under Florida law is a violent felony under the ACCA, even though Florida court decisions have virtually dispensed with a physical force requirement. In a 5-4 decision authored by Justice Thomas, the Court held: “This case requires us to decide whether a robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of ‘physical force’ within the meaning of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i). We conclude that it does.” The majority’s holding significantly diluted the Court’s earlier opinion in Curtis Johnson. In Johnson v. United States, 559 U.S. 133, 140 (2010), the Court defined “physical force” as a quantity of “force capable of causing physical pain or injury,” adding words such as “severe,” “extreme,” “furious,” or “vehement” to define “physical force.” In its majority decision here the Court limited it reading of Johnson, holding that “Johnson [] does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality.” Applying this definition, the Court held that “the elements clause encompasses robbery offenses that require the criminal to overcome the victim’s resistance.” The Court ruled that Florida robbery is one of these offenses because it requires an “amount of force necessary to overcome a victim’s resistance,” even though Florida robbery only requires force “however slight” to overcome that resistance. The majority’s holding concludes that the term “physical force” in the ACCA was meant to “encompass[] the degree of force necessary to commit common-law robbery.” That included the quantity of force necessary to “pull a diamond pin out of a woman’s hair when doing so tore away hair attached to the pin.” Justice Thomas’s opinion was joined by Breyer, Alito, Gorsuch & Kavanaugh. Justice Sotomayor dissented (joined by Roberts, Ginsburg & Kagan). The dissent claims the majority “distorts” the “physical force” definition laid out earlier by the Court in

Prepared by Paul M. Rashkind 15 FDFCDC 96 Johnson, as it requires “only slight force.” Noting that under Florida law “[i]f the resistance is minimal, the force need only be minimal as well,” the dissenting opinion cites to Florida cases where the “force element . . . is satisfied by a [thief] who attempts to pull free after the victim catches his arm,” “pulls cash from a victim’s hand by ‘peel[ing] [his] fingers back,’” “grabs a bag from a victim’s shoulder . . ., so long as the victim instinctively holds on to the bag’s strap for a moment,” and “caus[es] a bill to rip while pulling cash from a victim’s hand.” Furthermore, “as anyone who has ever pulled a bobby pin out of her hair knows, hair can break from even the most minimal force.” The dissenters would not predicate a 15-year mandatory minimum sentence on such conduct and find that by so doing the Court leaves in the dark a common-sense understanding of robbery, Congressional intent to impose an enhanced penalty on offenders with prior “violent” felonies, and its prior decision in Johnson.

Burglary of Nonpermanent or Habitable Mobile Structure as “Violent Felony” Under ACCA. United States v. Stitt, 139 S. Ct. 399 (Dec. 10, 2018). Two defendants, Stitt and Sims, challenged state burglary convictions used as ACCA predicates that were bottomed on allegedly non-generic burglary laws. Stitt was convicted under a Tennessee statute defining burglary as “burglary of a habitation,” and defining “habitation” as any “structure” or “vehicle . . . designed or adapted for overnight accommodation.” Sims was convicted under an Arkansas statute prohibiting burglary of a residentially occupiable structure, including a “vehicle, building, or other structure . . . customarily used for overnight accommodation of persons.” In a decision authored by Justice Breyer, the Court unanimously rejected the claim that these statutes do not qualify as predicates: “The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons convicted of unlawfully possessing a firearm a 15-year minimum prison term. The judge is to impose that special sentence if the offender also has three prior convictions for certain violent or drug-related crimes. 18 U.S.C. § 924(e). Those prior convictions include convictions for ‘burglary.’ § 924(e)(2)(B)(ii). And the question here is whether the statutory term ‘burglary’ includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. We hold that it does.” The Court held that Congress intended for ACCA to apply to generic burglaries as defined by most states at the time the law was passed; it found that a majority of states at that time applied it to vehicles adapted or customarily used for lodging. On

Prepared by Paul M. Rashkind 16 FDFCDC 97 the other hand, the Court agreed that generic burglary does not apply to statutes covering any boat, vessel, or railroad car without the customary lodging caveat (laws that would apply whether or not the vehicle or structure is customarily used for overnight accommodations). Both defendants had been successful in the court of appeals and the Supreme Court reversed both cases, but Sims’s case was remanded for consideration of his additional claim that was never ruled on below: The statute in his case includes burglary of a vehicle “in which any person lives,” which seemingly covers an automobile in which a homeless person sleeps occasionally (a broader definition than “customarily used for overnight accommodations”).

Requisite Intent Under ACCA for Home Invasion. Quarles v. United States, 139 S. Ct. 914 (cert. granted Jan. 11, 2019); decision below at 850 F.3d 856 (6th Cir. 2017). The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory fifteen- year prison term upon any convicted felon who unlawfully possesses a firearm and who has three or more prior convictions for any “violent felony or * * * serious drug offense.” The definition of a “violent felony” includes a burglary conviction that is punishable by imprisonment for a term exceeding one year. See § 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S. 575 (1990), this Court held that § 924(e) uses the term “burglary” in its generic sense, to cover any crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 598- 599. The question presented is: Whether (as two circuits hold) Taylor’s definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, or whether (as the court below and three other circuits hold) it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure.

Johnson and 924(c). United States v. Davis, 139 S. Ct. 782 (cert. granted Jan 4, 2019); decision below at 903 F.3d 483 (5th Cir. 2018). The Supreme Court has granted cert. to resolve the circuit conflict over the application of Johnson’s holding to 924(c)’s residual clause. Question presented: Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.

Prepared by Paul M. Rashkind 17 FDFCDC 98 Requisite Proof Under § 922(g)(5) for Undocumented Alien Knowingly Possessing Firearm. Rehaif v. United States, 139 S. Ct. 914 (cert. granted Jan. 11, 2019); decision below at 868 F.3d 907 (11th Cir. 2017). Rehaif is a citizen of the UAE who overstayed his student visa. He was convicted under § 922(g)(5) for unlawful possession of a firearm and ammunition by an undocumented immigrant. At trial, the court instructed the jury that the government is not required to prove that the defendant knew that he was “illegally or unlawfully in the United States” at the time he possessed the firearm and ammunition. The Eleventh Circuit affirmed his conviction. Question presented: Whether the “knowingly” provision of 18 USC § 924(a)(2) applies to both the possession and status elements of an offense under § 922(g), or whether it applies only to the possession element.

V. SENTENCING

Mandatory Career Offender Guidelines Post-Johnson & Beckles. Brown v. United States, 139 S. Ct. 14 (cert. denied Oct. 15, 2018). Petitioners in a series of cases argued that the pre-Booker mandatory career offender guidelines suffered from the same unconstitutional vagueness that Johnson found in the residual clause of ACCA. The question had seemingly been left open by the Court’s decision in Beckles, which addressed the question as it relates to advisory guidelines, post- Booker. The Supreme Court denied cert. in each of the cases. Only two justices—Sotomayor and Ginsburg—dissented from the Court’s denial of certiorari. Justice Sotomayor’s dissent explains that the refusal to grant cert. “all but ensures that the question will never be answered”: “Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences. They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision. These petitioners argue that their sentences, too, are unconstitutional. This important question, which has generated divergence among the lower courts, calls out for an answer.” The dissent explains the significant circuit conflict on the issue: “The question for a petitioner like Brown [ ] is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no. See 868 F.3d 297 (CA4 2017) (case below); Raybon v. United States, 867 F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d 1241 (CA10 2018). One Court of Appeals has said yes. See Cross v. United States, 892 F.3d 288 (CA7 2018). Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly. See Moore v. United States, 871

Prepared by Paul M. Rashkind 18 FDFCDC 99 F.3d 72, 80–84 (CA1 2017); see also United States v. Roy, 282 F.Supp.3d 421 (Mass. 2017); United States v. Roy, Withdrawal of Appeal in No. 17-2169 (CA1). One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness. See In re Griffin, 823 F.3d 1350, 1354 (CA11 2016).” The dissent strongly suggests that one reason cert. was denied is a related timeliness concern for these underlying 2255 petitions for collateral relief, a concern that the dissent refutes: “Federal law imposes on prisoners seeking to mount collateral attacks on final sentences ‘[a] 1-year period of limitation . . . from the latest of’ several events. See 28 U.S.C. § 2255(f ). One event that can reopen this window is this Court ‘newly recogniz[ing]’ a right and making that right ‘retroactively applicable to cases on collateral review.’ §2255(f)(3). The right recognized in the ACCA context in Johnson, we have held, is retroactive on collateral review. Welch v. United States, 578 U.S. ___, ___ (2016) (slip op., at 9).” Although the dissent rejects this timeliness concern, it seemingly lies at the heart of the cert. denial by the balance of the justices.

Retroactive Reduction of Applicable Sentencing Guidelines Under 18 U.S.C. § 3582(c)(2)

Eligibility Following Rule 11(c)(1)(C) Sentence. Hughes v. United States, 138 S. Ct. 1765 (June 4, 2018). Is a defendant who enters into an agreed sentence under Fed. R. Crim. P. 11(c)(1)(C) eligible for a later sentence reduction based on a retroactively applicable change in the Sentencing Guidelines, under § 3582(c)(2)? In a 6-3 decision authored by Justice Kennedy, the Court held that such a defendant is eligible for § 3582(c) relief, clarifying confusion about its prior plurality opinion in Freeman v. United States. “The proper construction of federal sentencing statutes and the Federal Rules of Criminal Procedure can present close questions of statutory and textual interpretation when implementing the Federal Sentencing Guidelines. Seven Terms ago the Court considered one of these issues in a case involving a prisoner’s motion to reduce his sentence, where the prisoner had been sentenced under a plea agreement authorized by a specific Rule of criminal procedure. Freeman v. United States, 564 U.S. 522 (2011). The prisoner maintained that his sentence should be reduced under 18 U.S.C. § 3582(c)(2) when his Guidelines sentencing range was lowered retroactively. 564 U.S., at 527–528 (plurality opinion). No single interpretation or rationale in Freeman commanded a majority of the Court. The courts of appeals then confronted the question of what principle or principles considered in Freeman controlled when an opinion by four Justices and a concurring opinion by a single Justice had

Prepared by Paul M. Rashkind 19 FDFCDC 100 allowed a majority of this Court to agree on the judgment in Freeman but not on one interpretation or rule. The application and construction of seemingly competing Supreme Court precedent is highlighted by the detailed question presented by petitioner: ‘This Court explained in Marks v. United States, 430 U.S. 188, 193 (1977), that ‘[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”’” For further guidance on similar questions involving the same statute and rule, courts turned to this Court’s opinion in Marks v. United States, 430 U.S. 188 (1977). Some courts interpreted Marks as directing them to follow the ‘narrowest’ opinion in Freeman that was necessary for the judgment in that case; and, accordingly, they adopted the reasoning of the opinion concurring in the judgment by JUSTICE SOTOMAYOR.” The Marks rule, though, has been subject to great criticism because it seemingly allows the Court’s holding to be determined by a single justice with whom eight other justices disagree. The Court found no need to alter the Marks rule for construing plurality opinions in this case. Instead, the majority here found that the district court accepted Hughes’s Type-C agreement after concluding that a 180-month sentence was consistent with the Sentencing Guidelines. The court then calculated Hughes’ sentencing range and imposed a sentence that the court deemed “compatible” with the Guidelines. Thus, the sentencing range was a basis for the sentence that the district court imposed. That range has “subsequently been lowered by the Sentencing Commission,” so Hughes is eligible for relief under § 3582(c)(2). In so ruling, the majority rejected the government’s “recycled” Freeman arguments to the contrary. Justice Sotomayor concurred, adhering to her Freeman concurrence, but acknowledging that her concurrence in that case led to unsettled law, so she now joins the majority decision in full in order to settle the legal precedent. Chief Justice Roberts dissented, joined by Thomas and Alito, and in the end recommended that the government can obviate this holding by obtaining waivers of future § 3582(c) relief as a condition of a Type-C plea agreement.

Ineligibility Following Substantial Assistance Sentence. Koons v. United States, 138 S. Ct. 1783 (June 4, 2018). In a unanimous decision, written by Justice Alito, the Court held that a defendant is not eligible for § 3582(c) relief in a drug case with a mandatory minimum sentence even if he was sentenced lower

Prepared by Paul M. Rashkind 20 FDFCDC 101 based upon substantial assistance. “Under 18 U.S.C. § 3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced ‘based on a sentencing range’ that was later lowered by the United States Sentencing Commission. The five petitioners in today’s case claim to be eligible under this provision. They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders. We hold that petitioners’ sentences were ‘based on’ their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for § 3582(c)(2) sentence reductions. The government had asked the Court to go further in its ruling, applying it to any sentence with a mandatory minimum, but the Court declined, in footnote 1: “The Government argues that defendants subject to mandatory minimum sentences can never be sentenced ‘based on a sentencing range’ that the Commission has lowered, 18 U.S.C. § 3582(c)(2), because such defendants’ ‘sentencing range[s]’ are the mandatory minimums, which the Commission has no power to lower. . . . We need not resolve the meaning of ‘sentencing range’ today.”

Explanation for Denial of Relief. Chavez-Meza v. United States, 138 S. Ct. 1959 (June 18, 2018). This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines. Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the district judge reduced his original sentence from 135 months’ imprisonment to 114 months. Believing he should have obtained a yet greater reduction, Chavez-Meza argued that the district judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence. The Tenth Circuit held that the judge’s explanation was adequate. In a 5-3 decisions authored by Justice Breyer (Gorsuch recused), the Supreme Court agreed with the court of appeals. The Court noted that at the defendant’s initial sentencing he sought a variance from the Guidelines range (135 to 168 months) on the ground that his history and family circumstances warranted a lower sentence. The judge denied his request. In doing so, the judge noted that he had “consulted the sentencing factors of 18 U.S.C. 3553(a)(1).” He explained that the

Prepared by Paul M. Rashkind 21 FDFCDC 102 “reason the guideline sentence is high in this case, even the low end of 135 months, is because of the [drug] quantity.” He pointed out that the defendant had “distributed 1.7 kilograms of actual methamphetamine,” a “significant quantity.” And he said that “one of the other reasons that the penalty is severe in this case is because of methamphetamine.” He elaborated this latter point by stating that he had “been doing this a long time, and from what [he] gather[ed] and what [he had] seen, methamphetamine, it destroys individual lives, it destroys families, it can destroy communities.” This record was before the judge when he considered petitioner’s request for a sentence modification. He was the same judge who had sentenced petitioner originally. Petitioner asked the judge to reduce his sentence to 108 months, the bottom of the new range, stressing various educational courses he had taken in prison. The government pointed to his having also broken a moderately serious rule while in prison. The judge certified (on a form) that he had “considered” petitioner’s “motion” and had “tak[en] into account” the relevant Guidelines policy statements and the § 3553(a) factors. He then reduced the sentence to 114 months. The Court’s majority held that the record as a whole strongly suggests that the judge originally believed that, given petitioner’s conduct, 135 months was an appropriately high sentence. “So it is unsurprising that the judge considered a sentence somewhat higher than the bottom of the reduced range to be appropriate. As in Rita, there was not much else for the judge to say.” Justice Kennedy dissented (joined by Sotomayor and Kagan) because merely checking a box on the current form AO-247 does not allow for meaningful appellate review of the decision, and he recommended changes to expand on that form. “My disagreement with the majority is based on a serious problem—the difficulty for prisoners and appellate courts in ascertaining a district court’s reasons for imposing a sentence when the court fails to state those reasons on the record; yet, in the end, my disagreement turns on a small difference, for a remedy is simple and easily attained. Just a slight expansion of the AO–247 form would answer the concerns expressed in this dissent in most cases, and likely in the instant one.”

Supervised Release

Mandatory Minimum Sentence for Supervised Release Violation. United States v. Haymond, 139 S. Ct. 398 (cert. granted Oct. 26, 2018); decision below at 69 F.3d 1153 (10th Cir. 2017). Haymond was originally convicted of one count of

Prepared by Paul M. Rashkind 22 FDFCDC 103 possession and attempted possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district court sentenced him to 38 months of imprisonment, to be followed by ten years of supervised release. Following his release from prison, Haymond was charged with violating his supervised release by viewing child pornography. The determination was made by a preponderance of evidence, not beyond a reasonable doubt. The district court applied 18 U.S.C. § 3583(k) to Haymond’s violation, requiring revocation of supervised release and reimprisonment for at least five years on a finding that a defendant like Haymond has violated supervised release. Finding “no factor present that warrant[ed]” reimprisonment beyond the required five years, the district court ordered Haymond to return to prison for five years, to be followed by five years of supervised release. See 18 U.S.C. § 3583(h) (allowing for a term of supervised release to follow reimprisonment). However, the court noted its “serious concerns about” the requirement that Haymond return to prison for at least five years. The court of appeals affirmed the revocation of supervised release, but vacated the order of reimprisonment and remanded. A majority of the appellate panel concluded that the case should be remanded for further proceedings in which only 18 U.S.C. § 3583(e)(3), and not § 3583(k), would apply to the district court’s imposition of additional consequences for the supervised release violation. The majority excised, as “unconstitutional and unenforceable,” the final two sentences of Section 3583(k), which require revocation of supervised release and reimprisonment for at least five years on a finding that a particular type of defendant has violated. In the majority’s view, § 3583(k) “violates the Fifth and Sixth Amendments” for two reasons: (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. The majority concluded that § 3583(k) “violates the Sixth Amendment” under United States v. Booker, 543 U.S. 220 (2005), which applied Apprendi to the federal Sentencing Guidelines. The majority reasoned that “[b]y requiring a mandatory term of reimprisonment, 18 U.S.C. § 3583(k) increases the minimum sentence to which a defendant may be subjected.” The court of appeals observed that “when [respondent] was originally convicted by a jury, the sentencing judge was authorized to impose a term of imprisonment between zero and ten years.”

Prepared by Paul M. Rashkind 23 FDFCDC 104 (citing 18 U.S.C. § 2252(b)(2)). The court further observed that “[a]fter the judge found, by a preponderance of the evidence” that respondent had violated a condition of his supervised release, Section 3583(k) required respondent to serve “a term of reincarceration of at least five years.” In the majority’s view, “[t]his unquestionably increased the mandatory minimum sentence of incarceration to which Haymond was exposed from no years to five years,” thereby “chang[ing] his statutorily prescribed sentencing range” without a jury finding beyond a reasonable doubt. As to the second rationale for its constitutional holding, the court of appeals did not dispute that “committing any crime” could permissibly result in respondent’s reimprisonment for up to two years under Section 3583(e)(3). But the court took the view that § 3853(k) “impermissibly requires a term of imprisonment based * * * on the commission of a new offense—namely ‘any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed.’” (quoting 18 U.S.C. § 3583(k)). The majority reasoned that “[b]y separating [certain] crimes from other violations, § 3583(k) imposes a heightened penalty” that does not depend on the original offense, and “must be viewed, at least in part, as” imposing “punishment for the subsequent conduct” rather than the original offense. Viewed in that manner, the court concluded, Section 3583(k) invites the double-jeopardy and jury-trial concerns that the Supreme Court has previously avoided by treating supervised-release revocation as punishment for the original offense. The government petitioned for cert, arguing that the majority’s holding that the invalidated provisions cannot constitutionally be applied is premised on a novel interpretation of the Fifth and Sixth Amendments (and the supervised-release statute itself) at odds with their text and history, the precedents of the Supreme Court, and the statements of other courts of appeals. “Nothing in the Constitution requires jury findings beyond a reasonable doubt as a prerequisite to the implementation or administration of a previously imposed sentence.” Question presented: Whether the court of appeals erred in holding unconstitutional and unenforceable the portions of 18 U.S.C. § 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography.

Prepared by Paul M. Rashkind 24 FDFCDC 105 Tolling Supervised Release Term. Mont v. United States, 139 S. Ct. 451 (cert. granted Nov. 2, 2018); decision below at 723 F. App’x 325 (6th Cir. 2018). BOP and the Executive Branch interpret 18 U.S.C. § 3624(e) as allowing it to unilaterally suspend a term of supervised release pending pretrial detention for a new state arrest. The statute in question allocates authority to BOP during the custodial portion of the sentence, but does not cover the supervised release portion of a sentence. A different statute, 18 U.S.C § 3583, allocates to the district court the authority or impose a new term of supervised release. Nevertheless, Sixth Circuit precedent holds that a directive from BOP as to calculations of a prisoner’s release also controls that release after being placed under the supervision of the Judicial Branch. The Fourth, Fifth, and Eleventh Circuits agree. The Ninth and DC Circuits disagree, holding instead that § 3624(e) does not toll or affect the running of a supervised release term after the releasee is placed under the supervision of United States Probation. Question Presented: Is a district court required to exercise its jurisdiction in order to suspend the running of a supervised release sentence as directed under 18 U.S.C. § 3583(i) prior to expiration of the term of supervised release, when a supervised releasee is in pretrial detention, or does 18 U.S.C. § 3624(e) toll the running of supervised release while in pretrial detention?

Extent of Mandatory Restitution. Lagos v. United States, 138 S. Ct. 1684 (May 29, 2018). Under the Mandatory Victims Restitution Act (MVRA), courts must order the defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. § 3663A(b)(4). The Fifth Circuit held that this provision covers the costs of private internal investigations and private expenses that were “neither required nor requested” by the government; these private costs were incurred outside the government’s official investigation, and, indeed, were incurred before the government’s investigation even began. The Supreme Court reversed, in a unanimous opinion authored by Justice Breyer: “We must decide whether the words ‘investigation’ and ‘proceedings’ are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and criminal proceedings.”

Prepared by Paul M. Rashkind 25 FDFCDC 106 VI. DEATH PENALTY

Incompetency to be Executed

Vascular Dementia. Madison v. Alabama, 139 S. Ct. 718 (Feb. 27, 2019). Death row inmate Madison suffers vascular dementia, which prevents him from remembering the crimes for which he is scheduled to be executed. He previously obtained collateral relief that was reversed by the Supreme Court based on limitations in available remedies under AEDPA. The Supreme Court did not address the merits of his claims in the first case. On remand, his execution was scheduled on an expedited basis. Madison applied to the state circuit court to suspend entry of the death penalty due to his incompetency. That effort was denied. With no available appeal in the Alabama state courts, Madison filed a petition for writ of certiorari in the Supreme Court directed to the state trial court, this time “outside of the AEDPA context,” requesting that his execution be stayed and certiorari be granted to address the following two substantive questions: (1) Consistent with the Eighth Amendment, and this Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017) (Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring); (2) Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? The Court stayed the execution and granted certiorari. In a 6-3 decision authored by Justice Kagan, the Court answered the two questions (“No” and “Yes”—consistent with the parties’ newfound agreement in the Supreme Court), but remanded to the state court to apply those answers to the ultimate resolution of whether Madison can be executed. “The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to

Prepared by Paul M. Rashkind 26 FDFCDC 107 the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion.” Justice Alito dissented, joined by Thomas and Gorsuch; Kavanaugh did not participate in the decision.

Intellectual Disability. Moore v. Texas, 139 S. Ct. 666 (Feb. 19, 2019) (per curiam). Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed fact findings and determined that, under the Supreme Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief. The Texas Court of Criminal Appeals declined to adopt the judgment recommended by the state habeas court. In the court of appeals’ view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the Texas Court of Criminal Appeals in Ex parte Briseno, 135 S.W.3d 1 (2004). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. The U.S. Supreme Court vacated that ruling in 2017 in a 5-3 decision authored by Justice Ginsburg: “As we instructed in Hall, adjudications of intellectual disability should be ‘informed by the views of medical experts.’ . . . That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of

Prepared by Paul M. Rashkind 27 FDFCDC 108 the [Texas Court of Criminal Appeals] untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors ‘creat[e]an unacceptable risk that persons with intellectual disability will be executed,’ . . . Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.” Chief Justice Roberts dissented, joined by Justices Thomas and Alito. Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18). The state appeals court subsequently reconsidered the matter on remand but reached the same conclusion. Ex parte Moore, 548 S. W. 3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II). Moore filed a second cert. petition, challenging that conclusion. Notably, the prosecutor, the district attorney of Harris County, agreed with Moore that he is intellectually disabled and cannot be executed. Moore also had amicus support from the American Psychological Association, the American Bar Association, and other amici. The Texas Attorney General persisted, however, filing a motion to intervene in the current cert. proceeding, and arguing that relief should be denied. The Supreme Court reversed the second determination (and denied the Attorney General’s motion to intervene) in a per curiam decision from which three justices dissented (Alito, Thomas and Gorsuch). The Chief Justice, who dissented from the Court’s original decision, this time filed a concurrence to the reversal, explaining his apparent change of heart. “When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U.S. 304 (2002), lacked clarity. Moore v. Texas, 581 U.S. ___, ___–___ (2017) (slip op., at 10–11). It still does. But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here. On remand, the court repeated the same errors that this Court previously condemned—if not quite in haec verba, certainly in substance. The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W. 3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits. That did not pass muster under this Court’s analysis last time. It still doesn’t.”

Method of Execution. Bucklew v. Precythe, 139 S. Ct. ___ (Apr. 1, 2019). Russell Bucklew was scheduled for execution on March 20 by a method that he alleged is very likely to cause him needless suffering because he suffers from a rare disease, cavernous hemangioma. The disease is progressive, and has caused unstable, blood-filled tumors to

Prepared by Paul M. Rashkind 28 FDFCDC 109 grow in his head, neck, and throat. Those highly sensitive tumors easily rupture and bleed. The tumor in his throat often blocks his airway, requiring frequent, conscious attention from Bucklew to avoid suffocation. His peripheral veins are also compromised. That means that the lethal drug cannot be administered in the ordinary way, through intravenous access in his arms. An expert who examined Bucklew concluded that while undergoing Missouri’s lethal injection protocol, Bucklew is “highly likely to experience . . . the excruciating pain of prolonged suffocation resulting from the complete obstruction of his airway.” As he struggles to breathe through the execution procedure, Bucklew’s throat tumor will likely rupture. “The resultant hemorrhaging will further impede Mr. Bucklew’s airway by filling his mouth and airway with blood, causing him to choke and cough on his own blood during the lethal injection process.” Bucklew’s execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection execution. He proposed an alternative lethal gas method of execution, which was rejected by the district court. In a 2-1 decision, a panel of the Eighth Circuit concluded that this execution is not cruel and unusual solely because, in its view, Bucklew failed to prove that his alternative method would substantially reduce his risk of needless suffering. The Supreme Court granted cert. and a stay of execution, but then affirmed the Eighth Circuit in a 5-4 decision authored by Justice Gorsuch (joined by Roberts, Thomas, Alito and Kavanaugh). The majority summarized its holding in the opening paragraph of Justice Gorsuch’s opinion: “Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes. He acknowledges that the U.S. Constitution permits a sentence of execution for his crimes. He accepts, too, that the State’s lethal injection protocol is constitutional in most applications. But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him. Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution. He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments. We can discern no lawful basis for doing so.” The majority held that two of its prior decisions govern all Eighth Amendment challenges, whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain. In Baze v. Rees, 553 U.S. 35 (2008) (plurality), the Court had held that a state’s refusal to alter its execution protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” And, in Glossip v. Gross, 576 U.S. ___ (2015)—which also held that the Baze plurality is controlling law—the

Prepared by Paul M. Rashkind 29 FDFCDC 110 Court held that an inmate must show his proposed alternative method of execution is not just theoretically feasible, but also readily implemented. The majority here held that Bucklew failed to satisfy the Baze-Glossip tests. In addition, the majority held that Bucklew failed to provide a detailed alternative means of execution that is both viable and likely to significantly reduce the substantial risk of severe pain. Justice Thomas concurred, but noted in a separate opinion his belief that punishment violates the Eighth Amendment only if it is deliberately designed to inflict pain. Justice Kavanugh concurred and in a separate opinion noted that a valid alternative means of execution need not necessarily be authorized by a state’s law—“all nine Justices today agree on that point.” Justice Breyer dissented (joined by in part by Ginsburg, Sotomayor and Kagan), and Justice Sotomayor filed her own dissent as well. The portion of Justice Breyer’s dissent in which he stands alone (part III) reasserts his oft-stated belief that the excessive delays caused by a condemned inmate’s legitimate constitutional challenges make it impossible for capital punishment to be constitutionally imposed.

Florida Death Penalty. Reynolds v. Florida, 139 S. Ct. 27 (cert. denied Nov. 13, 2018). Justices Breyer and Sotomayor wrote statements critical of the Court’s denial of certiorari. Justice Breyer’s statement begins: “This case, along with 83 others in which the Court has denied certiorari in recent weeks, asks us to decide whether the Florida Supreme Court erred in its application of this Court’s decision in Hurst v. Florida, 577 U.S. ___ (2016). In Hurst, this Court concluded that Florida’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence. The Florida Supreme Court now applies Hurst retroactively to capital defendants whose sentences became final after this Court’s earlier decision in Ring v. Arizona, 536 U.S. 584 (2002), which similarly held that the death penalty scheme of a different State, Arizona, violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence. The Florida Supreme Court has declined, however, to apply Hurst retroactively to capital defendants whose sentences became final before Ring. Hitchcock v. State, 226 So.3d 216, 217 (2017). As a result, capital defendants whose sentences became final before 2002 cannot prevail on a “Hurst-is- retroactive” claim.” After some discussion of Justice Breyer’s general concerns about the death penalty and its administration, he identified the key issue he and Justice Sotomayor believe is at the heart of these cases and that should be preserved and raised in future cases: “Although these cases do not squarely present the general question whether the Eighth Amendment requires jury sentencing, they do present a closely related question: whether

Prepared by Paul M. Rashkind 30 FDFCDC 111 the Florida Supreme Court’s harmless-error analysis violates the Eighth Amendment because it ‘rest[s] a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.’ Caldwell v. Mississippi, 472 U.S. 320, 328–329 (1985). For the reasons set out in JUSTICE SOTOMAYOR’s dissent, post, at 3–7, I believe the Court should grant certiorari on that question in an appropriate case. That said, I would not grant certiorari on that question here. In many of these cases, the Florida Supreme Court did not fully consider that question, or the defendants may not have properly raised it. That may ultimately impede, or at least complicate, our review.”

Conceding Guilt Over Client’s Objection. McCoy v. Louisiana, 138 S. Ct. 1500 (May 14, 2018). In Florida v. Nixon, 543 U.S. 175 (2004), the Supreme Court considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial “when [the] defendant, informed by counsel, neither consents nor objects.” In that case, defense counsel had several times explained to the defendant a proposed guilt-phase concession strategy, but the defendant was unresponsive. The Court held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, “[no] blanket rule demand[s] the defendant’s explicit consent” to implementation of that strategy. In contrast to Nixon, McCoy vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt. Yet the trial court permitted counsel, at the guilt phase of a capital trial, to tell the jury the defendant “committed three murders. . . . [H]e’s guilty.” He was convicted and his conviction affirmed. The Supreme Court reversed (6-3) in a decision authored by Justice Ginsburg. “We hold that a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right ‘to have the Assistance of Counsel for his defence,’ the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” Justice Alito dissented, joined by Thomas and Gorsuch, contending that the trial lawyer never really admitted his client’s guilt to first-degree murder, so this was not an apt case to decide the fundamental right set forth by the majority. “Instead, faced with overwhelming evidence that petitioner shot and killed the three victims, [the defense lawyer] admitted that petitioner

Prepared by Paul M. Rashkind 31 FDFCDC 112 committed one element of that offense, i.e., that he killed the victims. But [the lawyer] strenuously argued that petitioner was not guilty of first-degree murder because he lacked the intent (the mens rea) required for the offense. So the Court’s newly discovered fundamental right simply does not apply to the real facts of this case.”

VII. APPEALS

Fourth Prong of Plain Error Review. Rosales-Mireles v. United States, 138 S. Ct. 1897 (June 18, 2018). Rosales-Mireles pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326. The PSR calculated a total offense level of 21 and criminal history of 13 points, resulting in a criminal history category of VI = advisory guidelines range of 77 to 96 months’ imprisonment. The probation officer made a mistake, however, in calculating the criminal history score. The officer counted a 2009 Texas conviction of misdemeanor assault twice, assessing four criminal history points instead of two. Without the two extra erroneously applied criminal history points, Rosales’s criminal history category was V, yielding an advisory Guidelines range of 70 to 87 months. Counsel for Rosales instead requested a below-Guideline sentence of 41 months. Counsel argued that, under proposed amendments to the illegal reentry guideline, § 2L1.2, a 41-month sentence would be a within-Guidelines sentence. The district court denied the requested variance and sentenced Rosales to 78 months’ imprisonment. On appeal, Rosales argued that the district court plainly erred by calculating his Guidelines range based on double-counting the prior conviction in his criminal history. The government agreed that the district court committed a plain error. However, it argued that the error did not affect Rosales’s substantial rights, and that the court of appeals should not exercise its discretion to remedy the error. The court of appeals held that, by adding a total of four points to Rosales’s criminal history score based on the same conviction, the district court had committed a plain error. It also held that Rosales had satisfied the third prong of plain-error review. Without the criminal history error, Rosales’s Guidelines range would have been 70 to 87 months, rather than 77 to 96 months. And the district court did not explicitly and unequivocally indicate that it would have imposed the same sentence irrespective of the Guidelines range. Notwithstanding, the Fifth Circuit declared that it would not exercise its discretion under the fourth prong of plain error review to correct the error. The court of appeals described its exercise of discretion as occurring “only where ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” (quoting United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting United States v. Puckett, 556 U.S. 129, 135 (2009)). Such errors, the court said, are “‘ones that would shock the conscience of the common

Prepared by Paul M. Rashkind 32 FDFCDC 113 man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.’” (quoting United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014)). It found there to be “no discrepancy between the sentence and the correctly calculated range,” and thus “[w]e cannot say that the error or resulting sentence would shock the conscience.” The court of appeals thus affirmed. But, the Supreme Court reversed, 7-2 in an opinion by Justice Sotomayor. “Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal. This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence. The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.” Justice Thomas dissented (joined by Alito) because he sees the holding, as applied to an ordinary case, goes far beyond the specific question presented and contravenes what he sees as long- established principles of appellate review. The majority opinion, together with the dissent, clarify the burden of plain error review, making it a far less onerous standard of review.

VIII. IMMIGRATION

Cancellation of Removal. Pereira v. Sessions, 138 S. Ct. 2105 (June 21, 2018). Nonpermanent residents who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States, may be eligible for a form of discretionary relief known as cancellation of removal. 8 U.S.C. § 1229b(b)(1). Under the so- called “stop-time rule” set forth in § 1229b(d)(1)(A), however, that period of continuous physical presence is “deemed to end . . . when the alien is served a notice to appear under section 1229(a).” Section 1229(a), in turn, provides that the government shall serve noncitizens in removal proceedings with “written notice (in this section referred to as a ‘notice to appear’) . . . specifying” several required pieces of information, including “[t]he time and place at which the [removal] proceedings will be held.” § 1229(a)(1)(G)(i). The narrow question before the Supreme Court in this case lies at the intersection of those statutory provisions. If the government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The First Circuit held that the stop-time rule is triggered when the government serves a document that is labeled “notice to appear” but that

Prepared by Paul M. Rashkind 33 FDFCDC 114 lacks the “time and place” information required by the definition of a qualifying “notice to appear.” Its ruling disagreed with the Third Circuit but agreed with the Board of Immigration Appeals and other circuits. The Supreme Court reversed (8-1) in an opinion written by Justice Sotomayor. As to the question presented—Does the incomplete document stop-time?—the Court held that “[t]he answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not trigger the stop- time rule. The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.” Justice Kennedy concurred, agreeing with the majority opinion in full, but questioning the manner in which Chevron deference to administrative determinations has come to be understood and applied. Justice Alito dissented, at length, because he believes Chevron deference requires the Court to accept the government’s and BIA’s interpretation.

IX. COLLATERAL CONSEQUENCES

Sex Offender Registration & Notification Act – Nondelegation. Gundy v. United States, 138 S. Ct. 1260 (cert. granted Mar. 5, 2018); decision below at 695 Fed. App’x 639 (2d Cir. 2017). Congress did not determine SORNA’s applicability to individuals convicted of a sex offense prior to its enactment. Instead, 42 U.S.C. § 16913(d) delegated to the Attorney General the “authority to specify the applicability of the requirements of this title to sex offenders convicted before the enactment of this Act . . . .” The authority to legislate is entrusted solely to Congress. U.S. Const. Art. I §§ 1, 8. “Congress manifestly is not permitted to abdicate or transfer to others the legislative functions” with which it is vested. Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). This “nondelegation doctrine is rooted in the principle of separation of powers.” Mistretta v. United States, 488 U.S. 361, 371 (1989). While the nondelegation doctrine does not prevent Congress from “obtaining the assistance of its coordinate Branches,” it can do so only if it provides clear guidance. Id. at 372-73. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not forbidden delegation of legislative power.’” Question presented: Whether Congress violated the nondelegation doctrine by delegating to the Attorney General the authority to determine if SORNA’s registration requirements apply to offenders convicted prior to SORNA's enactment.

Prepared by Paul M. Rashkind 34 FDFCDC 115 X. COLLATERAL RELIEF: HABEAS CORPUS, §§ 2241, 2254 AND 2255

Retroactivity: Mandatory Life Without Parole for Juveniles. Mathena v. Malvo, 139 S. Ct. ___ (cert. granted Mar. 18, 2019); decision below at 893 F.3d 265 (4th Cir. 2018). This case involves the notorious serial murderers committed by the D.C. snipers. One of the two snipers, Lee Malvo was originally sentenced in 2004 to life without parole, even though he was a juvenile when the crime occurred. The life sentence was not mandatory under the sentencing statute. Eight years later, in Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Four years after that, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that “Miller announced a substantive rule of constitutional law” that, under Teague v. Lane, 489 U.S. 288 (1989), must be given “retroactive effect” in cases where direct review was complete when Miller was decided. The Fourth Circuit concluded that Virginia must resentence Malvo for crimes for which he was sentenced in 2004. The basis of that decision was the Fourth Circuit’s conclusion that Montgomery expanded the prohibition against “mandatory life without parole for those under the age of 18 at the time of their crimes” announced in Miller v. Alabama to include discretionary life sentences as well. Virginia’s highest court has adopted a diametrically opposed interpretation of Montgomery. In its view, Montgomery did not extend Miller to include discretionary sentencing schemes but rather held only that the new rule of constitutional law announced in Miller applied retroactively to cases on collateral review. See Jones v. Commonwealth, 795 S.E.2d 705, 721, 723 (Va.), cert. denied, 138 S. Ct. 81 (2017). The Supreme Court of Virginia acknowledged that prohibiting discretionary life sentences for juvenile homicide offenders may be the next step in the Supreme Court’s Eighth Amendment jurisprudence, but it concluded that both Montgomery and Miller “addressed mandatory life sentences without possibility of parole.” The question presented is: Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Prosecutor as Career Batson Offender. Flowers v. Mississippi, 139 S. Ct. 451 (cert. granted Nov. 2, 2018); decision below at 240 So.3d 1082 (Miss. 2018). Curtis Flowers has been tried six times for the same offense in Mississippi state court. Through the first four trials,

Prepared by Paul M. Rashkind 35 FDFCDC 116 prosecutor Doug Evans relentlessly removed as many qualified African American jurors as he could. He struck all ten African Americans who came up for consideration during the first two trials, and he used all twenty-six of his allotted strikes against African Americans at the third and fourth trials. (The fifth jury hung on guilt-or-innocence and strike information is not in the available record). Along the way, Evans was twice adjudicated to have violated Batson v. Kentucky—once by the trial judge during the second trial, and once by the Mississippi Supreme Court after the third trial. At the sixth trial Evans accepted the first qualified African American, then struck the remaining five. When Flowers challenged those strikes on direct appeal, a divided Mississippi Supreme Court affirmed, reviewing Evans’ proffered explanations for the strikes deferentially and without taking into account his extensive record of discrimination in this case. Flowers then sought review, asking: “Whether a prosecutor’s history of adjudicated purposeful race discrimination must be considered when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?” The Supreme Court responded by granting certiorari, vacating the Mississippi Supreme Court’s judgment, and remanding “for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016).” On remand, a divided Mississippi Supreme Court again affirmed. Over three dissents, the state court majority emphasized deference to the trial court, and insisted both that the “[t]he prior adjudications of the violation of Batson do not undermine Evans’ race neutral reasons,” and that “the historical evidence of past discrimination . . . does not alter our analysis . . . .” The state court majority then repeated, nearly word-for-word, its previous, history-blind evaluation of Evans’ strikes. Because a prosecutor’s personal history of verified, adjudicated discrimination is highly probative of both his propensity to discriminate and his willingness to mask that discrimination with false explanations at Batson’s third step, the barely altered question presented to the Supreme Court here is, “Whether a prosecutor’s history of adjudicated purposeful race discrimination may be dismissed as irrelevant when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?” In granting cert., the Supreme Court shortened and “limited” the question presented: “Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case.”

IAC: Failure to Appeal Following Plea Waiver. Garza v. Idaho, 139 S. Ct 738 (Feb. 27, 2019). In a 6-3 decision authored by Justice Sotomayor, the Court held that the presumptive prejudice standard applies where counsel fails to appeal following a guilty plea in which the defendant waives the right to appeal. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that when an attorney’s deficient

Prepared by Paul M. Rashkind 36 FDFCDC 117 performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed “with no further showing from the defendant of the merits of his underlying claims.” This case asks whether that rule applies even when the defendant has, in the course of pleading guilty, signed what is often called an “appeal waiver”—that is, an agreement forgoing certain, but not all, possible appellate claims. “We hold that the presumption of prejudice recognized in Flores-Ortega applies regardless of whether the defendant has signed an appeal waiver.”

A current edition of the UNITED STATES SUPREME COURT REVIEW-PREVIEW-OVERVIEW is available at http://www.fd.org and http://www.rashkind.com

Prepared by Paul M. Rashkind 37 FDFCDC 118 WRITING, WITH STYLE

John B. (“Jay”) McEntire

DISCUSSION OVERVIEW

I. “Channeling Mr. Rogers.”

Overview: On May 1, 1969, Fred Rogers testified before a senate subcommittee to save PBS from budget cuts. In just six minutes, Mr. Rogers turned the subcommittee from deep skeptics into passionate supporters. It was remarkable. In this part of the program, we’ll discuss how to blend the moral psychology Mr. Rogers relied into legal briefs to craft informative and persuasive talks—no matter the audience.

II. “Writing, with style.”

Overview: In this part of the program, we will cover easy-to-implement tips for improving written advocacy.

FDFCDC 119 Tip #1 – Aesthetics: We will examine how to de-clutter briefs and improve readability through 1) proper font selection, 2) monitoring sentence length, and 3) the proper location for citations. We will also discuss ALL-CAPS, initial-caps, underlining, full-justification, and other formatting habits.

Tip #2 – Emphasis: We will discuss how to manipulate sentences to place emphasis where it matters. This will include an exploration of how passive voice— yes, passive voice—can be used to strengthen your writing.

Tip #3 – Emphasis, of another variety: We will discuss manipulating space within your brief to create visual emphasis.

FDFCDC 120 Tip #4 – Visuals: We will discuss effective techniques for implementing visuals within briefs.

Tip #5 – Standing out: Most briefs blend together. We will discuss how to craft a brief that stands out using creative captions and introductions.

Tip #6 – Cohesion & coherence: We will discuss why a reader experiences “flow” (i.e., a brief reads smoothly), and how the stylistic concepts of cohesion and coherence create flow.

FDFCDC 121 Tip #7 – Headers: We will discuss how to craft informative headers that create global cohesion throughout your brief.

Tip #8 – Backgrounds: We will discuss the proper way to craft background sections.

FDFCDC 122 Tip Sheet #1 Editing checklist

Round 1 – Basic Aesthetics # √ Edits 1 Font is consistent throughout (footnotes, body, etc.). 2 Ensure all indentations (i.e., tabs) are consistent. 3 No full-justification. 4 No obnoxious emphasis. 5 No funky spacing before or after headers 6 No funky spacing before or after block quotes? 7 Use a single space between sentences. 8 Proper spacing for footnotes. 9 Footnote font is smaller than body font. 10 No initial-caps in headers. 11 No underlining anywhere. 12 No ALL CAPS anywhere. 13 No orphaned headers (i.e., a header at the end of the page). 14 Print your brief and read it. You will notice formatting issues you might have otherwise missed. 15 Font is serif-based 16 Clean first page 17 Mind your emphasis.

Round 2 – Argument Overview # √ Edits 1 Ensure each header is a complete sentence. 2 Ensure each header argues. 3 Ensure there is global cohesion across headers.

Round 3 – Introduction # √ Edits 1 Ensure the first few sentences stand out and grab the reader’s attention. 2 Before launching into the Playbook (i.e., why you win), make sure the reader has enough context on the issues at hand.

FDFCDC 123 Round 3 – Introduction 3 Ensure your Playbook articulates why you win. 4 Ensure your Playbook cites authority showing why you win. 5 Ensure your Playbook citations contain explanatory parentheticals so the readers understands why those cases support your argument.

Round 4 – Background # √ Edits 1 Chronology. Do you introduce your facts in chronological order? 2 Headers. Do you use enough headers to guide your reader through the background (assuming they are necessary at all)? 3 Footnotes. If citing to the record, are your citations in footnotes so as not to distract the reader? 4 Coherence. Are your paragraphs coherent (i.e., 1 point per paragraph)? 5 Sequencing. Does the order of your paragraphs make sense? 6 Cohesion. Are your sentences cohesive (i.e., old info to the left, new to the right)? 7 Voice. Do you need to switch from active to passive voice in select sentences in order to create cohesion?

Round 5 – Discussion # √ Edits 1 Roadmap. Do you lay out a roadmap for your reader before the discussion begins? Does your roadmap track your Playbook? 2 Topic sentences. Does the first sentence in each section build upon the header? 3 Coherence. Are your paragraphs coherent (i.e., 1 point per paragraph)? 4 Sequencing. Does the order of your paragraphs make sense? 5 Cohesion. Are your sentences cohesive (i.e., old info to the left, new to the right)? 6 Voice. Do you need to switch from active to passive voice in select sentences in order to create cohesion?

FDFCDC 124 Round 6 – Micro-Level Edits # √ Edits 1 Advance argument. Read each sentence. Does each sentence truly advance your through-line? 2 Sentence variation. Read each paragraph. Do you mix up sentence lengths? 3 Emphasis. Are you ending your sentences emphatically? (Tip: exaggerate the last word(s) in your sentence to see if the emphasis sounds strange.) 4 Ofs. Scan for “ofs.” Re-write and tighten. Volitional “of” choices are OK. 5 Lawyerisms. Did you banish all lawyerisms (e.g., pursuant to, in the instant case, prior to, due to the fact that, subsequent to, etc.)? 6 Nominalizations. Did you banish all nominalizations? 7 Tee-ups. Do your substantive case discussions have tee-ups? Do your block quotes have tee-ups? 8 Citations. Are your citations correct? Do you follow Bluebook? If you deviate, are the deviations intentional, logical, and consistent? Are your signals proper? Are your cases still good law? Are any direct quotes double- checked for accuracy? 9 Punctuation. Are you using semicolons properly? Are you sure? What about colons? Commas? 10 Conjunctions. Do you have sentences that start with conjunctions (e.g., and, but, etc.)? Conjunctions are a good thing. 11 Correlative conjunctions. Does each correlative conjunction you use have its mate? - Both…and - Either…or - Neither…nor - Not only…but also 12 Multiple negatives. There’s never been a time I can’t remember where I didn’t come across a brief with a sentence containing multiple negatives. Avoid it. 13 Parenthetical shorthand names. Only use these when you really need to. 14 Rule of 3s. Sentences that introduce information in 3s are dynamic, compelling, and memorable. 15 Omit needless words. The single most important rule is last: Have you struck every paragraph, sentence, and word that cannot justify its existence? 16 Spellcheck. You are not too good for spellcheck.

FDFCDC 125 Tip Sheet #2 Uncover buried verbs and verb phrases

Examples Buried verb Un-buried verb arbitration arbitrate compulsion compel conformity conform enforcement enforce knowledge know litigation litigate mediation mediate negotiation negotiate obligation obligate opposition oppose preference prefer reduction reduce utilization utilize violation violate

Examples Buried verb phrase Un-buried verb phrase provide responses respond offer testimony testify make inquiry inquire provide assistance assist reach a resolution resolves reveals the identify of identifies makes mention of mentions are in compliance with comply make allegations alleges conduct a cross examination of examine take into consideration consider provide a description of describe violation violate

FDFCDC 126 Tip Sheet #3 Nominalizations1

What are nominalizations? A nominalization is a noun derived from a verb or adjective.

Examples Verb Noun Adjective Noun to discover becomes discovery careless becomes carelessness to suggest becomes suggestion different becomes difference to react becomes reaction proficient becomes proficiency

How does this work in practice?

Working with Nominalizations

1. The officer made an arrest of the perpetrator. [8 words]

1a. The officer arrested the perpetrator. [5 words]

2. Once upon a time, as a walk through the woods was taking place on the part of Little Red Riding Hood, the Wolf’s jump out from behind a tree occurred, causing her fright. [33 words]

2a. Once upon a time, Little Red Riding Hood was walking through the woods, when the Wolf jumped from behind a tree and frightened her. [24 words]

3. The court is to “consider whether the delay was reasonable under the totality of the circumstances.” This analysis is conducted on a “case-by-case basis” and the Supreme Court has adopted a balancing test to determine whether a seizure is reasonable. [40 words]

3a. Courts “consider whether the delay was reasonable under the totality of the circumstances.” Under Supreme Court precedent, courts apply a balancing test on a case-by- case basis to determine reasonability. [29 words]

1 It is important to give credit where credit is due. These ideas flow from Joseph Williams’s Style: Lessons in Clarity & Grace.

FDFCDC 127 How to avoid nominalizations:

(1) Identify. What is the real action in a sentence? What are the actors doing? Are the actions expressed as actual verbs? If not, you’re likely hiding the actions in nominalizations. Tip: If you see empty verbs—be, has, seems, etc.—be on the lookout. If you see words ending in –ion (e.g., intention, suggestion, recommendation, etc.), be on the lookout.

(2) Analyze. Decide who your main characters are, particularly flesh-and-blood ones, then look for the actions those characters perform—and express those actions as verbs.

(3) Destroy (i.e., revise). If the real actions are nominalizations, make them into verbs. Make the characters the subjects of those verbs. Rewrite the sentence (using conjunctions—because, if, when, although, why, how, whether, that—if necessary).

FDFCDC 128 Tip Sheet #4 Explicit connectives: a user’s guide.1 Overview. Good writers need explicit connectives. But use them wisely (i.e., do not overuse them). They help form the backbone for cohesion, as they clarify and connect sentences. Examples When adding a point also, and, in addition, besides, what is more, similarly, nor, along with, likewise, too, moreover, further When giving an example for instance, for example, as one example, to cite but one example, for one thing, for another thing, likewise, another When restating in other words, that is, this means, in simpler terms, in short, put differently, again, in sum When introducing a cause because, since, when When introducing a result so, as a result, thus, therefore, accordingly, then, hence When contrasting but, instead, yet, however, on the one hand, on the other hand, still, nevertheless, nonetheless, conversely, on the contrary, whereas, in contrast to, unfortunately When conceding or granted, of course, to be sure, admittedly, though, even qualifying though, even if, only if, true, while, naturally, in some cases, occasionally, if, while it might be argued that, despite When pressing a point in fact, as a matter of fact, indeed, of course, without exception, still, even so, anyway, the fact remains, assuredly When explaining a sentence that is, then, earlier, previously, meanwhile, simultaneously, now, immediately, at once, until now, soon, no sooner, that being so, afterward, later, eventually, in the future, at last, finally, in the end When summing up to summarize, to sum up, to conclude, in conclusion, in short, in brief, so, and so, consequently, therefore, accordingly, all in all When sequencing ideas First, second, third, fourth . . . .

1 It is important to give credit where credit is due. These ideas flow from Bryan Garner.

FDFCDC 129 Tip Sheet #5 Headers

Draft headers that inform. Not this A. “Ex parte application.” But this A. An ex-parte subpoena is necessary because Mr. Webster disclosed defense strategy.

For the background, draft headers that argue facts, not legal conclusions. Not this A. Officer Collier’s overly-zealous Terry stop. But this A. Officer Collier pulled Mr. McBriar from his truck at gunpoint, handcuffed him, and then searched the truck—all without asking a single question.

Respect Goldilocks headers (i.e. be wary of headers that are three lines or longer). Not this A. The Prosecution Failed to Establish that a Facially Prejudicial Extraneous News Report Witnessed by a Juror the Night Before Deliberations Did Not Compromise the Impartiality of that Juror. But this A. An inflammatory, extraneous news article read by a juror contaminated deliberations.

Build cohesion across headers. Example Background A. Police call a tow because Mr. Jackson’s car is blocking the alley. B. While waiting for the tow, police turn off the only body camera. C. Before the tow truck arrives, police search for suspicious items. D. Finding no suspicious items, police release the car the car.

FDFCDC 130 Tip Sheet #6 Emphasis. Overview. Emphasis matters, and the best place to emphasize is at the sentence’s end. A good test for emphasis: read your sentence aloud, and give the ending a dramatic reading. If the ending sounds silly, then you’re likely emphasizing the wrong point. Re-write and re-read. Examples Oliver Smith died three weeks later in A good sentence if you want to emphasize Columbus, Ohio. where Mr. Smith died (e.g., a jurisdictional dispute). Oliver Smith died in Columbus, Ohio, A good sentence if you want to emphasize when three weeks later. Mr. Smith died (e.g., a statute of limitations dispute). Three weeks later, while in Columbus, A good sentence if you want to emphasize that Ohio, Oliver Smith died. Mr. Smith died.

FDFCDC 131 Tip Sheet #7 Tee-ups. Overview. Tee-ups are vital, as they preview for the reader what you are about to discuss (or show). And when your reader knows where you are going, she is better able to follow. Tee-ups for block quotes1

Unhelpful The August 11, 1994 Indictment states:

“On or about June 25, 1992, in Spokane County, Defendant Keith Studhorse committed attempted First-Degree Murder, as set out in RCW 9A.32.030 . . . .”

Helpful The 1994 Indictment charged Keith Studhorse with attempted first-degree murder:

Tee-ups for case introductions

Unhelpful In Jacobs, Iowa City Police Officer Michael Brotherton was investigation Ron Jacobs for alleged drug distribution. See U.S. v. Jacobs, 986 F.2d 1231 (8th Cir. 1993).

Note: this sentence is most unhelpful, as it tells the reader nothing about why this case matters. Never begin a case discussion with “In [insert case name]” again. Ever.

Helpful Courts do not appreciate it when officers omit K-9 “non-alerts” from warrant applications. See, e.g., U.S. v. Jacobs, 986 F.2d 1231 (8th Cir. 1993). In Jacobs, …

Note: this re-write tells the reader what Jacobs is about—and why it matters.

1 In no way, shape, or form should this tee-up example be viewed as permission to use block quotes. They are— and remain—a poor way to convey information.

FDFCDC 132 Tee-ups for pictures (yes, do tee-ups for pictures)

Unhelpful The body camera showed this:

Helpful The body camera captures Officer Stevens open his trunk and pull out an inventory form that officers complete before a vehicle is towed:

FDFCDC 133 Tip Sheet #8 Cohesion & coherence.1 Cohesion overview. Sentences are cohesive when the last few words of one set up information that appears in the first few words of the next. Simply put: begin sentences with information familiar to your reader, and end sentences with information that is new to your reader. Then repeat. Visually, cohesion looks like this: Familiar information New information Cohesion example Police approached Mr. Jackson, removed him from his car, and arrested him on an active warrant. After police arrested Mr. Jackson, they needed to move his car, which was blocking the alley. Analysis The first sentence ends with new information: police arresting Mr. Jackson. The second sentence begins with familiar information (i.e., Mr. Jackson’s arrest), and ends with new information: his car was blocking the alley.

Cohesion need not be explicit Explicit Explicit cohesion occurs when the new information at the end of one sentence is cohesion explicitly referred to in the next sentence. Example: I like apples. Apples are grown in Eastern Washington.

These two sentences are explicitly cohesive because the first ends with apples, and the second begins with apples. This is fine, but it’s not required. And too much explicit cohesion becomes wearisome. Implicit Implicit cohesion occurs when the new information at the end of one sentence is cohesion impliedly referred to in the next sentence.

Example: The Court directed the United States to turn over its expert materials two months ago. We are now three weeks from trial, and the United States just disclosed new experts with new opinions.

1 It is important to give credit where credit is due. These ideas flow from Joseph Williams and Benjamin Dreyer.

FDFCDC 134 These two sentences are impliedly cohesive because the first ends with a concept (i.e., time), and the second begins with the same concept (i.e., time). Global cohesion Cohesion is more than the connective glue between sentences. It can also connect ideas in one section of your brief to ideas in the following section of your brief using globally-cohesive headers. Example Below are four headers from a suppression motion’s background section. And while each section covers different facts, the headers—when inserted into a table of contents—link together to create cohesion across sections. A. Police pull Mr. Jackson from his vehicle and arrest him. B. Because Mr. Jackson’s vehicle is blocking an alley, police call a tow. C. While waiting for the tow, police look for suspicious items. D. Finding no suspicious items, police release the car.

A trick to create cohesion Passive At some point in your life, a writing teacher told you to “always write in the voice active.” Ignore this advice.

Passive voice explained. In a sentence written in the passive voice, the thing that is acted upon is frontloaded, and the thing doing the acting comes at the end.

- Active voice: The clown terrified the children. - Passive voice: The children were terrified by the clown.

There are many reasons why the passive voice exists. One is because it allows the writer to re-arrange sentences to create cohesion.

Consider the following sentence:

FDFCDC 135 A trick to create cohesion Some astonishing questions about the nature of the universe have been raised by scientists studying black holes in space.

Of the two sentence options below, which creates better cohesion with the sentence above?

A. The collapse of a dead star into a point perhaps no larger than a marble creates a black hole. B. A black hole is created by the collapse of a dead star into a point perhaps no larger than a marble.

Option A uses the active voice, but using it eliminates cohesion because the first sentence ended with new information (i.e., black holes), and the next sentence began by talking about collapsing stars. That is confusing.

Option B uses the passive voice, which creates cohesion because the first sentence ended with new information (i.e., black holes), and the next sentence picked up where the first left off (i.e., black holes).

Another reason the passive voice exists is because it allows the writer to choose where she places her sentence’s emphasis.

Example: The room was meticulous. The floors were vacuumed, the beds were tidy, and the furniture was dusted.

Who cares who did the cleaning? The point is the room was in meticulous condition.

A trick to help identify passive voice: If you can append “by zombies” to the end of a sentence, you’ve indeed written a sentence in the passive voice.

Example: The children were terrified by zombies.

FDFCDC 136 A trick to create cohesion Example: The floors were vacuumed, the beds were tidy, and the furniture was dusted by zombies.

Coherence overview. While cohesion serves as the connective glue between sentences, coherence occurs when a paragraph sticks to one point—and one point alone. Paragraphs that contain multiple points become muddled. Simply put: one point per paragraph. Period.2

A trick to monitor paragraphs for coherence When reading through a paragraph, review the first sentence, think about the sentence’s primary point, and then insert a superscript. This is a superscript. Then read the next sentence. Does it follow or build on the prior sentence’s point? If so, then good. But if the point switches, then insert a new superscript. The moment you need a new superscript, you need a new paragraph. An example helps:

Example: I like apples.⁴ Apples are grown in Eastern Washington.⁴ Eastern Washington catches fire every summer, which creates smoke, which hurts my eyes.⁵

This paragraph started out talking about apples, but then switched to fires. Two points in the same paragraph = problem.

But note: this paragraph is perfectly cohesive. Apples to apples; Eastern Washington to Eastern Washington. That is why cohesion and coherence go hand-in-hand. Together, they create flow.

2 At some point in your life, a writing teacher told you “a paragraph should contain at least three sentences.” Also ignore this advice. One-sentence paragraphs are just fine. Paragraphs serve to differentiate between ideas. They also serve to call attention to ideas. There is no minimum-sentence requirement.

FDFCDC 137 Tip Sheet #9 Colons: a user’s guide.1 Overview. Benjamin Dreyer said it best: colons are not merely introductory but presentational. They say: Here comes something! With that in mind, here are a few use tips.

Rule #1 Use a colon to link two separate clauses or phrases when you need to indicate a step forward from the first to the second—as when the second part explains the first part or provides an example. Example After two hours, they reconciled: The chef apologized, and the owner re-hired him with a $10 raise.

Rule #2 Use a colon to introduce a list—especially one that is broken down into sub-paragraphs. Example Each conspirator is liable for the other conspirators’ crimes if two conditions are satisfied: 1) the crimes were committed to further the conspiracy’s objectives; and 2) the crimes were a natural and probable consequence of the conspiracy.

Rule #3 Use a colon after the salutation in correspondence.

Note: It is okay to use a comma in informal letters. Example Dear Judge Shea:

1 It is important to give credit where credit is due. These examples flow from Bryan Garner and Benjamin Dreyer.

FDFCDC 138 Rule #4 Don’t use a colon to introduce a quotation or list that blends into your sentence. Example Bad: The real issue is what has been called: “the most difficult problem in criminal procedure today.” Good: The real issue is what has been called “the most difficult problem in criminal procedure today.”

Rule #5 If what follows a colon is a full sentence (i.e., subject, verb, etc.), then begin that full sentence with a capital letter; if what follows a colon is a list of things or fragmentary phrases, then begin the list with a lowercase letter. Example Uppercase: Colons are presentational. They say: Here comes something! Lowercase: My grocery list contains several items: bananas, pears, avocados, and ice cream.

FDFCDC 139 Tip Sheet #10 Semicolons: a user’s guide.1 Use a semicolon to unite two short, closely connected sentences. Example #1 In three-tier systems, the top court has tremendous discretion; it can usually decide which cases to hear and which to reject. Example #2 One side must make an offer; the other side must accept it.

Use a semicolon to separate items in a list or series when 1) any single element contains an internal comma, 2) the enumeration follows a colon, or 3) the items are broken into subparagraphs. Example #1 The individual defendants live in four cities: Austin, Texas; Bellingham, Washington; Dallas, Texas; and Denver, Colorado. Example #2 The rationale is two-fold: 1) since the declarant knows her own state of mind, there is no need to check her perception; and 2) since the statement is of present state of mind, there is no need to check her memory. Example #3 To establish causation and intent in emotional-distress cases, the plaintiff is generally required to show that: 1) the plaintiff was present when the injury occurred; 2) the plaintiff was a close relative of the person injured; and 3) the defendant knew plaintiff was present.

Don’t use a semicolon when a colon is needed—especially after a salutation. Example #1 Bad: Dear Sarah; Good: Dear Sarah: Example #2 Bad: Two major reforms took place; the overhaul of no-fault insurance and the enhanced oversight of insurance companies. Good: Two major reforms took place: the overhaul of no-fault insurance and the enhanced oversight of insurance companies.

1 It is important to give credit where credit is due. These examples flow from Bryan Garner and Benjamin Dreyer.

FDFCDC 140 Tip Sheet #11

Sentence Modifiers1

Good writers control sentence sprawl—i.e., sentences that risk carrying on too long with multiple thoughts. One way they do this is through modifiers. Resumptive, summative, and free modifiers give writers an eloquent way to combine two (or more!) sentences or thoughts into one.

Resumptive Modifier Example: Within ten years, we could meet our energy needs with solar power, needs that will soar as our population grows.

Explanation: The writer uses the word “needs” to resume the subordinate clause (i.e., what is after the comma), combine two thoughts, and create cohesion.

Summative Modifier Example: Within ten years, we could meet our energy needs with solar power, a possibility that few anticipated ten years ago.

Explanation: The writer uses “a possibility” to summarize all that came before the subordinate clause, again tying what is after the comma to what came before.

Free Modifier Example: Within ten years, we could meet our energy needs with solar power, freeing ourselves of dependence on foreign oil.

Explanation: The writer uses a gerund (i.e., a verb form ending in –ing) as a free modifier, tying the subordinate clause to the dominant clause (just as the word tying does in this sentence).

1 It is important to give credit where credit is due. These examples flow from Joseph Williams in Style: Lessons on Clarity & Grace.

FDFCDC 141 Tip Sheet #12

Moral Foundations

Harm Description Evolved from a maternal sensitivity to suffering in offspring. Conservatives believe cruelty and aggression may be virtuous when obeying authority or acting out of loyalty to the group. Traits Caring, kindness, compassion. Sample Themes Arguing an outcome is overly harsh; arguing an outcome impacts family; arguing an outcome impacts the community (e.g., taking a working member of society off the streets and locking them up).

Fairness Description Evolved from idea that cooperation among groups is superior. Traits Trustworthiness, justice, guilt, anger, gratitude. Sample Themes Arguing an outcome is unjust or unfair; discussing or raising the theme of trust; expressing appreciation for opposing counsel’s position or the Court’s willingness to hear you out on a position; arguing someone acted over feelings of guilt.

Authority Description Elevates virtues that facilitate a hierarchical social structure. By valuing authority and respect, social life functions fluidly. Traits Obedience, structure, dissent against authority may be seen as immoral and anti-social. Sample Themes Arguing that someone was obedient with the laws; arguing that law enforcement or leadership made mistakes; arguing that the Government (not the prosecutor, but some agency) made poor decisions.

FDFCDC 142 Ingroup Description Resistance to diversity is understandable under this foundation, as it is a weakening of the group. Traits Loyalty, patriotism, self-sacrifice, tradition. Group criticism is disfavored. Sample Themes Arguing themes about family or tradition (e.g., a person acted to protect family); arguing themes about loyalty (to family, to friends, etc.); arguing themes about betrayal (e.g., betrayal of duty), which is very powerful.

Purity Description An evolutionarily by-product of the emotion of disgust. Those who are ruled by carnal passions (lust, gluttony, greed, and anger) are seen as impure. Those who deny bodily impulses are elevated. Traits Virtuous behavior. Sample Themes Arguing that someone was driven by a moral compass; bringing up care for family or children; bringing up protectionist qualities in someone.

FDFCDC 143 This page intentionally left blank for double-sided pagination and printing

FDFCDC 144 UNDERSTANDING IMMIGRATION CONSEQUENCES OF FEDERAL CRIMINAL CONVICTIONS

Ubong E. Akpan

NOTES

FDFCDC 145

Guide to Understanding Immigration Consequences of Federal Convictions*

Ubong E. Akpan Attorney Advisor Defender Services Office Training Division Washington, DC April 2019 Frank Dunham Federal Criminal Defense Conference

* This document is not a substitute for legal advice. Immigration law constantly changes and this document should not replace legal research.

FDFCDC 146 TABLE OF CONTENTS

I. OVERVIEW 4 II. CHECKLIST 5 III. IMMIGRATION STATUSES 6-9 IV. REMOVAL & FORMS OF IMMIGRATION RELIEF 9 V. DEPORTABILITY VS. INADMISSIBILITY 10 VI. 5 MAJOR CRIME CATEGORIES FOR REMOVAL 10-15 a. Crimes Involving Moral Turpitude 10-11 b. Firearms Offenses 11 c. Drug Offenses 12 d. Domestic Violence Offenses 13 e. Aggravated Felonies 13-15 VII. ADDITIONAL RESOURCES 16 VIII. APPENDIX 17 a. ILRC Immigrant Defendant Questionnaire 18-20 b. Immigrant Defense Project’s Immigration Consequences of Convictions Summary Checklist – DACA Supplement 21-22 c. Fd.org Immigration Resources 23 d. List of Federal Misdemeanors 24-42

FDFCDC 147 I. OVERVIEW Noncitizen clients are facing more and more criminal prosecutions with the harsh consequences of serving federal time and being deported from the United States. Knowing whether your client’s conviction will be a crime involving moral turpitude versus an aggravated felony may make the difference between remaining in the U.S. with their family and being deported. This guide provides you with the major deportable and inadmissible crimes, (i.e. aggravated felonies, crimes involving moral turpitude, domestic offenses, drug offenses, and firearms). Understanding immigration consequences takes time and research. This guide is not a substitute for legal research. Since the consequences can be severe for noncitizens, defense counsel must seek the advice of an immigration attorney.

FDFCDC 148 UBONG’S CHECKLIST FOR UNDERSTANDING IMMIGRATION CONSEQUENCES

Complete the immigration questionnaire with your client to obtain their immigration history. Knowing your Client’s Immigration STATUS matters. Many times, the client is unsure of his or her history and family members will need to be interviewed.

Obtain your client’s Alien file (A-file) from the AUSA. In federal cases, this should be part of your discovery.

Consult with an immigration attorney as soon as possible on the case The National Immigrant Justice Center provides free immigration advice for federal defenders and panel attorneys. An immigration attorney can inform you of the forms of immigration relief or other options that may be available for the client, from A (Adjustment of Status) to T (Trafficking Victim Visa).

Is it a “conviction” for immigration purposes? Many federal criminal dispositions will meet the definition of “conviction” under 8 U.S.C. § 1101(a)(48)(A); however, it is good to check and to check your client’s priors against the definition. See blue part of the Immigration Aide.

Is it an aggravated felony based on the term of imprisonment? Some aggravated felonies are based on the term of imprisonment. If you avoid the term of imprisonment, usually 1 year, you may be able to escape the aggravated felony definition.

Is the instant offense OVERBROAD and INDIVISIBLE as compared to the generic offense? For the categorical approach & modified categorical approach flowchart and other materials, click here.

If the instant offense involves a controlled substance, be aware that admissions (as opposed to convictions) can make the client inadmissible. See 8 U.S.C. § 1182(a)(2)(A) and (C). Also see Understanding Immigration of Drug Consequences materials here.

Consider filing a motion for pretrial release (Trujillo motion). “Pretrial release is the foundation upon which a successful defense is built.” See more information on Trujillo Motions Sweeping the Country here.

Understanding Immigration Consequences of Federal Convictions - April 2019 Ubong E. Akpan, Attorney Advisor, DSO- TD

FDFCDC 149

III. IMMIGRATION STATUSES It's important to know your client's immigration status because the criminal conviction will directly impact her chances of remaining in the United States and the length of time she may have to remain.

Various Types of Immigration Statuses a. USC – United States Citizen (born or naturalized) i. Born – in the US or its incorporated territories 1. Certain locations a. Persons born in the Northern Mariana Islands after 1/19/1978 are USCs by a covenant between the US and the Commonwealth of the Northern Mariana Islands.

Sabangan v. Powell, 375 F.3d 818, 821 (9th Cir. 2004) (emphasis added) Explaining “The Covenant, section 501 makes section 1 of the Fourteenth Amendment apply as if the Northern Mariana Islands ‘were one of the several States.’ The language is precise. It speaks as the Constitution itself speaks-e.g., ‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.’ U.S. Const. art. I, § 2. ‘The Citizens of each State shall be entitled to all privileges and immunities of Citizens in the several States.’ U.S. Const. art. IV, § 2. The government's effort to distinguish ‘one of the several States’ from a State within the United States depends on gossamer reasoning that common sense must blow away.”

ii. Derivative – born outside the US to one or both parents who are USC; special provisions apply to children adopted by a USC. 1. Statutes: Child born to a USC - 8 U.S.C. § 1431 (a); Child adopted by a USC parent – 8 U.S.C. § 1431(b);

Sessions v. Morales-Santana, 137 S.Ct. 1678, 1686 (2017) The government sought to remove Morales-Santana based on his criminal convictions. He challenged his removal by claiming derivative citizenship since he was born in the Dominican Republic to a USC father. However, his father was 20 days short of establishing physical presence in the United States, which was required at the time for unwed fathers. The Supreme Court “h[e]ld that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons ‘the equal protection of the laws.’” It further explained, “[n]evertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers).” Legislative changes are up to “Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed,” and the Court stated that “[i]n the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.”

FDFCDC 150

Villegas-Sarabia v. Sessions, 874 F.3d 871, 883–84 (5th Cir. 2017), cert. denied, 139 S. Ct. 320, 202 L. Ed. 2d 218 (2018) On the issue of retroactivity of Morales-Santana, the Supreme Court “did not rewrite the previous statutory regime or apply the ‘now-five-year’ rule retroactively. Instead, the Court emphasized that its decision would affect future rights only.”

iii. Naturalized – must meet residency requirements, 3-5 years, and be of good moral character to become a citizen; 1. Statutes: See Requirements at 8 U.S.C. § 1427. 2. If convicted a crime, generally cannot be removed from the US, but client can be de-naturalized due to illegally procuring citizenship. See 18 U.S.C. §1425 and the following:

United States v. Suarez, 664 F.3d 655, 662 (7th Cir. 2011) (federal crime); Holding that naturalized citizen, who committed drug offense during the statutory period prior to taking the oath but was indicted, arrested, and convicted after naturalization was subject to denaturalization and explaining that “we think it highly unlikely that Congress intended for applicants who, during the statutory period, commit crimes that would disqualify them from naturalization to nonetheless slide through the loophole Suarez asks us to create if they manage to evade detection and conviction until after they are naturalized.”

United States v. Jammal, 90 F.Supp.3d 618 (S.D. W. Va. 2015) (federal crime) Granting motion for summary judgement in civil denaturalization (8 U.S.C. § 1451) case where defendant was involved in repackaging infant formula scheme, then a few months later became a naturalized citizen, then three years later plead guilty to one count of aiding and abetting the introduction and delivery for introduction into interstate commerce misbranded food, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 331(a) and 333(a)(1) and noting that continuous acts under 21 U.S.C. § 331(a) constituted multiple CIMT(s) and thus no petty offense exception was available.

United States v. Agyemang, 2018 WL 3245048 (E.D. N.C. July 3, 2018) (state crime) Granting motion for summary judgement in civil denaturalization (8 U.S.C. § 1451) case where defendant obtained citizenship (on June 21, 2000) prior to pleading guilty to NC state offense of sexually assaulting his minor stepchild (on November 5, 2003) and the record of conviction established that the offense took place before he obtained citizenship (on April 1, 2000), thus establishing that he committed an offense for which he was not arrested.

DENATURALIZATION PRACTICE TIP PRACTICE TIP – Qualification is a defense Maslenjak v. United States, 137 S.Ct. 1918 (2017)

FDFCDC 151 Holding that “the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship” and that “Section 1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”

b. LPR – Lawful Permanent Resident or Green Card Holder i. Statutes: For the process, see 8 U.S.C. §§ 1151-59 ii. Lawful Permanent Resident (or Green Card Holders) are authorized to live and work in the US on a permanent basis BUT are subject to being removed from the US for violating certain laws. See below:

Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (The length of residence does not prevent an LPR from being removed.) Holding “that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

Lee v. United States, 137 S.Ct. 1958, 1967 (2017) (LPR established prejudice as a result of bad advice from defense attorney) Holding that “[i]n the unusual circumstances of this case, we conclude that Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation. There is no question that ‘deportation was the determinative issue in Lee’s decision whether to accept the plea deal.’” c. NIV – Nonimmigrant Visa (e.g. tourist visa) i. Nonimmigrant visas – are for temporary visitors to the US; they must apply for a visa and be issued one; ii. Au pairs; business visitors; crew members; foreign nationals with extraordinary ability in science, arts, education, business or athletics; journalists; religious workers; students; tourists; etc. d. VWP – Visa Waiver Program (e.g. visitors from Europe) i. Visa Waiver Program – similar to NIV in that they are temporary but they do not need to apply for a visa; purpose is to visit and must not stay more than 90 days at a time e. TPS – Temporary Protected Status i. If granted, someone with TPS cannot be deported during the TPS period and is entitled to legally work in the US, and can adjust her status to LPR f. EWI – “Entry without inspection” – Sin papeles i. Generally, in this status it is difficult to adjust status; however, an

FDFCDC 152 immigration attorney’s guidance is paramount for clients with convictions in this category.

g. Refugees and Asylees i. Refugees are admitted to the US from an outside country ii. Asylees apply for and receives asylum from within the US

IV. REMOVAL & FORMS OF IMMIGRATION RELIEF Deportation & Removal a. “The impact of deportation upon the life of an alien is often as great if not greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends and his livelihood forever. Return to his native land may result in poverty, persecution and even death.” Bridges v. Wixon, 326 U.S. 135, 164 (1945).

b. Forms of Immigration Relief (see full list at p. 1467 of Kurzban’s Immigration Law Source Book, 15th Ed.) i. Adjustment of Status ii. Cancellation of Removal iii. Voluntary Departure iv. Asylum or Convention Against Torture(CAT), Termination of Proceedings, etc. v. Registry vi. Prosecutorial Discretion vii. Certain Waivers of Removability or Inadmissibility viii. Nunc Pro Tunc permission to reapply for admission after Removal ix. Estoppel x. Collateral Attack on previous removal order xi. Deferred Action xii. Private Legislation

c. Good Moral Character i. Required for most forms of immigration relief ii. 180 days -- 8 USC §1101(f)(7) – not good moral character if 1. one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;

FDFCDC 153 V. DEPORTABILITY VS. INADMISSIBILITY a. Deportability applies when a person is placed in removal proceedings after being lawfully admitted. See INA § 237(a)/8 U.S.C. § 1227(a) b. Inadmissibility applies when a person is seeking admission. See INA § 212(a)/8 U.S.C. § 1182(a).

VI. 5 MAJOR CRIME CATEGORIES FOR REMOVAL a. Crimes Involving Moral Turpitude (CIMT) – 8 U.S.C. § 1227(a)(2)(A) i. Definition 1. There is no statutory definition of CIMT. Court have looked and interpreted the Board of Immigration Appeals (BIA) definition of CIMT.

Ramirez v. Sessions, 887 F.3d 693, 704 (4th Cir. 2018), as amended (June 7, 2018) (citations omitted) “The BIA defines the term ‘moral turpitude’ as behavior ‘that shocks the public conscience as being inherently base, vile, or depraved.’ A CIMT must involve both a morally culpable mental state and morally reprehensible conduct. To meet the mens rea requirement, the crime must have, as an element, an intent to achieve an immoral result or willful disregard of an inherent and substantial risk that an immoral act will occur. To meet the actus reus requirement, the crime ‘must involve conduct that not only violates a statute but also independently violates a moral norm.’”

Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) Defines the federal definition of a crime involving moral turpitude as (1) fraud or (2) conduct that is (a) vile, base or depraved, and (b) violates accepted moral standards; holding that the CA identify theft statutes under which defendants were convicted were not CIMTs

ii. CIMT Statute 1. (i) Crimes of moral turpitude. Any alien who— (I)is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title ) after the date of admission, and (II)is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. 2. (ii) Multiple criminal convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

iii. Federal Examples of CIMTs 1. Misprision of a felony under 18 USC § 4

FDFCDC 154 Villegas-Sarabia v. Sessions, 874 F.3d 871, 879 (5th Cir. 2017), cert. denied, 139 S. Ct. 320, 202 L. Ed. 2d 218 (2018) Discussing circuits where misprision is a CIMT and where it is not. See also Cert Petition for Villegas-Sarabia v. Sessions (noting the circuit split that in the 1st, 5th, and 11th Circuits, misprision is a CIMT but in 2nd, 9th, and 10th Circuits, it is not a CIMT.)

2. Theft under 18 U.S.C. § 656

See Matter of Batten, 11 I&N Dec. 271 (BIA 1965)

iv. NOT a CIMT examples 1. FED - Criminal violations of banking regulations – Goldeshtein v. INS, 8 F.3d 645 (11th Cir. 1993) 2. FED - Evading the draft – Matter of S, 5 I&N Dec. 425 (BIA 1953) 3. FED - Illegal Re-entry – Rodriguez v. Campbell, 8 F.2d 983 (5th Cir. 1925)

v. Failure to Register? 1. Yes - Willful Failure to Register as a Sex Offender under California Penal Code § 290(g)(1) is a CIMT because the statute requires willful violation – Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007). 2. No - Failure to register as a Sex Offender under Minnesota Statute § 243.166 is not a CIMT because a person may be convicted based on forgetfulness. Totimeh v. Att’y Gen., 666 F.3d 109, 115 (3d Cir. 2012). b. Firearms Offenses – 8 U.S.C. § 1227 (a)(2)(C) i. Statute 1. Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18) in violation of any law is deportable.

United States v. Aguilera-Rios, 769 F.3d 626, 637 (9th Cir. 2014) Holding that defendant’s conviction under a CA state law that allows a conviction for using antique firearms is not a firearms offense.

FDFCDC 155 c. Drug Crimes – 8 U.S.C. § 1227(a)(2)(B) i. Statute 1. (i) Conviction- Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) 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), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable. 2. (ii) Drug abusers and addicts -Any alien who is, or at any time after admission has been, a drug abuser or addict is deportable ii. Marijuana Exception 1. Single offense 2. Under 30 grams of marijuana 3. Personal Use iii. See also drug trafficking marijuana aggravated felony case – Moncrieffe v. Holder, 133 S. Ct. 1678 (2013)

DRUG CRIMES PRACTICE TIPS #1 PRACTICE TIP  Be Aware of Drug Paraphernalia Barma v. Holder, 640 F.3d 749 (7th Cir. 2011) (drug statute applies to drug paraphernalia)

Mellouli v. Lynch, 135 S.Ct. 1980 (2015) Holding that a sock is not drug paraphernalia and “reject[ing] the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a §802 schedule [defining controlled substance.]”

#2 PRACTICE TIP  LOOK FOR OVERBROAD DRUG STATUTES United States v. Reyes-Mendoza, 665 F.3d 165 (5th Cir. 2011) Reversing a sentenced under 2L1.2 based on a CA conviction that prohibited the manufacture of a controlled substance where the CA definition of “manufacture” was broader that drug trafficking offenses for purposes of 2L1.2

United States v. Townsend, 897 F.3d 66, 74 (2d Cir. 2018) Holding that a “controlled substance” in 4B1.2 refers exclusively to a substance controlled by the CSA and NY statute at issue was broader than CSA, where defendant could be convicted of selling HCG.

#3 PRACTICE TIP NOTE that DRUG CONDUCT could provide REASON TO BELIEVE (RTB) that the client is a drug trafficker making client inadmissible

Cuevas v. Holder, 737 972, 975 (5th Cir. 2014) LPR entered the U.S. with a drug amount consistent with drug trafficking, but not convicted; court held the immigration authorities had reason to believe he was drug trafficker.

FDFCDC 156 d. Domestic Violence – 8 USC § 1227(a)(2)(E) i. Statute (Summarized): 1. Non-USC who, at any time after admission, is deportable if convicted of : Domestic violence, Stalking, Child Abuse, Child Neglect, or Child Abandonment 2. Crime of Domestic Violence = Any “Crime of Violence” committed against certain persons a. A current or former spouse b. A person with a child in common c. A person cohabitating with the non-USC d. A person similarly situated as a spouse e. A person who is protected from the non-USC’s acts by domestic or family violence laws 3. Violation of a protective order will trigger removal proceedings a. Protective order means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts e. Aggravated Felonies (AF) – 8 USC § 1227(a)(2)(A)(iii) i. Statute 1. “Any alien who is convicted of an aggravated felony at any time after admission is deportable.” ii. List of AFs – 8 USC §1101(a)(43) 1. (A) murder, rape, or sexual abuse of a minor* 2. (B) illicit trafficking in drugs, incl. drug trafficking 3. (C) illicit trafficking in firearms or destructive devices 4. (D) money laundering, incl. money from unlawful activity exceeding $10,000 5. (E) firearms offenses** 6. (F) Crime of Violence (18 USC §16)*** – 1 yr term of imprisonment 7. (G) theft or burglary – 1-year term of imprisonment 8. (H) ransom offenses 9. (I) child pornography cases 10. (J) RICO offenses 11. (K) prostitution and Slavery offenses 12. (L) national defense offenses 13. (M) fraud/deceit – loss > $10,000 14. (N) alien smuggling 15. (O) illegal re-entry after deportation for an AF 16. (P) false making, forging, counterfeiting, mutilating, or altering a passport – 12-month term of imprisonment 17. (Q) failing to appear to serve a sentence 18. (R) commercial bribery, counterfeiting, forgery, or trafficking in vehicles – 1 year

FDFCDC 157 19. (S) obstruction of justice, perjury, bribery of a witness – 1-year term of imprisonment 20. (T) failure to appear regarding a felony in which the sentence of 2 years or more may be imposed 21. (U) attempt or conspiracy of any of the above

iii. 2 categories: Above list shows that there are 2 categories for 8 USC §1101(a)(43) 1. crimes where 1-year sentence is imposed (e.g. COV, theft, burglary, etc) 2. crimes where the sentence does not matter (e.g. murder, rape, fraud, etc)

*Sexual Abuse of a Minor – Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017) The Supreme Court rejected the BIA’s interpretation of sexual abuse of a minor, “hold[ing] that in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of ‘sexual abuse of a minor’ under §1101(a)(43)(A) requires the age of the victim to be less than 16.”

**Arson and Explosives – Torres v. Lynch, 136 S.Ct. 1619 (2016) Holding “a state crime counts as an aggravated felony when it corresponds to the a specified federal offense in all ways but one – namely the […] the interstate commerce element” where state crime at issue was NY crime of arson

***Crime of Violence – Johnson v. United States, 576 U.S. ___ (2015) (June 26, 2015), The Supreme Court struck down ACCA’s residual clause as void

***Crime of Violence – Sessions v. Dimaya, 138 S.Ct. 1204 (2018) Dimaya was charged in immigration court with 3 grounds of removal: (1) CIMT, (2) AF – theft, and (3) COV. The Supreme Court held that the residual clause of the federal “Crime of Violence” definition, found at 18 U.S.C. § 16(b), as incorporated in 8 U.S.C. § 1101(a)(43)(F), was impermissibly vague in violation of due process, hence Dimaya’s CA residential burglary convictions based on 16(b) were in effect nullified.

iv. Drug Trafficking/Moncrieffe/marijuana exception -- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (see practice advisory in materials) 1. Distribute a small amount of marijuana 2. No remuneration 3. 21 USC § 844  no more than 1 year imprisonment 4. 18 USC § 3607  eligible for probation and “shall not be considered a conviction”

FDFCDC 158 v. Inchoate Crimes 1. Conspiracy, Attempt, and Solicitation a. 8 USC §1101(a)(43)(U) – attempt and conspiracy to commit an AF = an AF b. If the underlying or substantive crime is a CIMT, then a conviction for aiding in the commission of the crime or otherwise acting as an accessory before the fact is also a CIMT. See Matter of Short, 20 I&N Dec. 136 (BIA 1989).

vi. Aiding & Abetting 1. Aider & abettor is treated as the Principal, per 18 USC §2. 2. AF note: While aiding and abetting is not included in §1101(a)(43)(U), it can be an aggravated felony where the underlying crimes is an aggravated felony. See Kawashima v. Holder, 132 S.Ct. 1166 (2012) (guilty plea to one count of aiding and assisting in the preparation of false tax returns is an AF under §1101(a)(43)(M)(i))

For additional practice tips and an expanded guide, please contact Ubong E. Akpan and view the Federal Defender Immigration Reference Aide at fd.org or the Immigration Consequences of Select Crimes page at fd.org.

FDFCDC 159 VII. ADDITIONAL RESOURCES

Additional Resources

For Immigration Advice for Federal Defenders and federal CJA Attorneys Contact the National Immigrant Justice Center – www.immigrantjustice.org [email protected] (312) 660-1610

Training Division Resources (fd.org login access required) Immigration Consequences of Convictions, click here Immigration & Offenses involving Noncitizens, click here

Other Resources Immigrant Legal Resource Center – www.ilrc.org National Immigration Project of the National Lawyer’s Guild – www.nipnlg.org

FDFCDC 160

VIII. APPENDIX 17-43 a. ILRC Immigrant Defendant Questionnaire 18-20 b. Immigrant Defense Project’s Immigration Consequences of Convictions Summary Checklist – DACA Supplement 21-22 c. Fd.org Immigration Resources 23 d. List of Federal Misdemeanors 24-43

FDFCDC 161 Immigrant Legal Resource Center Immigrant Defendant Questionnaire www.ilrc.org August 2018

IMMIGRANT DEFENDANT QUESTIONNAIRE “USC” stands for U.S. Citizen and “LPR” stands for Lawful Permanent Resident (green card) Attorney name, email Defendant’s name Defendant’s A# if any

Def’s Country of Birth Def’s Date of Birth In custody? ICE detainer or interview? Yes No Yes No Don't Know

1. ENTRY: Date first entered US Visa type (or none) Departures from U.S. (approximate OK; append list) Date/s and length of departure/s: 2. IMMIGRATION STATUS AND RELATIVES a. Lawful permanent resident (“green card”) b. Other immigration status

Yes No Date Obtained? Undocumented Doesn’t know Has “Employment Authorization” card but On what basis (e.g. family visa, refugee): unsure of status Refugee Asylee Check one. To obtain LPR status, D: Temporary Protected Status U visa --Went to an interview in the home country Deferred Action Childhood Arrival (DACA) --Processed (“adjusted status”) here in U.S. Other:

d. Parent, Spouse, Child, Significant Other is Possible U.S. citizenship (LPRs): LPR or USC? Yes No Before D’s 18th birthday, was D an LPR and at least one of D’ parents a USC? Yes No List each relationship (including stepparents) and (Stepparents do not qualify.) say whether the person is an LPR or USC. Include the age of each child. (Possible family c. Possible U.S. citizenship (all persons): immigration/relief)

Grandparent or parent may have been USC at time of D’s birth. (Stepparents do not qualify.) BE SURE TO PHOTOCOPY ANY IMMIGRATION Yes No Comments: CARD OR DOCUMENT

3. PRIOR REMOVAL / DEPORTATION / VOLUNTARY DEPARTURE Was D ever deported Saw an Describe what happened, to extent Where? When? For each or got voluntary immigration possible (Just signed form before deportation or voluntary departure? judge? leaving U.S.? Caught at the border?) departure

Yes No Yes Don’t know No

FDFCDC 162 Immigrant Legal Resource Center Immigrant Defendant Questionnaire www.ilrc.org August 2018

Immigrant Defendant Questionnaire, p. 2 Attorney name: Client name or case number:

NOTE: Checking the box means the client might be eligible for the relief. To see a two-page summary of each relief plus the crimes bars, see N.17 Defenders Relief Toolkit at www.ilrc.org/chart.

4. Has your LPR client lived in the U.S. for at least seven years? (LPR Yes No cancellation)

5. Has your undocumented client lived in the U.S. for at least ten years, and does Yes No he or she have a parent, spouse or unmarried child under age 21 who is a USC or LPR? (Non-LPR cancellation)

6. Has client or a family member been abused by a spouse, parent, or adult child? Yes No a. Client, or client’s parent or child, may have been abused (including emotional abuse) by a USC or LPR spouse, parent, or adult child. (VAWA) Yes No -What is the relationship between abuser and abused: -What is the abuser’s immigration status:

b. Client under age 21 lives with just one parent. (Special Immigrant Juvenile) Yes No

c. Client is charged with a DV or stalking offense, or has a conviction, but in fact is the primary victim in the relationship. (Domestic Violence Waiver) Yes No

7. Has your client been a victim of a crime, or of human trafficking? Yes No a. Victim of a crime including, but not limited to, DV, assault, false imprisonment, extortion, stalking, labor-related, sexual abuse, etc., and was or would be willing to cooperate in investigation or prosecution of the crime. (U visa) Yes No

b. Victim of (a) sex trafficking of persons (if under age 18, victim could have consented), or (b) labor trafficking, e.g., forced to work by threat, fraud, coercion, etc. (T visa) Yes No

8. Is your client afraid to return to his or her home country for any reason? Yes No (Asylum, refugee, withholding, Convention Against Torture, Temporary Protected Status)

9. Did your client, or their parent or spouse, live in the U.S. in the 1980’s or 1990’s? Yes No (Amnesty, Family Unity, NACARA, HRIFA)

10. Is your client or their spouse, parent, or child a U.S. veteran or serviceperson? Yes No (Possible naturalization or adjustment benefits)

FDFCDC 163 Immigrant Legal Resource Center Immigrant Defendant Questionnaire www.ilrc.org August 2018

Immigrant Defendant Questionnaire, p. 3 Attorney name: Client name or case number:

Information on Prior Conviction/s from Any Jurisdiction Include additional page if needed Code section F/M Offense Conviction Sentence Post-Con relief (PC Date Date 17, etc)

Information on Current Charges Include additional page if needed Code sec. F/M, strike, Date Other info etc. committed

Current Plea Offer/s if Any Include additional page if needed Code sec F/M, strike, Sentence Other info: DA flexibility, priorities; Your etc comments

FDFCDC 164 For more comprehensive legal resources, visit the Immigrant Defense Project website at Immigration Consequences of Crimes Summary Checklist immdefense.org or call 212-725-6422 for individual case support. CRIMINAL INADMISSIBILITY GROUNDS CRIMINAL DEPORTABILITY GROUNDS CRIMINAL BARS ON OBTAINING U.S. Will or may prevent a noncitizen from being able to obtain lawful admission status in the Will or may result in deportation of a noncitizen who already has CITIZENSHIP – Will prevent an LPR from U.S. May also prevent a noncitizen who already has lawful admission status from being lawful admission status, such as a lawful permanent resident (LPR) being able to obtain U.S. citizenship. able to return to the U.S. from a future trip abroad. green card holder or a refugee. Conviction or admission of the following crimes Conviction or admission of a Controlled Substance Offense, or DHS reason to believe that Conviction of a Controlled Substance Offense bars the finding of good moral character required the individual is a drug trafficker EXCEPT a single offense of simple possession of 30g or less of marijuana for citizenship for up to 5 years: ➤ Conviction or admission of a Crime Involving Moral Turpitude (CIMT), including: Conviction of a Crime Involving Moral Turpitude (CIMT) [see Criminal ➤Controlled Substance Offense (unless single offense of simple possession of 30g or less of ➤➤Offenses with an intent to steal or defraud as an element (e.g., theft, forgery) Inadmissibility Gds] marijuana) ➤➤Offenses in which bodily harm is caused or threatened by an intentional act or serious bodily ➤➤One CIMT committed within 5 years of admission into the US and for ➤➤Crime Involving Moral Turpitude (unless harm is caused or threatened by a reckless act (e.g., murder, rape, some manslaughter/assault which a prison sentence of 1 year or longer may be imposed single CIMT and the offense in not punishable offenses) ➤➤Two CIMTs committed at any time after admission and “not arising out ➤➤Most sex offenses > 1 year (e.g., in New York, not a felony) of a single scheme” + does not involve a prison sentence > 6 ➤➤Petty Offense Exception – for one CIMT if the client has no other CIMT + the offense is not Conviction of a Firearm or Destructive Device Offense months) punishable >1 year + does not involve a prison sentence > 6 mos. ➤ Conviction of a Crime of Domestic Violence, Crime Against Children, ➤2 or more offenses of any type + aggregate Prostitution (e.g., conviction, admission, or intent to engage in U.S.) and other unlawful prison sentence of 5 years Stalking, or Violation of Protection Order (criminal or civil) Commercialized Vice ➤➤2 gambling offenses Conviction of two or more offenses of any type + aggregate prison sentence of 5 yrs. Conviction of an Aggravated Felony ➤➤Confinement to a jail for an aggregate period ➤➤Consequences, in addition to deportability: of 180 days CRIMINAL BARS ON 212(h) WAIVER OF CRIMINAL INADMISSIBILITY based on ♦ ♦Ineligibility for most waivers of removal Conviction of an Aggravated Felony on or extreme hardship to USC or LPR spouse, parent, son or daughter ♦ ♦Permanent inadmissibility after removal after Nov. 29, 1990 (and conviction of murder at ➤➤Conviction or admission of a Controlled Substance Offense other than a single offense of ♦♦Enhanced prison sentence for illegal reentry any time) permanently bars the finding of moral simple possession of 30 g or less of marijuana FDFCDC 165 ➤➤Crimes included, probably even if not a felony: character required for citizenship ➤➤Conviction or admission of a violent or dangerous crime is a presumptive bar. ♦♦Murder ➤➤In the case of an LPR (except one who adjusted to LPR status inside U.S. and who has not ♦♦Rape entered as an LPR from outside U.S.), conviction of an Aggravated Felony [see Criminal ♦♦Sexual Abuse of a Minor “CONVICTION” as defined for immigration Deportability Gds], or any Criminally Inadmissible offense if removal proceedings initiated ♦♦Drug Trafficking (including most sale or intent to sell offenses, purposes before 7 yrs of lawful residence in U.S. but also including possession of any amount of flunitrazepam and A formal judgment of guilt of the noncitizen entered CRIMINAL BARS ON ASYLUM based on well-founded fear of persecution in country possibly certain second or subsequent possession offenses where by a court, OR, if adjudication of guilt has been of removal OR WITHHOLDING OF REMOVAL based on threat to life or freedom in the criminal court makes a finding of recidivism) withheld, where: country of removal ♦♦Firearm Trafficking (i) A judge or jury has found the noncitizen guilty ♦ Conviction of a “Particularly Serious Crime” (PSC), including the following: ♦Crime of Violence + at least 1 year prison sentence* or the noncitizen has entered a plea of guilty ♦ ➤➤Aggravated Felony [see Criminal Deportability Gds] ♦Theft or Burglary + at least 1 year prison sentence* or nolo contedere or has admitted sufficient ♦ facts to warrant a finding of guilt, and ♦♦All aggravated felonies will bar asylum ♦Fraud or tax evasion + loss to victim(s) >$10, 000 ♦ ♦♦Aggravated felonies with aggregate 5 years sentence of imprisonment will bar ♦Prostitution business offenses (ii) The judge has ordered some form of withholding, & aggravated felonies involving unlawful trafficking in controlled substances ♦♦Commercial bribery, counterfeiting, or forgery + at least 1 year punishment, penalty, or restraint on the are a presumptive bar to withholding of removal prison sentence* noncitizen’s liberty to be imposed ➤➤Violent or dangerous crime will presumptively bar asylum ♦♦Obstruction of justice or perjury + at least 1 year prison THUS: ➤➤Other PSCs – no statutory definition; see case law sentence* ➤➤A court-ordered drug treatment or domestic ♦♦Various federal offenses – money laundering, certain firearms violence counseling alternative to incarceration CRIMINAL BARS ON 209(c) WAIVER OF CRIMINAL INADMISSIBILITY based and explosive materials offenses (including arson), alien disposition IS a conviction for immigration on humanitarian purposes, family unity, or public interest (only for persons who have smuggling, etc. – and analogous state offenses purposes if a guilty plea is taken (even if the asylum or refugee status) ♦♦Other offenses listed at 8 USC 1101(a)(43) guilty plea is or might later be vacated) ➤➤DHS reason to believe that the individual is a drug trafficker ♦♦Attempt or conspiracy to commit any of the above ➤➤A deferred adjudication without a guilty plea IS ➤➤Violent or dangerous crime is a presumptive bar NOT a conviction * The “at least 1 year” prison sentence requirement includes a suspended ➤➤NOTE: A youthful offender adjudication IS NOT CRIMINAL BARS ON NON-LPR CANCELLATION OF REMOVAL based on prison sentence of 1 year or more. a conviction if analogous to a federal juvenile continuous physical presence in U.S. for 10+ years; and “exceptional and extremely delinquency adjudication unusual” hardship to USC or LPR spouse, parent or child CRIMINAL BARS ON LPR CANCELLATION OF REMOVAL based on LPR status of 5 yrs or more and continuous residence in U.S. for 7 ➤➤Conviction of an offense described under the criminal inadmissibility or deportability yrs after admission (only for persons who have LPR status) grounds, regardless of whether or not the ground would apply to the person, e.g., one ➤ CIMT with a potential sentence of 1 year or longer [see Criminal Deportability Gds] even if ➤Conviction of an Aggravated Felony ➤ the offense was not w/n five years of an admission to the US ➤Offense triggering removability referred to in Criminal Inadmissibility Grounds if committed before 7 yrs of continuous residence in U.S. ➤➤Conviction or admission of crimes barring required finding of good moral character during 10 year period [see Criminal Bars on Obtaining U.S. Citizenship] © 2017 Immigrant Defense Project (Last updated June 2017) IMMIGRATION CONSEQUENCES OF CONVICTIONS SUMMARY CHECKLIST – DACA Supplement Criminal bars relating to DACA temporary administrative status program (Updated June 16, 2017). © 2017 Immigrant Defense Project DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) IS BASED IN PART ON: SOME OTHER OFFENSES/CONDUCT THAT ♦♦entry into the U.S. as a child under age 16 before June 15, 2007 CAN LEAD TO A DENIAL OF PROSECUTORIAL ♦♦continuous residence in the U.S. since June 15, 2007 DISCRETION TO GRANT DACA STATUS ♦♦currently in school, high school degree or GED, or honorably discharged veteran But certain convictions will generally prevent non-citizens from obtaining DACA: status ➤➤ Convictions or other information indicating One felony conviction that the applicant is a threat to national ➤ ➤ Any federal, state or local offense that is punishable by imprisonment for a term exceeding one year security or public safety. DHS considers that ♦♦Does not include state immigration-related offenses such a threat includes, but is not limited to, One “significant misdemeanor” conviction, including: gang membership, participation in criminal ➤➤ An offense punishable by imprisonment of one year or less but greater than five days (regardless of sentence activities, or participation in activities that actually imposed) that is: threaten the U.S. ♦♦Domestic violence ♦♦Sexual abuse or exploitation DISPOSITIONS THAT AVOID AUTOMATIC FDFCDC 166 ♦♦Burglary DISQUALIFICATION ♦♦Unlawful possession or use of a firearm ♦♦Drug distribution or trafficking ➤➤ Juvenile dispositions do not bar DACA (but ♦♦Driving under the influence adult convictions of juveniles may do so) NOTE: The above list may include certain offenses that are not classified as misdemeanors in the convicting ➤➤ Expunged convictions do not bar DACA jurisdiction, e.g. domestic violations or driving under the influence traffic infractions, if punishable by more than five days in prison ➤➤ Any other offense punishable by imprisonment of one year or less for which the person received a sentence of time in custody of more than 90 days IMPORTANT: Potential DACA applicants ♦♦Suspended sentences do not count towards the 90 days who may wish to seek LPR or other Three misdemeanor convictions formal lawful admission status in the ➤➤ Three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, future should also consider the Criminal or scheme of misconduct Inadmissibility Grounds on the reverse ♦♦ Includes only federal, state, or local offenses punishable by imprisonment of one year or less but greater side because a conviction triggering than five days (thus, may include certain low level offenses not classified as misdemeanors if punishable inadmissibility, even if it does not bar by more than five days in prison) DACA, could affect the person’s future ♦♦Does not include minor traffic offenses (such as driving without a license) ability to obtain formal lawful status ♦♦Does not include state immigration-related offenses

Note: Anyone who has had contact with the criminal legal system who is considering an application to initiate or renew DACA status should proceed with caution. There is uncertainty about how the DACA criminal bars will be applied under the Trump administration, and there are some preliminary indications that any contact with the criminal legal system may lead to heightened scrutiny of the application

IMMIGRATION RESOURCES

The Defender Services Office Training Division has many resources to assist federal defenders and CJA panel attorneys who represent noncitizens facing federal criminal charges. Top 5 Things to Know 1) You can get answers to your immigration questions right away! The Defender Services Office has established a partnership with Heartland Alliance's National Immigrant Justice Center (NIJC) to provide training and resources to CJA practitioners around the country on immigration-related issues. Federal defenders and CJA panel attorneys can call NIJC's Defenders Initiative at (312) 660-1610 or e-mail [email protected] with questions regarding potential immigration issues affecting their clients. An NIJC attorney will respond to the inquiry within 24-48 business hours. Further information on the Defenders Initiative can be found on the NIJC's web site.

2) You can get tools to understand immigration consequences of crimes! The Immigration Consequences of Conviction page on fd.org provides a wealth of information on the obligation to advise on immigration consequences of conviction, from tools for determining a client’s immigration status, such as client questionnaires, to immigration consequences reference aides and a glossary of immigration terms.

3) You can get step-by-step guides on common immigration offenses! The Immigration and Offenses Involving Noncitizens page on fd.org offers practice guides on how to defend common immigration charges, such as illegal reentry and alien smuggling cases.

4) You can get sample briefing on illegal reentry cases! You can access the illegal reentry motions bank, which provides sample briefing for 18 U.S.C. §1326(d) motions to dismiss.

5) You can watch and learn tips on representing noncitizens! In addition to all of the written resources and direct advice listed above, you can watch our immigration webinars and recorded videos on representing noncitizens. Check out Mary Kramer’s Padilla and Attorneys’ Obligation When Advising Clients and obtain CLE credit.

FOR INFORMATION ABOUT THESE RESOURCES OR ANY QUESTIONS, PLEASE CALL OUR HOTLINE

FDFCDC 167 Table of Federal Misdemeanors * Title 18: Crimes and Criminal Procedure * Aircraft and Motor Vehicles/Animals, Birds, Fish, and Plants

18:§35(a) Importing or conveying false information

18:§41 Hunting, fishing, trapping; disturbance or injury on wildlife refuges

18:§42(5)(b) Importation or shipment of injurious mammals, birds, fish, amphibia, and reptiles

18:§43(a) Force, violence, and threats involving animal enterprises

18:§46 Transportation of water hyacinths

18:§47 Use of aircraft/motor vehicles to hunt certain wild horses/burros; pollution of watering holes Assault

18:§ 111 Assaulting, resisting, or impeding certain officers or employees (simple)

18:§11 2(b) Protection of foreign officials, official guests, and internationally protected persons

18:§113(a)(4-5) Assaults within maritime and territorial jurisdiction

18:§115 Influencing, impeding, retaliating against federal official by threats to family member (simple) Bankruptcy

18:§154 Adverse interest and conduct of officers

18:§155 Fee agreements in cases under Title 11 and receiverships

18:§156 Knowing disregard of bankruptcy law or rule Bribery, Graft, and Conflicts ofInterest

18:§201(c) Bribery of public officials and witnesses

18:§203-209 These apply where the defendant "engages" rather than ''willfully engages" in prohibited conduct

18:§210 Offer to procure appointive public office

18;§211 Acceptance or solicitation to obtain appointive public office

18:§212 Offer of loan or gratuity to financial institution examiner

18:§213 Acceptance of loan or gratuity by financial institution examiner

18:§214 Offer for procurement of Federal Reserve bank loan and discount of commercial paper

18:§215 Receipt of commissions or gifts for procuring loans

18:§217 Acceptance of consideration for adjustment of fann indebtedness

18:§219(a) Officers and employees acting as agents of foreign principals Child Support/Civil Rights/Matters Affecting Government

18:§228 Failure to pay legal child support obligations

18:§242-248 Civil rights misdemeanors, dependent on type of activity and the gravity of the injury FDFCDC 168 18:§288 False claims for postal losses 18:§290 Discharge papers withheld by claim agent

18:§291 Purchase of claims for fees by court official

18:§292 Solicitation of employment and receipt of unapproved fees re: federalemployees• compensation Coins and Currency 18:§333 Mutilation of national bank obligations

18:§336 Issuance of circulating obligations of less than $1.00 18:§337 Coins as security for loans Congressional, Cabinet, and Supreme Court Assassination, Etc. 18:§35I(e) Congressional, Cabinet, and Supreme Court assassination, kidnapping, and assault Conspiracy/Contempts/Contracts 18:§371 Conspiracy to commit offense or to defraudUnited States

18:§402 Contempts constituting crimes 18:§403 Protection of the privacy of child victims and child witnesses 18:§435 Contracts in excess of specific appropriation

18:§440 Mail contracts 18:§441 Postal supply contracts

18:§442 Printing contracts Counte,feiting and Forgery

18:§475 Imitating obligations or securities

18:§480 Possessing counterfeit foreign obligations or securities 18:§483 Uttering counterfeit foreignbanknotes 18:§489 Making or possessing likeness of coins 18:§491 Tokens or paper used as money

18:§492 Forfeiture of counterfeit paraphernalia 18:§498 Military or navel discharge certificates

18:§510 Forging endorsements on Treasury checks or bonds or securities of the United States

18:§511A Unauthorized application of theftprevention decal or device Elections and Political Activities

18:§594 Intimidation of voters 18:§595 Interferenceby administrative employees of Federal, State, or Territorial Governments

18:§596 Polling armed forces

FDFCDC 169 I 8:§597 Expenditures to influence voting 18:§598 Coercion by means of relief appropriations 18:§599 Promise of appointment by candidate 18:§600 Promise of employment or other benefitfor political activity 18:§601 Deprivation of employment or other benefit forpolitical contribution 18:§604 Solicitation from persons on relief 18:§605 Disclosure of names of persons on relief 18:§611 Voting by aliens

--,-L ,�·,,·,,._,·; and hefi 18:§641 Public money, property, or records 18:§643 Accounting generally for public money 18:§644 Banker receiving unauthorized deposit of public money 18:§645 Court officers generally 18:§646 Court officersdepositing registry moneys 18:§647 Receiving loan from court officer 18:§648 Custodians, generally, misusing public funds 18:§649 Custodians failing to deposit moneys 18:§650 Depositaries failing to safeguard deposits 18:§651 Disbursing officerfalsely certifying full payment 18:§652 Disbursing officerpaying lesser in lieu of lawful amount 18:§653 Disbursing officermisusing public funds 18:§654 Officer or employee of United States converting propertyof another I 8:§655 Theft by bank examiner 18:§656 Theft,embezzlement, or misapplication by bank officeror employee 18:§657 Lending, credit, and insurance institutions 18:§658 Propertymortgaged or pledged to fann creditagencies 18:§659 Interstate or foreign shipments by carrier 18:§661 Special maritime and tenitorial jurisdiction 18:§662 Receiving stolen property within special maritime and territorial jurisdiction 18:§665 Theft or embezzlement fromemployment and training funds 18:§669 Thellor embezzlement in connection with health care

FDFCDC 170 Emblems, Insignia, and Names 18:§700 Desecration of the flag of the United States 18:§701 Officialbadges, identificationcards, other insignia 18:§702 Uniform of armed forcesand Public Health Service 18:§703 Uniformof friendlynation 18:§704 Military medals or decorations 18:§705 Badge or medal of veterans' organizations 18:§706 Red Cross 18:§707 4-H Club emblem fraudulentlyused 18:§708 Swiss Confederationcoat of arms 18:§709 False advertising or misuse of names to indicate Federal agency 18:§710 Cremation urnsfor military use 18:§711 ..Smokey Bear" character or name 18:§71 la "Woodsy Owl" character, name, or slogan 18:§712 Misuse of names, words, emblems, or insignia 18:§713 Use of likenesses of the great seal of the United States 18:§715 "The Golden Eagle Insignia" Escape and Rescue/Espionage and Censorship 18:§751 Prisoners in custody of institution or officer 18:§752 Instigating or assisting escape from Federal Officers 18:§755 Officer permittingescape 18:§795 Photographing and sketching defense installations 18:§796 Use of aircraft for photographing defenseinstallations 18:§797 Publication and sale of photographs of defense installations 18:§799 Violations of NASA regulations Explosives/Extortions and Threats 18:§836 Transportation of fireworks into State prohibiting sale or use 18:§842 Importation, manufacture,distribution, and storage of explosive materials 18:§842U) Storage of explosive material 18:§842(k) Theft or loss of explosive material 18:§842(p) Distribution of informationrelating to explosives, etc. 18:§872 Extortionby officersor employees of United States

FDFCDC 171 l 8:§873 Blackmail

18:§875 Interstate communications

l 8:§876 Mailing threatening communications 18:§877 Mailing threatening communications from foreign country False Impersonation/Firearms 18:§916 4-H Club members or agents

18:§917 Red Cross members or agents 18:§924 Penalties: false statements by dealers, violations of §922(m), 922(q), 922(s), 922(t), and 922(x) 18:§930 Possession of firearmsand dangerous weapons in Federal facilities Foreign Relations/Fraud and False Statements 18:§961 Strengthening armed vessel of foreignnation 18:§1003 Demands against the United States 18:§1012 HUD transactions

18:§1013 Fann loan bonds and credit bank debentures 18:§1016 Acknowledgment of appearance or oath

18:§1018 Official certifieatesor writings 18:§1024 Purchase or receipt of military,naval, or veteran's facilitiesproperty

18:§1025 False pretenses on high seas and other waters

18:§1026 Compromise, adjustment, and cancellation of farm indebtedness 18:§1028 Certain identification fraud

18:§1 030(c)(2)(A) Certain computer fraud Gambling 18:§1082 Gambling ships 18:§1083 Transportation between shore and ship Indians 18:§1154 Intoxicants dispensed in Indian Country 18:§1156 Intoxicants possessed unlawfully

18:§1163 Embezzlement and theft from Indian tribal organizations

18:§1164 Destroying (Indian) boundaryand warningsigns

18:§1165 Hunting, trapping, or fishing on Indian land

18:§1167 Theft fromgaming establishments on Indian lands

18:§1168 Theft by officers or employees of gaming establishments on Indian lands

FDFCDC 172 18:§1169 Reporting of child abuse 18:§1170 Illegally trafficking in Native American human remains and cultural items Liquor Traffic/Lotteries 18:§1262 Transportation (liquor, etc.) into State prohibiting sale

18:§1263 (Misrepresented, etc.) - Marks and labels on packages (liquor) 18:§1264 (Unlawful) - Delivery to consignee (liquor)

18:§1265 (Unlawful) - C.O.D. Shipments (liquor)

18:§1301 Importing or transporting lottery tickets 18:§1302 Mailing lottery tickets

18:§1303 Postmaster or employee as lottery agent 18:§1304 Broadcasting lottery information 18:§1306 Participation by financialinstitutions Malicious MischieflMilita,yand Navy/Miscellaneous 18:§1361 Governmentproperty or contracts 18:§1382 Entering military, naval, or Coast Guard property 18:§1384 Prostitution near military and naval establishments 18:§1385 Using Annyor Air Force as posse comitatus

18:§3 Accessory afterthe fact 18:§7 Special maritime and territorial jurisdiction of the United States defined 18:§13 Laws of States adopted for areas within Federal jurisdiction Obscenity/Obstruction o.f.Justice

18:§1460 Possession with intent to sell, and sale, of obscene matter on Federal property 18:§1 464 Broadcasting obscene language 18:§1468 Distributing obscene material by cable or subscription TV 18:§1501 Assault on process server 18:§1502 Resistence to extradition agent 18:§1503 Influencingor injuring officeror juror

18:§1504 Influencingjuror by writing

18:§1507 Picketing or parading

18:§1508 Recording/listening to/observing proceedings of grand or petit juries while deliberating or voting

18:§1509 Obstructionof court orders 18:§ 1512(c) Tampering (harassing) witness, victim, or informant

FDFCDC 173 18:§1513 Retailing against witness, victim, or infonnantin a misdemeanor case S,:,ri·iu'

18:§1693 Carriage of mail generally 18:§1694 Can-iage of matter out of mail over post routes 18:§1695 Can·iage of matter out of mail on vessels 18:§1696 Private express for letters and packets 18:§1697 Transportation of persons acting as private express 18:§1698 Prompt delivery of mail from vessel

18:§1699 Ce1tification of delivery from vessel 18:§1700 Desertion ofmails 18:§1701 Obstrnction of mails generally 18:§1703(b) Delay or destruction of mail or newspapers 18:§1707 Theft of property used by Postal Service 18:§17[0 Theftof newspapers 18:§1711 Misappropriation of postal funds 18:§1713 Issuance of money orders without payment 18:§1716 Ittjurious articles as nonmai!able 18:§l716A Nonmailable locksmithing devices and motor vehicle master keys 18:§1716B Nonmailableplants 18:§1716C Forged agricultural certifications l8:§1716D Nonmailable injurious animals I 8:§ 1719 Pranking privilege 18:§1720 Cancelled stamps and envelopes 18:§1721 Sale or pledge of stamps 18:§)722 False evidence to secure second-class rate 18:§1723 Avoidance of postage by using lower class matter 18:§1725 Postage unpaid on deposited mail matter 18:§1726 Postage collected unlawfully 18:§1729 Post officecondncted without authority 18:§1730 Uniforms of can-iers 18:§1731 Vehicles falsely labeled as carriers 18:§1732 Approval of bond or sureties by postmaster 18:§1733 Mailing periodicalpublications withont prepayment of postage FDFCDC 174 18:§1734 Editorials and other matters as "advertisements" Presidential and Presidential StajfAssassination, Kidnapping, and Assault 18:§1751 Simple assault on staff 18:§1752 Temporary residences and offices - trespass and disruption Prison Made Goods/Prisons/Professionsand Occupations 18:§1761 Transportation or importation

18:§1762 Marketing packages 18:§1791 Providing or possessing contraband in prison

18:§1821 Transportation of dentures Public Lands 18:§1851 Coal depredations 18:§1852 Timber removed or transported 18:§1853 Trees cut or injured 18:§ 1854 Trees boxed forpitch or turpentine 18:§1856 Fires left unattended and unextinguished 18:§1857 Fences destroyed; livestock entering

18:§1858 Survey marks destroyed or removed 18:§1860 Bids at land sales

18:§1861 Deception of prospective purchasers 18:§1863 Trespass on national forest lands

18:§1 864 Hazardous or injurious devises on Federal lands Public Ojficers and Employees 18:§1901 Collecting or disbursing officer trading in public property 18:§1 903 Speculation in stocks or commodities affecting crop insurance

18:§1905 Disclosure of confidential information, generally 18:§ 1906 Disclosure of information from bank examination report 18:§ 1907 Disclosure of informationby farm credit examiner

18:§1 909 Examiner providing other services 18:§1911 Receiver mismanaging property

18:§1912 Unauthorized feesfor inspection of vessels

18:§1913 Lobbying with appropriated moneys

18:§1915 Compromise of customs liabilities

FDFCDC 175 18:§1916 Unauthorized employment and disposition of lapsed appropriations

18:§1917 Interference with civil service examinations

18:§1918 Disloyalty and asserting the right to strike against the Government

18:§1919 False statement to obtain unemployment compensation for Federal service 18:§ 1920 False statement or fraud to obtain Federal employees' compensation

18:§1921 Receiving Federal employees' compensation after marriage 18:§1922 False or withheld report concerningFederal employees' compensation

18:§ 1923 Fraudulent receipt of payments of missing persons 18:§1924 Unauthorized removal and retention of classified documents or material Railroad Carriers/Records and Reports/Robbery and Burglary 18:§ 1991 Entering train to commit crime 18:§2074 False weather reports

18:§2075 Officer failing to make returns or reports 18:§2076 Clerk of United States District Court

18:§2113(b) Bank robbery and incidental crimes Seamen and Stowaways/Searches and Seizures 18:§2194 Shanghaiing sailors

18:§2195 Abandonment of sailors 18:§2196 Drunkenness or neglect of duty by seamen

18:§2199 Stowaways 18:§2233 Rescue of seized property

18:§2234 Authority exceeded in executing warrant 18:§2235 Search warrant procured maliciously

18:§2236 Searches without warrant Sexual Abuse/SexualExploitation ofC/zildren 18:§2244(a)(3) Abusive sexual contact (minor)

18:§2244(a)(4) Abusive sexual contact (ward)

l 8:§2244(b) Abusive sexual contact (other circumstances) 18:§2258 Failure to reportchild abuse Shipping

18:§2277 Explosives or dangerous weapons aboard vessels

18:§2278 Explosives on vessels carrying steerage passengers

FDFCDC 176

18:§2279 Boarding vessels beforearrival Stolen Property/Stored Wire and Electronic Communications 18:§2319 Criminal infringement of a copyright

18:§270l(b)(2) Unlawful access to stored communications Personal info frorn Motor Vehicle Records/Pen Registers l8:§2723(a) Penalties

18:§3121(d) General prohibition on pen registers and trap and trace devise use Release and Detention l 8:§3 l 46(b) Penalty for failure to appear on a misdemeanor charge or material witness bond

18:§3147 Penalty fora misdemeanor while on release on a misdemeanor Title 4: Flag and Seal, Seat of Government, and the States The Flag 4:§3 Use of flag foradvertising purposes; mutilation of flag Title 5: Government Organization and Employees Pay Administration 5:§5501 Disposition of money accruing from lapsed salaries or unused appropriations forsalaries Title 7: Agriculture Grain Standards/Stockyardsand StockyardDealers

7:§85 Suspension, revocation, refusalto renew licenses 7:§86 Refusalof inspection and weighing services

7:§203 Activity as stockyard dealer or market agency; benefitsto business and welfare of stockyard 7:§207(g) & (h) Schedule of rates; filing and exhibition; change in rates; etc. 7:§215 Failure to obey orders lloneybees/Cotlon Statistics/Perishable Commodities

7:§282 Punishment for unlawful importation of honeybees 7:§472 Information furnished of confidential character

7:§473 Persons required to furnishinformation; request; failure to furnish; falseinformation

7:§473c-2 Penalties foroffenses relating to sampling of cotton

7:§499c Penalty for failureto obtain license Tobacco Statistics/Tobacco Inspection

7:§503 Reports; necessity; by whom made; penalties 7:§5ll(k) Penalty forviolations

FDFCDC 177

Peanut Statistics/Seeds/Wheat Mark 7:§953 Reports; by whom made; penalties 7:§ 1596 (Foreign Commerce) - Penalties 7:§1642(c) Penalty for violation Title 8: Aliens and Nationality immigration· Inspection, Apprehension Examination, etc. 8:§ 122l(g) Penalties against noncomplying shipments or aircraft Alien Crewmen/Registration of Aliens/Penalties 8:§1281(d) Violation for failing to deliver complete, true, and correct lists or reports 8:§1282(c) Conditional permits to land temporarily 8:§1284(a) Control of alien crewman 8:§ 1285 Employment on passenger vessels of aliens with certain disabilities 8:§ 1286 Discharge of alien crewman 8:§1287 Alien crewman brought into the United States with intent to evade immigrationlaws 8:§1304(e) Personal possession of registration or receipt card 8:§ 1306(a) Willful failureto register 8:§1306(b) Failure to notify change of address 8:§ 1306(c) Fraudulent statements 8:§1321 Prevention of unauthorized landing of aliens; failure to report 8:§1 324(a)(C)(2) Unlawful bringing of aliens into the United States 8:§1325 Improper entry by alien; time or place; misrepresentation and concealment of facts (first offense) Title 12: Banks and Banking National Banks/Federal Reserve/National Housing/FD.I.C. 12:§164 Penalty for failureto make reports 12:§334 Reports fromaffiliates; failureto furnish 12:§481 Appointment of examiners; member banks, state banks, and trust companies; reports 12:§1723a(e) Prohibition against use of name; injunction; damages 12:§1828(h) Penalties for failure to timely pay assessments Title 13: Census q/jenses and Penalties/Foreign Commerce and Trade Statistics 13:§212 Refusalor neglect of employees to perform duties 13:§22l(a)(b) Refusalor neglect to answer questions; false answers

FDFCDC 178 13:§222 Giving informationwith intent to cause inaccurate enumeration of population 13:§223 Refusal,by owners, proprietors, etc. to assist census employees

13:§224 Failure to answer questions affectingcompanies, businesses, etc. and falseanswers

13:§305 Penalties forunlawful export information activities Title 14: Coast Guard Functions and Powers/Administration/Reserve and Auxilia,y 14:§83 Unauthorized aids to maritime navigation 14:§84 Interference with aids to navigation 14:§85 Aids to maritime navigation on fixed structures 14:§639 Penalty for unauthorized use of words "Coast Guard" 14:§892 Penalty for flying any flagor displaying insignia or wearing uniformor insignia of the Reserve Title 15: Commerce and Trade Wool Products/Fur Products 15:§68d Maintenance of records by wool manufacturers 15:§69f Maintenance of records by manufacturer or dealer Securities and Exchange/InvestmentAdvisers 15:§78ff(b) Failure to fileinformation, documents, or reports

15:§78u Investigations; injunctions and prosecution of offenses 15:§80b-9 Investigations; refusalto obey subpoena; refusalto testify;produce records, etc. Weights and Measures and Standard Time 15:§233 Violation of packed apples in barrels; sale of barrels

15:§235 Sale or shipment of barrel of less capacity than standard; punishment 15:§241 Selling lime in unmarked barrels and containers Falsely Stamped Gold or Silver or Goods }.;fanufactured

15:§298 Violations by manufacturers, wholesale, or retail dealers Natural Gas Miscellaneous/

15:§717t(b) Penalties for violation any rule, regulation, restriction, etc. made or imposed by the Commission

15:§1004 Penalties for violating Golden Gate Bridge tolls 15:§1007 Penalties forviolating San Francisco-Oakland Bay Bridge tolls Ilousehold Refrigerators/Automobile Information

15:§1212 Violations for transporting refrigerators without safety devices

15:§1233 Failure to affix or endorse required label; removal, alteration, illegibility of required label

FDFCDC 179 Title 16: Conservation Nalional Parks, Milita,y Parks, Monuments, and Seashores

16:§9a Government of military parks, national parks, monuments, etc.; violation of regs as misdemeanor

16:§26 Regulations forhunting and fishing in Yellowstone National Park; punishment; forfeitures

I6:§45e Violations of Sequoia and Yosemite National Park regulations

16:§98 Protection of game and fish in Mount Rainier National Park; forfeiture and punishments

16:§l 17c Hunting and fishing in Mesa Verde National Park; protection of property; statutes and rules I 6:§127 Hunting and fishing in Crater Lake National Park; rules and regulations

16:§146 Offenses within Wind Cave National Park

16:§170 Hunting and fishing in Glacier National Park; regulations l6:§198c Prohibited acts in Rocky Mountain National Park; rules and regulations

16:§204c Hunting and fishing in Lassen Volcanic National Park; protection of property; statutes and rules 16:§256b Hunting and fishing in Olympic National Park; protection of property; statute and rules 16:§354 Offenses within Mount McKinley National Park 16:§373 lnju1ies to propertywithin Hot Springs National Park

16:§374 Taking or use of or bathing in water in Hot Springs National Park; rules and regulations 16:§403c-3 Criminal offenses concerning hunting, fishing, and property in Shenandoah National Park

16:§403h-3 Hunting, fishing in Great Smoky Mountains National Park; protection of property; laws and rules

16:§404c-3 Criminal offenses re: hunting/fishing/property in Mammoth Cave National Park; rules & regs

16:§408k Hunting and fishing in Isle Royale National Park; protection of property; statutes and rules

16:§413 Offenses relating to structures and vegetation in national military parks 16:§414 Trespassing forhunting or shooting in national military parks 16:§422d Monuments, etc. protected; Moores Creek National Military Park

16:§423f Protection of monuments, etc.; Petersburg National Battlefield

16:§425g Protection of monuments, etc.; various parks in Virginia 16:§426i Protection of monuments, etc.; Stones River National Battlefield

16:§430q Offenses committed within Monocacy National Military Park

l6:§460k-3 Charges and fees; pennits; regulations; penalties; enforcement I6:§460n-5 Regulation of Lake Mead National Recreation Areas; violations and penalties J>rotection of limber!Prorecrion oj Wildl{!e

16:§606 Offenses for unlawful cutting on mineral lands 16:§666a Penalties for game, fur-bearing animals, and fish violations

FDFCDC 180 I 6:§668 I Prohibited acts pertaining to protection of bald and golden eagles Game and Bird Preserves/MigratoryBird Treaty

16:§690g Violation of laws and regulations within Bear River Refuge 16:§693a Rules and regulations for administration of Ouachita National Forest, violations

16:§707(a) Violations and penalties; forfeitures f Regulation of Sponges Taken from Gulof Mexico and Straits of Florida

16:§783 Punishment forviolations of law; liability of vessels Federal Regulation and Development of Power

16:§811 Operation of navigation facilities; rules and regulations 16:§825o(b) Rules and regulations pertaining to licensees and public utilities

Regulation of Whaling/Tuna Conventions

16:§916e Failure to keep returns, records, reports 16:§957(e) Violations; fines and forfeitures; application of related laws Title 17: Copyrights Copyright Notice/CopyrightInfringe ment

l 7:§407(d) Failure to deposit; demand 17:§504 Willfulinfringement; damages and profit Title 19: Customs Duties Foreign Trade Zones/TariffAct of 1930

19:§8ls Violations of regulations; offenses l9:§134l(b) Interferencewith functionsof United States InternationalTrade Commission 19:§1436 Violations of arrival, reporting, entry, and clearance requirements 19:§1454 Unloading of passengers 19:§1497 Failure to declare an article 19:§1510 Judicial enforcement; refusalto obey summons

19:§1584 Falsity or lack of manifest

19:§1595a Aiding unlawfulimportation (set at value of goods) Title 21: Food and Drugs Adulterated Foods or Dn,gs!Toxins/China

21: §23 Violation of packed apples in barrels; sale of barrels 21 :§63 Penalties; acts of agents deemed acts of principals 21:§158 Offenses; punishment

FDFCDC 181 21 :§212 Offenses; punishment; duty to enforce provisions Food; Dmg Art/Drug Abuse Prevention and Control 21 :§333 Prohibited acts and penalties

21 :§841(b)(4) Distributing small amount of marijuana for no remuneration 21:§842(c)(2) ... Dispensing violations 21 :§844 Simple possession 21 :§844a Simple possession: civil penalty

21:§961 Shipment violations under § 954 Title 26: Internal Revenue Code Alcohol, Tobacco. and Certain Other Excise Taxes 26:§5603(b) Failure to keep certain tax records 26:§5606 Penalty relating to containers of distilled spirits 26:§566l(b) Forfeiture for violation of laws, regulations relating to wine, other offenses 26:§5662 Alteration of wine labels 26:§5672 Failure of brewer to comply with requirements and to keep records and file returns

26:§5674 Unlawfulproduction or removal of beer

26:§5675 Intentional removal or defacement of brewer's marks and brand 26:§568l(a) Failure to post required sign 26:§5681(b) Posting or displaying false sign 26:§5681(c) Premises where no sign is placed or kept

26:§5683 Forfeiture for removal of liquors under improper brands

26:§5687 Offenses not specifically covered 26:§5762(b) Other tobacco offenses Crimes. Other O.ffenses. and Fmfeitures 26:§7203 Willful failure to file return, supply information, or pay tax

26:§7204 Fraudulent statement or failure to make statement to employees

26:§7205 Fraudulent withholding exemption certificateor failure to supply information

26:§7207 Fraudulent returns, statement, or other documents

26:§7209 Unauthorized use or sale of stamps

26:§7210 Failure to obey summons

26:§7211 False statements to purchasers or lessees relating to tax

26:§7212 Attempts to interferewith administration of internal revenue laws (threats only)

FDFCDC 182 26:§7213(b) Unauthorized disclosure of information 26:§7213A Unauthorized inspection of returns or returninformation 26:§7214(b) Interest of InternalRevenue officer or employee in tobacco or liquor production 26:§7215 Offenses with respect to collected taxes 26:§7216 Disclosure or use of infonnationby preparers of returns 26:§7261 Representation that retailers' excise tax is excluded from price of article 26:§7268 Possession with intent to sell in fraud of law or to evade tax 26:§7271 Offensesrelating to stamps (taxation) 26:§7272 Failure to register or re-register 26:§7273 Offenses relating to special taxes 26:§7342 Refusal to permit entry or examination (taxation) Title 27: Intoxicating Liquors Federal Alcohol Administration Act 27:§207 Jurisdiction; compromise of liability 27:§208 Interlocking directorates Title 29: Labor labor-Management Reporting and Disclosure Procedure 29:§530 Deprivation of rights by violence; penalty Title 33: Navigation and Navigable Waters f Protection o Navigable Waters lmprovemenls/Longshore and Harbor Workers' Compensation 33:§421 Deposit of refuse, etc.; in Lake Michigan near Chicago 33:§443 Permit for dumping; penalty for taking or towing boat or scow without permit 33:§445 Equipment and marking of boats or scows 33:§447 Bribery of inspector 33:§448 Returnof permit;penalty for failure to return 33:§449 Disposition of dredged matter; persons liable 33:§452 Taking shellfishor otherwise interferingwith navigation in New York Harbor channels 33:§938 Failure to secure payment of compensation Title 36: Patriotic and National Observances, Ceremonies, and Organizations Presidential /11augural Ceremonies/A1iscellaneous 36:§506 Duration of regulations and licenses and publication of regulations 36:§901(c) License to manufacture and sell service flagsand service lapel buttons

FDFCDC 183 Title38: Veterans' Benefits Insurance 38:§l987(a) Conspiracy for fraudulentinsurance application or claim

38:§1987(b) Swornstatement of material factknown to be false Title 40: Public Buildings, Property, and Works Contract Work Hours and Safety/US. Capitol Buildings and Grounds 40:§3708 Intentional violation by contractor or subcontractor having duty to employ

40: §5109(b) Public use; obstruction of roads; sale of articles, injuries to property; disorderly conduct; parades Smithsonian institution, National Gallery of Art, and John F Kennedy Center for the Performing Arts 40:§6307(a) Public use of grounds; displays & solicitation; protection & maintenance of specific buildings Public Buildings. Grounds, and Parks in the District of Columbia 40:§8103 Application of laws to public buildings and grounds Title 42: The Public Health and Welfare Public Health Service/SocialSecurity 42:§262 Regulation of biological products

42:§271(a) Violation of quarantine laws 42:§1307(a) Intent to defraudby making falserepresentations Compensation for lnjwy, Death, or Detention ofEmployees ofContractors with U.S. Outside U.S.

42:§1713 False statement or representation of a material fact in application forpayment 42:§1714 Legal services claims Federal Election Records/Civil Rights 42:§1974 Retention and preservation of records and papers by election officers; deposit with custodian

42:§1995 Criminal contempt proceedings; trial by jury 42:§2000e-5 Enforcement of unlawfulemployment practices

42:§2000e-8(e) Prohibited disclosures Atomic Energv

42:§2278a Trespass on Com.missioninstallations

42:§2278b Photographing, etc. of Commission installations Title 43: Public Lands Grazing Lands/Unlai,vful Inclosures or Occupancy

43: §315a Protection, administration, regulation, and improvement of districts; erosion and flood control

43:§1064 Violations by owner, part owner, or agent

FDFCDC 184 Title 45: Railroads Liab;/ity for Injuries to Employees 45:§60 Suppression of informationincident to accidents; separability Title 46: Shipping General Provisions/Operationof Vessels 46:§505 Violating regulation or order of Federal Maritime Commission or Secretary of Transportation 46:§21 lO(e) Failing to pay a feeor charge

46:§2302(b)(c) Negligent operations and interferingwith safeoperation 46:§2303(b) Duties related to marine casualty assistance and information 46:§2304 Duty to provide assistance at sea Vessels and Seamen/Carriage of Passengers 46:§3318(e) Altering, defacing, obliterating, etc. any plans ... with intent to deceive any United States official 46:§3501 Number of passengers 46:§3507 Passenger vessel security and safety requirements Vessels/Commercial Fishing/Load Lines 46:§431 l(b)(l) Wilfully operating a recreational vessel in violation of this chapter; etc. 46: §4507(b) Willfulviolation of this chapter or a regulation 46:§5116(d) Causing or allowing the departure of a vessel in violation of a detention order Marine Casualties/Protection and Relief 46:§6306 Coercing a witness in connection with a marine casualty or to induce a witness to leave jurisdiction 46:§11110 Detaining a seaman's clothing Vessels/Numberingl!dent(fication/Liens 46:§12133 Failure to make a certificate of documentation of a vessel available forexamination 46:§12309 Willfulviolation of regulations 46:§12507 Providing falseinformation re: identificationof a vessel or falsifying vessel identification number 46:§31330(a) Intent to defraudby mortgagor for failingto disclose obligation on vessel, incurring a obligation, etc Title 47: Telegraphs, Telephones, and Radiotelegraphs Submarine Cables/Wire or Radio Communication 47:§22 Negligent injury so as to interruptor embarrass telegraphic communication 47:§24 Vessels laying cables; signals; avoidance of buoys 47:§25 Fishing vessels; duty to keep nets from. cables 47:§502 Violation of rules and regulations imposed the Commission

FDFCDC 185 47:§507 Violation ofGreat Lakes Agreement Title 49: Transportation HAil. 49:§ 11903 Record-keeping and reporting 49:§ 11904 Unlawfuldisclosure ofinfonnation 49:§11905 Disobedience to subpoenas 49:§11906 Penalty fora rail carrier Jurisdiction/Civil and Criminal Penalties 49:§13508(e) Evading compliance with provisions; limited authority over cooperative associations 49:§13508 (f) Cooperative associations record-keeping 49:§14905 Loading and unloading motor vehicles 49:§14909 Disobedience to subpoenas 49:§14912 Weight-bumping in household goods transportation 49:§14915 Failure to give up possession of household goods in violation of a contract 49:§16102 Record-keeping and reporting violations 49:§16103 Unlawful disclosure ofinformation 49:§16104 Disobedience to subpoenas 49:§16105 General criminal penalty when specific penalty not provided RAIL Programs/Motor Vehicle and Driver Programs 49:§21311 False records and reports; failure of railroad carrier to fileaccident and incident reports 49:§28302 Violation of§ 28301 relating to working hours 49:§30307(a) Willfullydisclosing information received fromthe National Driver Register 49:§30307(b) Requesting infonnationfrom the National Driver Register under falsepretenses 49:§32507(b) Manufacturefor sale, sell, etc., a vehicle or equipment that doesn't conformto standards Title 50: War and National Defense 50 App. §473 Liquor sales to or by members of the Armed Forces or National Security Training Corps

50 App. §535(h) Personal property of service member who lawfully terminates residential or motor vehicle leases

Summary Chart Prepared by Betty J. Farr, Paralegal Arkansas Federal Public DefenderOrganization (Updated April 2012)

FDFCDC 186 THE FIRST STEP ACT OF 2018: WHAT YOU MUST KNOW TO HELP YOUR CLIENTS

Benjamin C. McMurray Carter Burwell Nicholas J. Xenakis

DISCUSSION OVERVIEW

Note: Additional materials for this presentation were provided via in advance to program attendees.

I. Introduction: Brief overview of the Act

II. Section 401: Changes to definitions for prior convictions used to enhance drug sentences

A. What the provision does

B. The story behind the provision’s enactment

FDFCDC 187 III. Section 402: Expansion of the statutory “safety valve” provision in drug cases

A. What the provision does

B. The story behind the provision’s enactment

IV. Section 403: Clarification of “stacking” provision in 18 U.S.C. § 924(c)

A. What the provision does

B. The story behind the provision’s enactment

FDFCDC 188 V. Title I: Creates the opportunity for some (but not all) inmates to earn “credits” towards early release to halfway house.

A. What the title does

B. The story behind the title’s enactment

FDFCDC 189 S. 756

One Hundred Fifteenth Congress of the United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Wednesday, the third day of January, two thousand and eighteen

An Act To reauthorize and amend the Marine Debris Act to promote international action to reduce marine debris, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.—This Act may be cited as the ‘‘First Step Act of 2018’’. (b) TABLE OF CONTENTS.—The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—RECIDIVISM REDUCTION Sec. 101. Risk and needs assessment system. Sec. 102. Implementation of system and recommendations by Bureau of Prisons. Sec. 103. GAO report. Sec. 104. Authorization of appropriations. Sec. 105. Rule of construction. Sec. 106. Faith-based considerations. Sec. 107. Independent Review Committee. TITLE II—BUREAU OF PRISONS SECURE FIREARMS STORAGE Sec. 201. Short title. Sec. 202. Secure firearms storage. TITLE III—RESTRAINTS ON PREGNANT PRISONERS PROHIBITED Sec. 301. Use of restraints on prisoners during the period of pregnancy and postpartum recovery prohibited. TITLE IV—SENTENCING REFORM Sec. 401. Reduce and restrict enhanced sentencing for prior drug felonies. Sec. 402. Broadening of existing safety valve. Sec. 403. Clarification of section 924(c) of title 18, United States Code. Sec. 404. Application of Fair Sentencing Act. TITLE V—SECOND CHANCE ACT OF 2007 REAUTHORIZATION Sec. 501. Short title. Sec. 502. Improvements to existing programs. Sec. 503. Audit and accountability of grantees. Sec. 504. Federal reentry improvements. Sec. 505. Federal interagency reentry coordination. Sec. 506. Conference expenditures. Sec. 507. Evaluation of the Second Chance Act program. Sec. 508. GAO review. TITLE VI—MISCELLANEOUS CRIMINAL JUSTICE Sec. 601. Placement of prisoners close to families. Sec. 602. Home confinement for low-risk prisoners. Sec. 603. Federal prisoner reentry initiative reauthorization; modification of imposed term of imprisonment.

FDFCDC 190 S. 756—2

Sec. 604. Identification for returning citizens. Sec. 605. Expanding inmate employment through Federal Prison Industries. Sec. 606. De-escalation training. Sec. 607. Evidence-Based treatment for opioid and heroin abuse. Sec. 608. Pilot programs. Sec. 609. Ensuring supervision of released sexually dangerous persons. Sec. 610. Data collection. Sec. 611. Healthcare products. Sec. 612. Adult and juvenile collaboration programs. Sec. 613. Juvenile solitary confinement. TITLE I—RECIDIVISM REDUCTION

SEC. 101. RISK AND NEEDS ASSESSMENT SYSTEM. (a) IN GENERAL.—Chapter 229 of title 18, United States Code, is amended by inserting after subchapter C the following: ‘‘SUBCHAPTER D—RISK AND NEEDS ASSESSMENT SYSTEM

‘‘Sec. ‘‘3631. Duties of the Attorney General. ‘‘3632. Development of risk and needs assessment system. ‘‘3633. Evidence-based recidivism reduction program and recommendations. ‘‘3634. Report. ‘‘3635. Definitions.

‘‘§ 3631. Duties of the Attorney General ‘‘(a) IN GENERAL.—The Attorney General shall carry out this subchapter in consultation with— ‘‘(1) the Director of the Bureau of Prisons; ‘‘(2) the Director of the Administrative Office of the United States Courts; ‘‘(3) the Director of the Office of Probation and Pretrial Services; ‘‘(4) the Director of the National Institute of Justice; ‘‘(5) the Director of the National Institute of Corrections; and ‘‘(6) the Independent Review Committee authorized by the First Step Act of 2018 ‘‘(b) DUTIES.—The Attorney General shall— ‘‘(1) conduct a review of the existing prisoner risk and needs assessment systems in operation on the date of enactment of this subchapter; ‘‘(2) develop recommendations regarding evidence-based recidivism reduction programs and productive activities in accordance with section 3633; ‘‘(3) conduct ongoing research and data analysis on— ‘‘(A) evidence-based recidivism reduction programs relating to the use of prisoner risk and needs assessment tools; ‘‘(B) the most effective and efficient uses of such programs; ‘‘(C) which evidence-based recidivism reduction programs are the most effective at reducing recidivism, and the type, amount, and intensity of programming that most effectively reduces the risk of recidivism; and ‘‘(D) products purchased by Federal agencies that are manufactured overseas and could be manufactured by prisoners participating in a prison work program without

FDFCDC 191 S. 756—3 reducing job opportunities for other workers in the United States; ‘‘(4) on an annual basis, review, validate, and release publicly on the Department of Justice website the risk and needs assessment system, which review shall include— ‘‘(A) any subsequent changes to the risk and needs assessment system made after the date of enactment of this subchapter; ‘‘(B) the recommendations developed under paragraph (2), using the research conducted under paragraph (3); ‘‘(C) an evaluation to ensure that the risk and needs assessment system bases the assessment of each prisoner’s risk of recidivism on indicators of progress and of regression that are dynamic and that can reasonably be expected to change while in prison; ‘‘(D) statistical validation of any tools that the risk and needs assessment system uses; and ‘‘(E) an evaluation of the rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates; ‘‘(5) make any revisions or updates to the risk and needs assessment system that the Attorney General determines appropriate pursuant to the review under paragraph (4), including updates to ensure that any disparities identified in paragraph (4)(E) are reduced to the greatest extent possible; and ‘‘(6) report to Congress in accordance with section 3634. ‘‘§ 3632. Development of risk and needs assessment system ‘‘(a) IN GENERAL.—Not later than 210 days after the date of enactment of this subchapter, the Attorney General, in consultation with the Independent Review Committee authorized by the First Step Act of 2018, shall develop and release publicly on the Depart- ment of Justice website a risk and needs assessment system (referred to in this subchapter as the ‘System’), which shall be used to— ‘‘(1) determine the recidivism risk of each prisoner as part of the intake process, and classify each prisoner as having minimum, low, medium, or high risk for recidivism; ‘‘(2) assess and determine, to the extent practicable, the risk of violent or serious misconduct of each prisoner; ‘‘(3) determine the type and amount of evidence-based recidivism reduction programming that is appropriate for each prisoner and assign each prisoner to such programming accordingly, and based on the prisoner’s specific criminogenic needs, and in accordance with subsection (b); ‘‘(4) reassess the recidivism risk of each prisoner periodi- cally, based on factors including indicators of progress, and of regression, that are dynamic and that can reasonably be expected to change while in prison; ‘‘(5) reassign the prisoner to appropriate evidence-based recidivism reduction programs or productive activities based on the revised determination to ensure that— ‘‘(A) all prisoners at each risk level have a meaningful opportunity to reduce their classification during the period of incarceration;

FDFCDC 192 S. 756—4 ‘‘(B) to address the specific criminogenic needs of the prisoner; and ‘‘(C) all prisoners are able to successfully participate in such programs; ‘‘(6) determine when to provide incentives and rewards for successful participation in evidence-based recidivism reduction programs or productive activities in accordance with subsection (e); ‘‘(7) determine when a prisoner is ready to transfer into prerelease custody or supervised release in accordance with section 3624; and ‘‘(8) determine the appropriate use of audio technology for program course materials with an understanding of dyslexia. In carrying out this subsection, the Attorney General may use existing risk and needs assessment tools, as appropriate. ‘‘(b) ASSIGNMENT OF EVIDENCE-BASED RECIDIVISM REDUCTION PROGRAMS.—The System shall provide guidance on the type, amount, and intensity of evidence-based recidivism reduction programming and productive activities that shall be assigned for each prisoner, including— ‘‘(1) programs in which the Bureau of Prisons shall assign the prisoner to participate, according to the prisoner’s specific criminogenic needs; and ‘‘(2) information on the best ways that the Bureau of Prisons can tailor the programs to the specific criminogenic needs of each prisoner so as to most effectively lower each prisoner’s risk of recidivism. ‘‘(c) HOUSING AND ASSIGNMENT DECISIONS.—The System shall provide guidance on program grouping and housing assignment determinations and, after accounting for the safety of each prisoner and other individuals at the prison, provide that prisoners with a similar risk level be grouped together in housing and assignment decisions to the extent practicable. ‘‘(d) EVIDENCE-BASED RECIDIVISM REDUCTION PROGRAM INCEN- TIVES AND PRODUCTIVE ACTIVITIES REWARDS.—The System shall provide incentives and rewards for prisoners to participate in and complete evidence-based recidivism reduction programs as follows: ‘‘(1) PHONE AND VISITATION PRIVILEGES.—A prisoner who is successfully participating in an evidence-based recidivism reduction program shall receive— ‘‘(A) phone privileges, or, if available, video confer- encing privileges, for up to 30 minutes per day, and up to 510 minutes per month; and ‘‘(B) additional time for visitation at the prison, as determined by the warden of the prison. ‘‘(2) TRANSFER TO INSTITUTION CLOSER TO RELEASE RESI- DENCE.—A prisoner who is successfully participating in an evidence-based recidivism reduction program shall be considered by the Bureau of Prisons for placement in a facility closer to the prisoner’s release residence upon request from the prisoner and subject to— ‘‘(A) bed availability at the transfer facility; ‘‘(B) the prisoner’s security designation; and ‘‘(C) the recommendation from the warden of the prison at which the prisoner is incarcerated at the time of making the request.

FDFCDC 193 S. 756—5

‘‘(3) ADDITIONAL POLICIES.—The Director of the Bureau of Prisons shall develop additional policies to provide appropriate incentives for successful participation and completion of evidence-based recidivism reduction programming. The incentives shall include not less than 2 of the following: ‘‘(A) Increased commissary spending limits and product offerings. ‘‘(B) Extended opportunities to access the email system. ‘‘(C) Consideration of transfer to preferred housing units (including transfer to different prison facilities). ‘‘(D) Other incentives solicited from prisoners and determined appropriate by the Director. ‘‘(4) TIME CREDITS.— ‘‘(A) IN GENERAL.—A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as follows: ‘‘(i) A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities. ‘‘(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities. ‘‘(B) AVAILABILITY.—A prisoner may not earn time credits under this paragraph for an evidence-based recidivism reduction program that the prisoner successfully completed— ‘‘(i) prior to the date of enactment of this subchapter; or ‘‘(ii) during official detention prior to the date that the prisoner’s sentence commences under section 3585(a). ‘‘(C) APPLICATION OF TIME CREDITS TOWARD PRERELEASE CUSTODY OR SUPERVISED RELEASE.—Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release. ‘‘(D) INELIGIBLE PRISONERS.—A prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law: ‘‘(i) Section 32, relating to destruction of aircraft or aircraft facilities. ‘‘(ii) Section 33, relating to destruction of motor vehicles or motor vehicle facilities. ‘‘(iii) Section 36, relating to drive-by shootings. ‘‘(iv) Section 81, relating to arson within special maritime and territorial jurisdiction.

FDFCDC 194 S. 756—6 ‘‘(v) Section 111(b), relating to assaulting, resisting, or impeding certain officers or employees using a deadly or dangerous weapon or inflicting bodily injury. ‘‘(vi) Paragraph (1), (7), or (8) of section 113(a), relating to assault with intent to commit murder, assault resulting in substantial bodily injury to a spouse or intimate partner, a dating partner, or an individual who has not attained the age of 16 years, or assault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate. ‘‘(vii) Section 115, relating to influencing, impeding, or retaliating against a Federal official by injuring a family member, except for a threat made in violation of that section. ‘‘(viii) Section 116, relating to female genital mutilation. ‘‘(ix) Section 117, relating to domestic assault by a habitual offender. ‘‘(x) Any section of chapter 10, relating to biological weapons. ‘‘(xi) Any section of chapter 11B, relating to chemical weapons. ‘‘(xii) Section 351, relating to Congressional, Cabi- net, and Supreme Court assassination, kidnapping, and assault. ‘‘(xiii) Section 521, relating to criminal street gangs. ‘‘(xiv) Section 751, relating to prisoners in custody of an institution or officer. ‘‘(xv) Section 793, relating to gathering, transmit- ting, or losing defense information. ‘‘(xvi) Section 794, relating to gathering or deliv- ering defense information to aid a foreign government. ‘‘(xvii) Any section of chapter 39, relating to explosives and other dangerous articles, except for section 836 (relating to the transportation of fireworks into a State prohibiting sale or use). ‘‘(xviii) Section 842(p), relating to distribution of information relating to explosives, destructive devices, and weapons of mass destruction, but only if the conviction involved a weapon of mass destruction (as defined in section 2332a(c)). ‘‘(xix) Subsection (f)(3), (h), or (i) of section 844, relating to the use of fire or an explosive. ‘‘(xx) Section 871, relating to threats against the President and successors to the Presidency. ‘‘(xxi) Section 879, relating to threats against former Presidents and certain other persons. ‘‘(xxii) Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime. ‘‘(xxiii) Section 1030(a)(1), relating to fraud and related activity in connection with computers. ‘‘(xxiv) Section 1091, relating to genocide. ‘‘(xxv) Any section of chapter 51, relating to homicide, except for section 1112 (relating to manslaughter),

FDFCDC 195 S. 756—7 1113 (relating to attempt to commit murder or manslaughter, but only if the conviction was for an attempt to commit manslaughter), 1115 (relating to misconduct or neglect of ship officers), or 1122 (relating to protection against the human immunodeficiency virus). ‘‘(xxvi) Any section of chapter 55, relating to kidnapping. ‘‘(xxvii) Any offense under chapter 77, relating to peonage, slavery, and trafficking in persons, except for sections 1593 through 1596. ‘‘(xxviii) Section 1751, relating to Presidential and Presidential staff assassination, kidnapping, and assault. ‘‘(xxix) Section 1791, relating to providing or possessing contraband in prison. ‘‘(xxx) Section 1792, relating to mutiny and riots. ‘‘(xxxi) Section 1841(a)(2)(C), relating to intentionally killing or attempting to kill an unborn child. ‘‘(xxxii) Section 1992, relating to terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air. ‘‘(xxxiii) Section 2113(e), relating to bank robbery resulting in death. ‘‘(xxxiv) Section 2118(c), relating to robberies and burglaries involving controlled substances resulting in assault, putting in jeopardy the life of any person by the use of a dangerous weapon or device, or death. ‘‘(xxxv) Section 2119, relating to taking a motor vehicle (commonly referred to as ‘carjacking’). ‘‘(xxxvi) Any section of chapter 105, relating to sabotage, except for section 2152. ‘‘(xxxvii) Any section of chapter 109A, relating to sexual abuse. ‘‘(xxxviii) Section 2250, relating to failure to register as a sex offender. ‘‘(xxxix) Section 2251, relating to the sexual exploitation of children. ‘‘(xl) Section 2251A, relating to the selling or buying of children. ‘‘(xli) Section 2252, relating to certain activities relating to material involving the sexual exploitation of minors. ‘‘(xlii) Section 2252A, relating to certain activities involving material constituting or containing child pornography. ‘‘(xliii) Section 2260, relating to the production of sexually explicit depictions of a minor for importation into the United States. ‘‘(xliv) Section 2283, relating to the transportation of explosive, biological, chemical, or radioactive or nuclear materials. ‘‘(xlv) Section 2284, relating to the transportation of terrorists. ‘‘(xlvi) Section 2291, relating to the destruction of a vessel or maritime facility, but only if the conduct

FDFCDC 196 S. 756—8 that led to the conviction involved a substantial risk of death or serious bodily injury. ‘‘(xlvii) Any section of chapter 113B, relating to terrorism. ‘‘(xlviii) Section 2340A, relating to torture. ‘‘(xlix) Section 2381, relating to treason. ‘‘(l) Section 2442, relating to the recruitment or use of child soldiers. ‘‘(li) An offense described in section 3559(c)(2)(F), for which the offender was sentenced to a term of imprisonment of more than 1 year, if the offender has a previous conviction, for which the offender served a term of imprisonment of more than 1 year, for a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111), voluntary manslaughter (as described in section 1112), assault with intent to commit murder (as described in section 113(a)), aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242), abusive sexual contact (as described in sections 2244(a)(1) and (a)(2)), kidnapping (as described in chapter 55), carjacking (as described in section 2119), arson (as described in section 844(f)(3), (h), or (i)), or terrorism (as described in chapter 113B). ‘‘(lii) Section 57(b) of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)), relating to the engagement or participation in the development or production of special nuclear material. ‘‘(liii) Section 92 of the Atomic Energy Act of 1954 (42 U.S.C. 2122), relating to prohibitions governing atomic weapons. ‘‘(liv) Section 101 of the Atomic Energy Act of 1954 (42 U.S.C. 2131), relating to the atomic energy license requirement. ‘‘(lv) Section 224 or 225 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275), relating to the communication or receipt of restricted data. ‘‘(lvi) Section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), relating to the sabotage of nuclear facilities or fuel. ‘‘(lvii) Section 60123(b) of title 49, relating to damaging or destroying a pipeline facility, but only if the conduct which led to the conviction involved a substantial risk of death or serious bodily injury. ‘‘(lviii) Section 401(a) of the Controlled Substances Act (21 U.S.C. 841), relating to manufacturing or distributing a controlled substance in the case of a conviction for an offense described in subparagraph (A), (B), or (C) of subsection (b)(1) of that section for which death or serious bodily injury resulted from the use of such substance. ‘‘(lix) Section 276(a) of the Immigration and Nationality Act (8 U.S.C. 1326), relating to the reentry of a removed alien, but only if the alien is described in paragraph (1) or (2) of subsection (b) of that section.

FDFCDC 197 S. 756—9 ‘‘(lx) Section 277 of the Immigration and Nation- ality Act (8 U.S.C. 1327), relating to aiding or assisting certain aliens to enter the United States. ‘‘(lxi) Section 278 of the Immigration and Nation- ality Act (8 U.S.C. 1328), relating to the importation of an alien into the United States for an immoral purpose. ‘‘(lxii) Any section of the Export Administration Act of 1979 (50 U.S.C. 4611 et seq.) ‘‘(lxiii) Section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705). ‘‘(lxiv) Section 601 of the National Security Act of 1947 (50 U.S.C. 3121), relating to the protection of identities of certain United States undercover intelligence officers, agents, informants, and sources. ‘‘(lxv) Subparagraph (A)(i) or (B)(i) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(A) or (2)(A) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, dispense, or knowingly importing or exporting, a mixture or substance containing a detectable amount of heroin if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission. ‘‘(lxvi) Subparagraph (A)(vi) or (B)(vi) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(F) or (2)(F) of section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof. ‘‘(lxvii) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(H) or (2)(H) of section 1010(b) the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, or knowingly importing or exporting, a mixture of substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers, if the sentencing court finds that the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission. ‘‘(lxviii) Subparagraph (A) or (B) of section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1) or (2) of section 1010(b) of the Controlled Substances Import and Export Act

FDFCDC 198 S. 756—10 (21 U.S.C. 960(b)), relating to manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance, or knowingly importing or exporting a controlled substance, if the sentencing court finds that— ‘‘(I) the offense involved a mixture or substance containing a detectable amount of N-phenyl- N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof; and ‘‘(II) the offender was an organizer, leader, manager, or supervisor of others in the offense, as determined under the guidelines promulgated by the United States Sentencing Commission. ‘‘(E) DEPORTABLE PRISONERS INELIGIBLE TO APPLY TIME CREDITS.— ‘‘(i) IN GENERAL.—A prisoner is ineligible to apply time credits under subparagraph (C) if the prisoner is the subject of a final order of removal under any provision of the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))). ‘‘(ii) PROCEEDINGS.—The Attorney General, in consultation with the Secretary of Homeland Security, shall ensure that any alien described in section 212 or 237 of the Immigration and Nationality Act (8 U.S.C. 1182, 1227) who seeks to earn time credits are subject to proceedings described in section 238(a) of that Act (8 U.S.C. 1228(a)) at a date as early as practicable during the prisoner’s incarceration. ‘‘(5) RISK REASSESSMENTS AND LEVEL ADJUSTMENT.—A prisoner who successfully participates in evidence-based recidivism reduction programming or productive activities shall receive periodic risk reassessments not less often than annually, and a prisoner determined to be at a medium or high risk of recidivating and who has less than 5 years until his or her projected release date shall receive more frequent risk reassessments. If the reassessment shows that the prisoner’s risk of recidivating or specific needs have changed, the Bureau of Prisons shall update the determination of the prisoner’s risk of recidivating or information regarding the prisoner’s specific needs and reassign the prisoner to appropriate evidence-based recidivism reduction programming or productive activities based on such changes. ‘‘(6) RELATION TO OTHER INCENTIVE PROGRAMS.—The incentives described in this subsection shall be in addition to any other rewards or incentives for which a prisoner may be eligible. ‘‘(e) PENALTIES.—The Director of the Bureau of Prisons shall develop guidelines for the reduction of rewards and incentives earned under subsection (d) for prisoners who violate prison rules or evidence-based recidivism reduction program or productive activity rules, which shall provide— ‘‘(1) general levels of violations and resulting reductions; ‘‘(2) that any reduction that includes the loss of time credits shall require written notice to the prisoner, shall be limited to time credits that a prisoner earned as of the date of the prisoner’s rule violation, and shall not include any future time credits that the prisoner may earn; and

FDFCDC 199 S. 756—11 ‘‘(3) for a procedure to restore time credits that a prisoner lost as a result of a rule violation, based on the prisoner’s individual progress after the date of the rule violation. ‘‘(f) BUREAU OF PRISONS TRAINING.—The Attorney General shall develop and implement training programs for Bureau of Prisons officers and employees responsible for administering the System, which shall include— ‘‘(1) initial training to educate officers and employees on how to use the System in an appropriate and consistent manner, as well as the reasons for using the System; ‘‘(2) continuing education; ‘‘(3) periodic training updates; and ‘‘(4) a requirement that such officers and employees demonstrate competence in administering the System, including interrater reliability, on a biannual basis. ‘‘(g) QUALITY ASSURANCE.—In order to ensure that the Bureau of Prisons is using the System in an appropriate and consistent manner, the Attorney General shall monitor and assess the use of the System, which shall include conducting annual audits of the Bureau of Prisons regarding the use of the System. ‘‘(h) DYSLEXIA SCREENING.— ‘‘(1) SCREENING.—The Attorney General shall incorporate a dyslexia screening program into the System, including by screening for dyslexia during— ‘‘(A) the intake process; and ‘‘(B) each periodic risk reassessment of a prisoner. ‘‘(2) TREATMENT.—The Attorney General shall incorporate programs designed to treat dyslexia into the evidence-based recidivism reduction programs or productive activities required to be implemented under this section. The Attorney General may also incorporate programs designed to treat other learning disabilities. ‘‘§ 3633. Evidence-based recidivism reduction program and recommendations ‘‘(a) IN GENERAL.—Prior to releasing the System, in consultation with the Independent Review Committee authorized by the First Step Act of 2018, the Attorney General shall— ‘‘(1) review the effectiveness of evidence-based recidivism reduction programs that exist as of the date of enactment of this subchapter in prisons operated by the Bureau of Prisons; ‘‘(2) review available information regarding the effectiveness of evidence-based recidivism reduction programs and productive activities that exist in State-operated prisons throughout the United States; ‘‘(3) identify the most effective evidence-based recidivism reduction programs; ‘‘(4) review the policies for entering into evidence-based recidivism reduction partnerships described in section 3621(h)(5); and ‘‘(5) direct the Bureau of Prisons regarding— ‘‘(A) evidence-based recidivism reduction programs; ‘‘(B) the ability for faith-based organizations to function as a provider of educational evidence-based programs outside of the religious classes and services provided through the Chaplaincy; and

FDFCDC 200 S. 756—12 ‘‘(C) the addition of any new effective evidence-based recidivism reduction programs that the Attorney General finds. ‘‘(b) REVIEW AND RECOMMENDATIONS REGARDING DYSLEXIA MITIGATION.—In carrying out subsection (a), the Attorney General shall consider the prevalence and mitigation of dyslexia in prisons, including by— ‘‘(1) reviewing statistics on the prevalence of dyslexia, and the effectiveness of any programs implemented to mitigate the effects of dyslexia, in prisons operated by the Bureau of Prisons and State-operated prisons throughout the United States; and ‘‘(2) incorporating the findings of the Attorney General under paragraph (1) of this subsection into any directives given to the Bureau of Prisons under paragraph (5) of subsection (a). ‘‘§ 3634. Report ‘‘Beginning on the date that is 2 years after the date of enactment of this subchapter, and annually thereafter for a period of 5 years, the Attorney General shall submit a report to the Commit- tees on the Judiciary of the Senate and the House of Representatives and the Subcommittees on Commerce, Justice, Science, and Related Agencies of the Committees on Appropriations of the Senate and the House of Representatives that contains the following: ‘‘(1) A summary of the activities and accomplishments of the Attorney General in carrying out this Act. ‘‘(2) A summary and assessment of the types and effectiveness of the evidence-based recidivism reduction programs and productive activities in prisons operated by the Bureau of Prisons, including— ‘‘(A) evidence about which programs have been shown to reduce recidivism; ‘‘(B) the capacity of each program and activity at each prison, including the number of prisoners along with the recidivism risk of each prisoner enrolled in each program; and ‘‘(C) identification of any gaps or shortages in capacity of such programs and activities. ‘‘(3) Rates of recidivism among individuals who have been released from Federal prison, based on the following criteria: ‘‘(A) The primary offense of conviction. ‘‘(B) The length of the sentence imposed and served. ‘‘(C) The Bureau of Prisons facility or facilities in which the prisoner’s sentence was served. ‘‘(D) The evidence-based recidivism reduction programming that the prisoner successfully completed, if any. ‘‘(E) The prisoner’s assessed and reassessed risk of recidivism. ‘‘(F) The productive activities that the prisoner successfully completed, if any. ‘‘(4) The status of prison work programs at facilities operated by the Bureau of Prisons, including— ‘‘(A) a strategy to expand the availability of such programs without reducing job opportunities for workers in the United States who are not in the custody of the Bureau

FDFCDC 201 S. 756—13 of Prisons, including the feasibility of prisoners manufacturing products purchased by Federal agencies that are manufactured overseas; ‘‘(B) an assessment of the feasibility of expanding such programs, consistent with the strategy required under subparagraph (A), with the goal that 5 years after the date of enactment of this subchapter, not less than 75 percent of eligible minimum- and low-risk offenders have the opportunity to participate in a prison work program for not less than 20 hours per week; and ‘‘(C) a detailed discussion of legal authorities that would be useful or necessary to achieve the goals described in subparagraphs (A) and (B). ‘‘(5) An assessment of the Bureau of Prisons’ compliance with section 3621(h). ‘‘(6) An assessment of progress made toward carrying out the purposes of this subchapter, including any savings associated with— ‘‘(A) the transfer of prisoners into prerelease custody or supervised release under section 3624(g), including savings resulting from the avoidance or deferral of future construction, acquisition, and operations costs; and ‘‘(B) any decrease in recidivism that may be attributed to the System or the increase in evidence-based recidivism reduction programs required under this subchapter. ‘‘(7) An assessment of budgetary savings resulting from this subchapter, including— ‘‘(A) a summary of the amount of savings resulting from the transfer of prisoners into prerelease custody under this chapter, including savings resulting from the avoidance or deferral of future construction, acquisition, or operations costs; ‘‘(B) a summary of the amount of savings resulting from any decrease in recidivism that may be attributed to the implementation of the risk and needs assessment system or the increase in recidivism reduction programs and productive activities required by this subchapter; ‘‘(C) a strategy to reinvest the savings described in subparagraphs (A) and (B) in other— ‘‘(i) Federal, State, and local law enforcement activities; and ‘‘(ii) expansions of recidivism reduction programs and productive activities in the Bureau of Prisons; and ‘‘(D) a description of how the reduced expenditures on Federal corrections and the budgetary savings resulting from this subchapter are currently being used and will be used to— ‘‘(i) increase investment in law enforcement and crime prevention to combat gangs of national significance and high-level drug traffickers through the High Intensity Drug Trafficking Areas Program and other task forces; ‘‘(ii) hire, train, and equip law enforcement officers and prosecutors; and

FDFCDC 202 S. 756—14 ‘‘(iii) promote crime reduction programs using evidence-based practices and strategic planning to help reduce crime and criminal recidivism. ‘‘(8) Statistics on— ‘‘(A) the prevalence of dyslexia among prisoners in prisons operated by the Bureau of Prisons; and ‘‘(B) any change in the effectiveness of dyslexia mitigation programs among such prisoners that may be attributed to the incorporation of dyslexia screening into the System and of dyslexia treatment into the evidence-based recidivism reduction programs, as required under this chapter. ‘‘§ 3635. Definitions ‘‘In this subchapter the following definitions apply: ‘‘(1) DYSLEXIA.—The term ‘dyslexia’ means an unexpected difficulty in reading for an individual who has the intelligence to be a much better reader, most commonly caused by a difficulty in the phonological processing (the appreciation of the individual sounds of spoken language), which affects the ability of an individual to speak, read, and spell. ‘‘(2) DYSLEXIA SCREENING PROGRAM.—The term ‘dyslexia screening program’ means a screening program for dyslexia that is— ‘‘(A) evidence-based (as defined in section 8101(21) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801(21))) with proven psychometrics for validity; ‘‘(B) efficient and low-cost; and ‘‘(C) readily available. ‘‘(3) EVIDENCE-BASED RECIDIVISM REDUCTION PROGRAM.— The term ‘evidence-based recidivism reduction program’ means either a group or individual activity that— ‘‘(A) has been shown by empirical evidence to reduce recidivism or is based on research indicating that it is likely to be effective in reducing recidivism; ‘‘(B) is designed to help prisoners succeed in their communities upon release from prison; and ‘‘(C) may include— ‘‘(i) social learning and communication, inter- personal, anti-bullying, rejection response, and other life skills; ‘‘(ii) family relationship building, structured parent-child interaction, and parenting skills; ‘‘(iii) classes on morals or ethics; ‘‘(iv) academic classes; ‘‘(v) cognitive behavioral treatment; ‘‘(vi) mentoring; ‘‘(vii) substance abuse treatment; ‘‘(viii) vocational training; ‘‘(ix) faith-based classes or services; ‘‘(x) civic engagement and reintegrative community services; ‘‘(xi) a prison job, including through a prison work program; ‘‘(xii) victim impact classes or other restorative justice programs; and ‘‘(xiii) trauma counseling and trauma-informed support programs.

FDFCDC 203 S. 756—15

‘‘(4) PRISONER.—The term ‘prisoner’ means a person who has been sentenced to a term of imprisonment pursuant to a conviction for a Federal criminal offense, or a person in the custody of the Bureau of Prisons. ‘‘(5) PRODUCTIVE ACTIVITY.—The term ‘productive activity’ means either a group or individual activity that is designed to allow prisoners determined as having a minimum or low risk of recidivating to remain productive and thereby maintain a minimum or low risk of recidivating, and may include the delivery of the programs described in paragraph (1) to other prisoners. ‘‘(6) RISK AND NEEDS ASSESSMENT TOOL.—The term ‘risk and needs assessment tool’ means an objective and statistically validated method through which information is collected and evaluated to determine— ‘‘(A) as part of the intake process, the risk that a prisoner will recidivate upon release from prison; ‘‘(B) the recidivism reduction programs that will best minimize the risk that the prisoner will recidivate upon release from prison; and ‘‘(C) the periodic reassessment of risk that a prisoner will recidivate upon release from prison, based on factors including indicators of progress and of regression, that are dynamic and that can reasonably be expected to change while in prison.’’. (b) CLERICAL AMENDMENT.—The table of subchapters for chapter 229 of title 18, United States Code, is amended by adding at the end the following: ‘‘D. Risk and Needs Assessment ...... 3631’’. SEC. 102. IMPLEMENTATION OF SYSTEM AND RECOMMENDATIONS BY BUREAU OF PRISONS. (a) IMPLEMENTATION OF SYSTEM GENERALLY.—Section 3621 of title 18, United States Code, is amended by adding at the end the following: ‘‘(h) IMPLEMENTATION OF RISK AND NEEDS ASSESSMENT SYSTEM.— ‘‘(1) IN GENERAL.—Not later than 180 days after the Attorney General completes and releases the risk and needs assessment system (referred to in this subsection as the ‘System’) developed under subchapter D, the Director of the Bureau of Prisons shall, in accordance with that subchapter— ‘‘(A) implement and complete the initial intake risk and needs assessment for each prisoner (including for each prisoner who was a prisoner prior to the effective date of this subsection), regardless of the prisoner’s length of imposed term of imprisonment, and begin to assign prisoners to appropriate evidence-based recidivism reduction programs based on that determination; ‘‘(B) begin to expand the effective evidence-based recidivism reduction programs and productive activities it offers and add any new evidence-based recidivism reduction programs and productive activities necessary to effectively implement the System; and ‘‘(C) begin to implement the other risk and needs assessment tools necessary to effectively implement the System over time, while prisoners are participating in and

FDFCDC 204 S. 756—16 completing the effective evidence-based recidivism reduction programs and productive activities. ‘‘(2) PHASE-IN.—In order to carry out paragraph (1), so that every prisoner has the opportunity to participate in and complete the type and amount of evidence-based recidivism reduction programs or productive activities they need, and be reassessed for recidivism risk as necessary to effectively implement the System, the Bureau of Prisons shall— ‘‘(A) provide such evidence-based recidivism reduction programs and productive activities for all prisoners before the date that is 2 years after the date on which the Bureau of Prisons completes a risk and needs assessment for each prisoner under paragraph (1)(A); and ‘‘(B) develop and validate the risk and needs assessment tool to be used in the reassessments of risk of recidivism, while prisoners are participating in and completing evidence-based recidivism reduction programs and productive activities. ‘‘(3) PRIORITY DURING PHASE-IN.—During the 2-year period described in paragraph (2)(A), the priority for such programs and activities shall be accorded based on a prisoner’s proximity to release date. ‘‘(4) PRELIMINARY EXPANSION OF EVIDENCE-BASED RECIDI- VISM REDUCTION PROGRAMS AND AUTHORITY TO USE INCEN- TIVES.—Beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence- based recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D. ‘‘(5) RECIDIVISM REDUCTION PARTNERSHIPS.—In order to expand evidence-based recidivism reduction programs and productive activities, the Attorney General shall develop policies for the warden of each prison of the Bureau of Prisons to enter into partnerships, subject to the availability of appropriations, with any of the following: ‘‘(A) Nonprofit and other private organizations, including faith-based, art, and community-based organizations that will deliver recidivism reduction programming on a paid or volunteer basis. ‘‘(B) Institutions of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)) that will deliver instruction on a paid or volunteer basis. ‘‘(C) Private entities that will— ‘‘(i) deliver vocational training and certifications; ‘‘(ii) provide equipment to facilitate vocational training or employment opportunities for prisoners; ‘‘(iii) employ prisoners; or ‘‘(iv) assist prisoners in prerelease custody or supervised release in finding employment. ‘‘(D) Industry-sponsored organizations that will deliver workforce development and training, on a paid or volunteer basis. ‘‘(6) REQUIREMENT TO PROVIDE PROGRAMS TO ALL PRIS- ONERS; PRIORITY.—The Director of the Bureau of Prisons shall provide all prisoners with the opportunity to actively participate

FDFCDC 205 S. 756—17 in evidence-based recidivism reduction programs or productive activities, according to their specific criminogenic needs, throughout their entire term of incarceration. Priority for participation in recidivism reduction programs shall be given to medium-risk and high-risk prisoners, with access to productive activities given to minimum-risk and low-risk prisoners. ‘‘(7) DEFINITIONS.—The terms in this subsection have the meaning given those terms in section 3635.’’. (b) PRERELEASE CUSTODY.— (1) IN GENERAL.—Section 3624 of title 18, United States Code, is amended— (A) in subsection (b)(1)— (i) by striking ‘‘, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term,’’ and inserting ‘‘of up to 54 days for each year of the prisoner’s sentence imposed by the court,’’; and (ii) by striking ‘‘credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence’’ and inserting ‘‘credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment’’; and (B) by adding at the end the following: ‘‘(g) PRERELEASE CUSTODY OR SUPERVISED RELEASE FOR RISK AND NEEDS ASSESSMENT SYSTEM PARTICIPANTS.— ‘‘(1) ELIGIBLE PRISONERS.—This subsection applies in the case of a prisoner (as such term is defined in section 3635) who— ‘‘(A) has earned time credits under the risk and needs assessment system developed under subchapter D (referred to in this subsection as the ‘System’) in an amount that is equal to the remainder of the prisoner’s imposed term of imprisonment; ‘‘(B) has shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner’s term of imprisonment; ‘‘(C) has had the remainder of the prisoner’s imposed term of imprisonment computed under applicable law; and ‘‘(D)(i) in the case of a prisoner being placed in prerelease custody, the prisoner— ‘‘(I) has been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner; or ‘‘(II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden of the prison, after the warden’s determination that— ‘‘(aa) the prisoner would not be a danger to society if transferred to prerelease custody or supervised release; ‘‘(bb) the prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and

FDFCDC 206 S. 756—18 ‘‘(cc) the prisoner is unlikely to recidivate; or ‘‘(ii) in the case of a prisoner being placed in supervised release, the prisoner has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner. ‘‘(2) TYPES OF PRERELEASE CUSTODY.—A prisoner shall be placed in prerelease custody as follows: ‘‘(A) HOME CONFINEMENT.— ‘‘(i) IN GENERAL.—A prisoner placed in prerelease custody pursuant to this subsection who is placed in home confinement shall— ‘‘(I) be subject to 24-hour electronic monitoring that enables the prompt identification of the prisoner, location, and time, in the case of any violation of subclause (II); ‘‘(II) remain in the prisoner’s residence, except that the prisoner may leave the prisoner’s home in order to, subject to the approval of the Director of the Bureau of Prisons— ‘‘(aa) perform a job or job-related activities, including an apprenticeship, or participate in job-seeking activities; ‘‘(bb) participate in evidence-based recidivism reduction programming or productive activities assigned by the System, or similar activities; ‘‘(cc) perform community service; ‘‘(dd) participate in crime victim restora- tion activities; ‘‘(ee) receive medical treatment; ‘‘(ff) attend religious activities; or ‘‘(gg) participate in other family-related activities that facilitate the prisoner’s successful reentry such as a family funeral, a family wedding, or to visit a family member who is seriously ill; and ‘‘(III) comply with such other conditions as the Director determines appropriate. ‘‘(ii) ALTERNATE MEANS OF MONITORING.—If the electronic monitoring of a prisoner described in clause (i)(I) is infeasible for technical or religious reasons, the Director of the Bureau of Prisons may use alternative means of monitoring a prisoner placed in home confinement that the Director determines are as effective or more effective than the electronic monitoring described in clause (i)(I). ‘‘(iii) MODIFICATIONS.—The Director of the Bureau of Prisons may modify the conditions described in clause (i) if the Director determines that a compelling reason exists to do so, and that the prisoner has demonstrated exemplary compliance with such conditions. ‘‘(iv) DURATION.—Except as provided in paragraph (4), a prisoner who is placed in home confinement shall remain in home confinement until the prisoner has served not less than 85 percent of the prisoner’s imposed term of imprisonment.

FDFCDC 207 S. 756—19

‘‘(B) RESIDENTIAL REENTRY CENTER.—A prisoner placed in prerelease custody pursuant to this subsection who is placed at a residential reentry center shall be subject to such conditions as the Director of the Bureau of Prisons determines appropriate. ‘‘(3) SUPERVISED RELEASE.—If the sentencing court included as a part of the prisoner’s sentence a requirement that the prisoner be placed on a term of supervised release after imprisonment pursuant to section 3583, the Director of the Bureau of Prisons may transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under section 3632. ‘‘(4) DETERMINATION OF CONDITIONS.—In determining appropriate conditions for prisoners placed in prerelease custody pursuant to this subsection, the Director of the Bureau of Prisons shall, to the extent practicable, provide that increas- ingly less restrictive conditions shall be imposed on prisoners who demonstrate continued compliance with the conditions of such prerelease custody, so as to most effectively prepare such prisoners for reentry. ‘‘(5) VIOLATIONS OF CONDITIONS.—If a prisoner violates a condition of the prisoner’s prerelease custody, the Director of the Bureau of Prisons may impose such additional conditions on the prisoner’s prerelease custody as the Director of the Bureau of Prisons determines appropriate, or revoke the prisoner’s prerelease custody and require the prisoner to serve the remainder of the term of imprisonment to which the prisoner was sentenced, or any portion thereof, in prison. If the violation is nontechnical in nature, the Director of the Bureau of Prisons shall revoke the prisoner’s prerelease custody. ‘‘(6) ISSUANCE OF GUIDELINES.—The Attorney General, in consultation with the Assistant Director for the Office of Proba- tion and Pretrial Services, shall issue guidelines for use by the Bureau of Prisons in determining— ‘‘(A) the appropriate type of prerelease custody or supervised release and level of supervision for a prisoner placed on prerelease custody pursuant to this subsection; and ‘‘(B) consequences for a violation of a condition of such prerelease custody by such a prisoner, including a return to prison and a reassessment of evidence-based recidivism risk level under the System. ‘‘(7) AGREEMENTS WITH UNITED STATES PROBATION AND PRE- TRIAL SERVICES.—The Director of the Bureau of Prisons shall, to the greatest extent practicable, enter into agreements with United States Probation and Pretrial Services to supervise prisoners placed in home confinement under this subsection. Such agreements shall— ‘‘(A) authorize United States Probation and Pretrial Services to exercise the authority granted to the Director pursuant to paragraphs (3) and (4); and ‘‘(B) take into account the resource requirements of United States Probation and Pretrial Services as a result of the transfer of Bureau of Prisons prisoners to prerelease custody or supervised release.

FDFCDC 208 S. 756—20

‘‘(8) ASSISTANCE.—United States Probation and Pretrial Services shall, to the greatest extent practicable, offer assistance to any prisoner not under its supervision during prerelease custody under this subsection. ‘‘(9) MENTORING, REENTRY, AND SPIRITUAL SERVICES.—Any prerelease custody into which a prisoner is placed under this subsection may not include a condition prohibiting the prisoner from receiving mentoring, reentry, or spiritual services from a person who provided such services to the prisoner while the prisoner was incarcerated, except that the warden of the facility at which the prisoner was incarcerated may waive the requirement under this paragraph if the warden finds that the provision of such services would pose a significant security risk to the prisoner, persons who provide such services, or any other person. The warden shall provide written notice of any such waiver to the person providing such services and to the prisoner. ‘‘(10) TIME LIMITS INAPPLICABLE.—The time limits under subsections (b) and (c) shall not apply to prerelease custody under this subsection. ‘‘(11) PRERELEASE CUSTODY CAPACITY.—The Director of the Bureau of Prisons shall ensure there is sufficient prerelease custody capacity to accommodate all eligible prisoners.’’. (2) EFFECTIVE DATE.—The amendments made by this subsection shall take effect beginning on the date that the Attorney General completes and releases the risk and needs assessment system under subchapter D of chapter 229 of title 18, United States Code, as added by section 101(a) of this Act. (3) APPLICABILITY.—The amendments made by this subsection shall apply with respect to offenses committed before, on, or after the date of enactment of this Act, except that such amendments shall not apply with respect to offenses committed before November 1, 1987.

SEC. 103. GAO REPORT. Not later than 2 years after the Director of the Bureau of Prisons implements the risk and needs assessment system under section 3621 of title 18, United States Code, and every 2 years thereafter, the Comptroller General of the United States shall conduct an audit of the use of the risk and needs assessment system at Bureau of Prisons facilities. The audit shall include analysis of the following: (1) Whether inmates are being assessed under the risk and needs assessment system with the frequency required under such section 3621 of title 18, United States Code. (2) Whether the Bureau of Prisons is able to offer recidivism reduction programs and productive activities (as such terms are defined in section 3635 of title 18, United States Code, as added by section 101(a) of this Act). (3) Whether the Bureau of Prisons is offering the type, amount, and intensity of recidivism reduction programs and productive activities for prisoners to earn the maximum amount of time credits for which they are eligible. (4) Whether the Attorney General is carrying out the duties under section 3631(b) of title 18, United States Code, as added by section 101(a) of this Act.

FDFCDC 209 S. 756—21 (5) Whether officers and employees of the Bureau of Prisons are receiving the training described in section 3632(f) of title 18, United States Code, as added by section 101(a) of this Act. (6) Whether the Bureau of Prisons offers work assignments to all prisoners who might benefit from such an assignment. (7) Whether the Bureau of Prisons transfers prisoners to prerelease custody or supervised release as soon as they are eligible for such a transfer under section 3624(g) of title 18, United States Code, as added by section 102(b) of this Act. (8) The rates of recidivism among similarly classified prisoners to identify any unwarranted disparities, including disparities among similarly classified prisoners of different demographic groups, in such rates. SEC. 104. AUTHORIZATION OF APPROPRIATIONS. (a) IN GENERAL.—There is authorized to be appropriated to carry out this title $75,000,000 for each of fiscal years 2019 through 2023. Of the amount appropriated under this subsection, 80 percent shall be reserved for use by the Director of the Bureau of Prisons to implement the system under section 3621(h) of title 18, United States Code, as added by section 102(a) of this Act. (b) SAVINGS.—It is the sense of Congress that any savings associated with reductions in recidivism that result from this title should be reinvested— (1) to supplement funding for programs that increase public safety by providing resources to State and local law enforcement officials, including for the adoption of innovative technologies and information sharing capabilities; (2) into evidence-based recidivism reduction programs offered by the Bureau of Prisons; and (3) into ensuring eligible prisoners have access to such programs and productive activities offered by the Bureau of Prisons. SEC. 105. RULE OF CONSTRUCTION. Nothing in this Act, or the amendments made by this Act, may be construed to provide authority to place a prisoner in prerelease custody or supervised release who is serving a term of imprisonment pursuant to a conviction for an offense under the laws of one of the 50 States, or of a territory or possession of the United States or to amend or affect the enforcement of the immigration laws, as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101). SEC. 106. FAITH-BASED CONSIDERATIONS. (a) IN GENERAL.—In considering any program, treatment, regimen, group, company, charity, person, or entity of any kind under any provision of this Act, or the amendments made by this Act, the fact that it may be or is faith-based may not be a basis for any discrimination against it in any manner or for any purpose. (b) ELIGIBILITY FOR EARNED TIME CREDIT.—Participation in a faith-based program, treatment, or regimen may qualify a prisoner for earned time credit under subchapter D of chapter 229 of title 18, United States Code, as added by section 101(a) of this Act, however, the Director of the Bureau of Prisons shall ensure that non-faith-based programs that qualify for earned time credit are

FDFCDC 210 S. 756—22 offered at each Bureau of Prisons facility in addition to any such faith-based programs. (c) LIMITATION ON ACTIVITIES.—A group, company, charity, person, or entity may not engage in explicitly religious activities using direct financial assistance made available under this title or the amendments made by this title. (d) RULE OF CONSTRUCTION.—Nothing in this Act, or the amendments made by this Act, may be construed to amend any requirement under Federal law or the Constitution of the United States regarding funding for faith-based programs or activities.

SEC. 107. INDEPENDENT REVIEW COMMITTEE. (a) IN GENERAL.—The Attorney General shall consult with an Independent Review Committee in carrying out the Attorney Gen- eral’s duties under sections 3631(b), 3632 and 3633 of title 18, United States Code, as added by section 101(a) of this Act. (b) FORMATION OF INDEPENDENT REVIEW COMMITTEE.—The National Institute of Justice shall select a nonpartisan and nonprofit organization with expertise in the study and development of risk and needs assessment tools to host the Independent Review Com- mittee. The Independent Review Committee shall be established not later than 30 days after the date of enactment of this Act. (c) APPOINTMENT OF INDEPENDENT REVIEW COMMITTEE.—The organization selected by the National Institute of Justice shall appoint not fewer than 6 members to the Independent Review Committee. (d) COMPOSITION OF THE INDEPENDENT REVIEW COMMITTEE.— The members of the Independent Review Committee shall all have expertise in risk and needs assessment systems and shall include— (1) 2 individuals who have published peer-reviewed scholar- ship about risk and needs assessments in both corrections and community settings; (2) 2 corrections practitioners who have developed and implemented a risk assessment tool in a corrections system or in a community supervision setting, including 1 with prior experience working within the Bureau of Prisons; and (3) 1 individual with expertise in assessing risk assessment implementation. (e) DUTIES OF THE INDEPENDENT REVIEW COMMITTEE.—The Independent Review Committee shall assist the Attorney General in carrying out the Attorney General’s duties under sections 3631(b), 3632 and 3633 of title 18, United States Code, as added by section 101(a) of this Act, including by assisting in— (1) conducting a review of the existing prisoner risk and needs assessment systems in operation on the date of enactment of this Act; (2) developing recommendations regarding evidence-based recidivism reduction programs and productive activities; (3) conducting research and data analysis on— (A) evidence-based recidivism reduction programs relating to the use of prisoner risk and needs assessment tools; (B) the most effective and efficient uses of such programs; and (C) which evidence-based recidivism reduction programs are the most effective at reducing recidivism, and

FDFCDC 211 S. 756—23 the type, amount, and intensity of programming that most effectively reduces the risk of recidivism; and (4) reviewing and validating the risk and needs assessment system. (f) BUREAU OF PRISONS COOPERATION.—The Director of the Bureau of Prisons shall assist the Independent Review Committee in performing the Committee’s duties and promptly respond to requests from the Committee for access to Bureau of Prisons facilities, personnel, and information. (g) REPORT.—Not later than 2 years after the date of enactment of this Act, the Independent Review Committee shall submit to the Committee on the Judiciary and the Subcommittee on Com- merce, Justice, Science, and Related Agencies of the Committee on Appropriations of the Senate and the Committee on the Judiciary and the Subcommittee on Commerce, Justice, Science, and Related Agencies of the Committee on Appropriations of the House of Rep- resentatives a report that includes— (1) a list of all offenses of conviction for which prisoners were ineligible to receive time credits under section 3632(d)(4)(D) of title 18, United States Code, as added by section 101(a) of this Act, and for each offense the number of prisoners excluded, including demographic percentages by age, race, and sex; (2) the criminal history categories of prisoners ineligible to receive time credits under section 3632(d)(4)(D) of title 18, United States Code, as added by section 101(a) of this Act, and for each category the number of prisoners excluded, including demographic percentages by age, race, and sex; (3) the number of prisoners ineligible to apply time credits under section 3632(d)(4)(D) of title 18, United States Code, as added by section 101(a) of this Act, who do not participate in recidivism reduction programming or productive activities, including the demographic percentages by age, race, and sex; (4) any recommendations for modifications to section 3632(d)(4)(D) of title 18, United States Code, as added by section 101(a) of this Act, and any other recommendations regarding recidivism reduction. (h) TERMINATION.—The Independent Review Committee shall terminate on the date that is 2 years after the date on which the risk and needs assessment system authorized by sections 3632 and 3633 of title 18, United States Code, as added by section 101(a) of this Act, is released. TITLE II—BUREAU OF PRISONS SECURE FIREARMS STORAGE

SEC. 201. SHORT TITLE. This title may be cited as the ‘‘Lieutenant Osvaldo Albarati Correctional Officer Self-Protection Act of 2018’’. SEC. 202. SECURE FIREARMS STORAGE. (a) IN GENERAL.—Chapter 303 of title 18, United States Code, is amended by adding at the end the following: ‘‘§ 4050. Secure firearms storage ‘‘(a) DEFINITIONS.—In this section—

FDFCDC 212 S. 756—27

(b) CLERICAL AMENDMENT.—The table of sections for chapter 317 of title 18, United States Code, is amended by adding after the item relating to section 4321 the following: ‘‘4322. Use of restraints on prisoners during the period of pregnancy, labor, and postpartum recovery prohibited.’’. TITLE IV—SENTENCING REFORM

SEC. 401. REDUCE AND RESTRICT ENHANCED SENTENCING FOR PRIOR DRUG FELONIES. (a) CONTROLLED SUBSTANCES ACT AMENDMENTS.—The Con- trolled Substances Act (21 U.S.C. 801 et seq.) is amended— (1) in section 102 (21 U.S.C. 802), by adding at the end the following: ‘‘(57) The term ‘serious drug felony’ means an offense described in section 924(e)(2) of title 18, United States Code, for which— ‘‘(A) the offender served a term of imprisonment of more than 12 months; and ‘‘(B) the offender’s release from any term of imprisonment was within 15 years of the commencement of the instant offense. ‘‘(58) The term ‘serious violent felony’ means— ‘‘(A) an offense described in section 3559(c)(2) of title 18, United States Code, for which the offender served a term of imprisonment of more than 12 months; and ‘‘(B) any offense that would be a felony violation of section 113 of title 18, United States Code, if the offense were committed in the special maritime and territorial jurisdiction of the United States, for which the offender served a term of imprisonment of more than 12 months.’’; and (2) in section 401(b)(1) (21 U.S.C. 841(b)(1))— (A) in subparagraph (A), in the matter following clause (viii)— (i) by striking ‘‘If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years’’ and inserting the following: ‘‘If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years’’; and (ii) by striking ‘‘after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release’’ and inserting the following: ‘‘after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years’’; and (B) in subparagraph (B), in the matter following clause (viii), by striking ‘‘If any person commits such a violation after a prior conviction for a felony drug offense has become final’’ and inserting the following: ‘‘If any person commits

FDFCDC 213 S. 756—28 such a violation after a prior conviction for a serious drug felony or serious violent felony has become final’’. (b) CONTROLLED SUBSTANCES IMPORT AND EXPORT ACT AMEND- MENTS.—Section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended— (1) in paragraph (1), in the matter following subparagraph (H), by striking ‘‘If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not less than 20 years’’ and inserting ‘‘If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years’’; and (2) in paragraph (2), in the matter following subparagraph (H), by striking ‘‘felony drug offense’’ and inserting ‘‘serious drug felony or serious violent felony’’. (c) APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment. SEC. 402. BROADENING OF EXISTING SAFETY VALVE. (a) AMENDMENTS.—Section 3553 of title 18, United States Code, is amended— (1) in subsection (f)— (A) in the matter preceding paragraph (1)— (i) by striking ‘‘or section 1010’’ and inserting ‘‘, section 1010’’; and (ii) by inserting ‘‘, or section 70503 or 70506 of title 46’’ after ‘‘963)’’; (B) by striking paragraph (1) and inserting the following: ‘‘(1) the defendant does not have— ‘‘(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; ‘‘(B) a prior 3-point offense, as determined under the sentencing guidelines; and ‘‘(C) a prior 2-point violent offense, as determined under the sentencing guidelines;’’; and (C) by adding at the end the following: ‘‘Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.’’; and (2) by adding at the end the following: ‘‘(g) DEFINITION OF VIOLENT OFFENSE.—As used in this section, the term ‘violent offense’ means a crime of violence, as defined in section 16, that is punishable by imprisonment.’’. (b) APPLICABILITY.—The amendments made by this section shall apply only to a conviction entered on or after the date of enactment of this Act. SEC. 403. CLARIFICATION OF SECTION 924(c) OF TITLE 18, UNITED STATES CODE. (a) IN GENERAL.—Section 924(c)(1)(C) of title 18, United States Code, is amended, in the matter preceding clause (i), by striking ‘‘second or subsequent conviction under this subsection’’ and

FDFCDC 214 S. 756—29 inserting ‘‘violation of this subsection that occurs after a prior conviction under this subsection has become final’’. (b) APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment. SEC. 404. APPLICATION OF FAIR SENTENCING ACT. (a) DEFINITION OF COVERED OFFENSE.—In this section, the term ‘‘covered offense’’ means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372), that was committed before August 3, 2010. (b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed. (c) LIMITATIONS.—No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section. TITLE V—SECOND CHANCE ACT OF 2007 REAUTHORIZATION

SEC. 501. SHORT TITLE. This title may be cited as the ‘‘Second Chance Reauthorization Act of 2018’’. SEC. 502. IMPROVEMENTS TO EXISTING PROGRAMS. (a) REAUTHORIZATION OF ADULT AND JUVENILE OFFENDER STATE AND LOCAL DEMONSTRATION PROJECTS.—Section 2976 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10631) is amended— (1) by striking subsection (a) and inserting the following: ‘‘(a) GRANT AUTHORIZATION.—The Attorney General shall make grants to States, local governments, territories, or Indian tribes, or any combination thereof (in this section referred to as an ‘eligible entity’), in partnership with interested persons (including Federal corrections and supervision agencies), service providers, and nonprofit organizations for the purpose of strategic planning and implementation of adult and juvenile offender reentry projects.’’; (2) in subsection (b)— (A) in paragraph (3), by inserting ‘‘or reentry courts,’’ after ‘‘community,’’; (B) in paragraph (6), by striking ‘‘and’’ at the end; (C) in paragraph (7), by striking the period at the end and inserting ‘‘; and’’; and

FDFCDC 215 This page intentionally left blank for double-sided pagination and printing

FDFCDC 216 DEFENDING RICO CASES: ACTUALLY, YOU CAN WIN THEM

John H. Cunha, Jr.

NOTES

Note: A CD of supporting materials, including sample motions, litigation manual excerpts, and law review and other articles, is available upon request by emailing Fran Pratt at [email protected]

FDFCDC 217 Racketeer Influenced & Corrupt Organizations 18 U.S.C. § 1962

John H. Cunha Jr. Cunha & Holcomb, P.C. One State Street, Suite 500 Boston, Massachusetts 02109 617-523-4300

The Statute 18 U.S.C. § 1962

FDFCDC 218 1 NOT Specifically Discussing

.Using racketeering income to acquire an interest in, or invest in, any enterprise – 18 U.S.C. § 1962 (a) .Using racketeering activity to acquire an interest in any enterprise – 18 U.S.C. § 1962 (b) .VICAR – committing violent crimes “for the purpose of gaining entrance to or maintaining or increasing position in a racketeering enterprise – 18 U.S.C. § 1959 (a) .Criminal street gangs – 18 U.S.C. § 521

RICO § 1962(c) Elements

1. An enterprise 2. The enterprise engaged, or its activities affected, interstate or foreign commerce 3. Your client associated with the enterprise 4. Your client knowingly and intentionally entered into an agreement to conduct, or participate in the conduct of, or the affairs of the enterprise through a pattern of racketeering activity

FDFCDC 219 2 Attack the Core

Attack the Core – Primary

A. Not an enterprise B. Client not a member or associate of the enterprise .Client’s acts not in furtherance of the enterprise . E.g., isolated buyer and seller . Individual street corner merchants .No continuity of predicate/criminal acts .Mere presence or association . E.g., gang membership per se is not a crime .They’ve got the wrong guy

FDFCDC 220 3 Attack the Core – Secondary

C. No pattern of racketeering activity . Client acts not related to, or in furtherance of, the enterprise . E.g., isolated buyer and seller . Individual street corner merchants . Mere presence or association . E.g., gang membership per se is not a crime D. Legal/factual . Withdrawal . Multiple conspiracies proved, but single conspiracy alleged in indictment – variance between indictment and proof . Statute of Limitations . Did not effect Interstate Commerce 7

2. Interstate Commerce

.Activities must affect interstate or foreign commerce .Government “expert” witness will testify .Cocaine = Columbia .Methamphetamine = Mexico .Guns/Ammunition = cross state lines .Is there no defense to this element?

FDFCDC 221 4 Local Violence Only?

. United States v. Lopez, 514 U.S. 549 (1995) . 18 U.S.C. § 922(q)(1)(A), the Gun-Free School Zones Act of 1990 exceeded Congress’ power to legislate under the Commerce Clause . United States v. Morrison, 529 U.S. 598 (2000) . Civil remedies for the victims of gender-motivated violence did not involve economic activity or interstate commerce, and was therefore beyond the scope of Congress’ powers under the Commerce Clause . Jones v. United States, 529 U.S. 848 (2000) . Fire-bombed, owner occupied residence with no commercial purpose is not “used in” commerce or commerce-affecting activity . See the materials: five law review articles on the jurisdictional limits of the Commerce Clause, several specifically directed at street gang prosecutions

3. Perhaps A Criminal, but Not a Member or Associate

.There must be some connection between the defendant’s predicate acts and the enterprise. .See, e.g., United States v. Marino, 277 F. 3d 11 (1st Cir. 2002)

.The defendant was able to commit the predicate acts by means of, by consequence of, by reason of, by the agency of, or by the instrumentality of his association with the enterprise. Id.

FDFCDC 222 5 Mere Crime Is Not Enough . Evidence is required that “the resources, property, or facilities of the enterprise” were used to facilitate the individual crimes, e.g., distribution of drugs . See, e.g., Marino, 277 F.3d at 27-28 . Move to Sever – evidence of crimes unrelated to the alleged enterprise. See materials . No go? Move in limine to exclude the evidence . Relevancy – Rules 401 & 402 . More prejudicial than probative – Rule 403 . Prior bad acts – Rule 404(b) . See the materials – multiple motions to exclude

evidence 11

Withdrawal or OG?

. “[Withdrawal] typically requires evidence that the accused confessed his involvement in the conspiracy to the government or announced his withdrawal to his coconspirators.” . U.S. v. George, 761 F.3d 42 (1st Cir. 2014) . Mere cessation of activity on behalf of the conspiracy is not enough to show withdrawal . Avoiding contact with coconspirators, without more, is not tantamount to abandoning the conspiracy . Skipping meetings and refusing to answer calls from cooperating witnesses and coconspirators ‘constitute inaction rather than affirmative steps to distance himself from his prior involvement.’ Id. (citations omitted) . Old Gangster no longer a member of or associated with? . See the materials - Cecelia M. Harper, How Do I Divorce My Gang?: Modifying the Defense of Withdrawal for a Gang-Related Conspiracy, 50 Val. U. L. Rev. 765 (2016). http://scholar.valpo.edu/vulr/vol50/iss3/8 12

FDFCDC 223 6 1. An Enterprise?

. Includes any individual, partnership, corporation, association in fact, or other legal entity, and any union or group of individuals associated in fact although not a legal entity United States v.Turkette, 452 U.S. 576 (1981)

. An ongoing organization with associates, that functions “as a continuous unit.” United States vs. Connolly, 341 F.3d 16, 25 (1st Cir. 2003) (citing Turkette, 452 U.S. at 583)

Structure of an Enterprise – Turkette

. Name or geographic location? . Identifiable colors, signs, or other insignia? . Training sessions and meetings when making important decisions? . A common purpose or goal beyond the isolated benefit gained from committing each criminal act? . The degree to which members share resources and revenues? . A “sense of membership?” . Are individual criminal acts coordinated, does each further a general scheme or goal, and are they committed using a single consistent method? . Consistent participation by the central figures?

FDFCDC 224 7 4. A Pattern of Racketeering Activity – 18 U.S.C. § 1961(5)

.At least two acts of racketeering activity .The last of which occurred within 10 years after the commission of a prior act of racketeering activity .Excluding any period of imprisonment

Racketeering Activity – 18 U.S.C. § 1961 (1)

.(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance . . . which is chargeable under State law and punishable by imprisonment for more than one year; .(B) any act which is indictable under Title 18 . – In short, pretty much any crime of consequence

FDFCDC 225 8 Is There a Pattern? . Proof of two predicate acts alone is insufficient to establish a pattern . Instead, the predicate acts must prove the threat of continuous [illegal] activity and relationship

. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14 (1985) . H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989)(relationship is to each act or to an organizing principle) . See Corey P. Argust, Racketeer Influenced and Corrupt Organizations, 47 Am. Crim. L. Rev. 961, 967-968 (2010)

Enterprise vis a vis Pattern of Racketeering Activity (In Theory)

“The ‘enterprise’ is not the pattern of racketeering activity; it is an entity separate and apart from the pattern of activity from which it engages. The existence of an ‘enterprise’ at all times remains a separate element which must be proved by the Government.” Turkette, 452 U.S. at 583

FDFCDC 226 9 Turkette vis a vis Association-In-Fact Enterprises

. Edmund Boyle robbed banks . With a loosely organized core group . Some robbers came and went . The group did not have a leader, a hierarchy, or a long-term plan . For each robbery, the group “met beforehand to plan the crime, gather tools . . . and assign the roles that each participant would play . . . .” . Boyle requested a jury instruction requiring the prosecution to prove . By distinct evidence . That the group was an enterprise with a formal structure that could be defined separately and apart from the acts it committed

Enterprise Structure vis a vis A Pattern of Racketeering Activity?

. Boyle was convicted of RICO and substantive crimes. 2nd Circuit affirmed. . Petition for Certiorari - issue presented: . Whether an association-in-fact enterprise must have . “An ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” . Stated plainly, is there a distinction between an enterprise and the pattern of racketeering activity? . The Court answered three questions

FDFCDC 227 10 Structural Element – 1st Question

. HELD: An association-in-fact enterprise “must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” . The Court facially reiterated the Turkette holding: . The existence of an enterprise and the pattern are distinct elements . BUT, the evidence used to prove these elements “may in particular cases coalesce” Boyle v. United States, 556 U.S. 938 (2009)

Must the Structure Be Ascertainable? –2nd Question

.Since a jury must find the existence of elements of the crime beyond a reasonable doubt, requiring a jury to find the existence of a structure that is ascertainable would be redundant and potentially misleading. .Ergo, no such jury instruction is required . Boyle v. United States, 556 U.S. 938 (2009) .We are a long way from a statute directed against the Mafia

FDFCDC 228 11 Structure “In a Particular Case” May Be Inherent in the Pattern of Racketeering Activity – 3rd Question

. The enterprise’s purpose may be carried out “on an ad hoc basis” and without hierarchical decision-making

. While an enterprise requires an association among its members, they “need not have fixed roles; different members may perform different roles at different times”

. Although longevity is required, “nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence”

. Ergo, “proof of a pattern of racketeering activity may be sufficient in a particular case to permit a jury to infer the existence of an association- in-fact enterprise” (emphasis added)

Association-In-Fact Enterprises Turkette? (In Practice) . Without overturning Turkette, the Court held that an association-in-fact RICO enterprise is simply “a continuing unit that functions with a common purpose.” Boyle, 129 S. Ct. at 2245 . A RICO enterprise does not require a hierarchy, a chain of command, fixed roles, regular meetings, or rules and regulations. Id. . But, these Turkette-derived questions are still relevant . i.e., is there a purpose, relationships among the associated, & longevity/continuity sufficient to permit finding there is an association-in-fact enterprise? . How Does One Operate Or Manage An Enterprise? Insights From Boyle v. United States, Michael Levi Thomas, N.Y.U. Law Review, 87-1 (2012)

FDFCDC 229 12 RICO Conspiracy

RICO Conspiracy – 18 U.S.C. § 1962 (d)

.Unlawful to conspire to violate any provision of §§ (a), (b), or (c) .RICO Conspiracy vis a vis § 1962(c): .Agreement any conspirator would commit at least two acts of racketeering in conduct of enterprise affairs .No overt act required Salinas v. United States, 522 U.S. 52 (1997)

FDFCDC 230 13 How to Defend A Conspiracy?

.Topic onto itself

.But, some specific points . . .

Mere Association or Similarity of Conduct

. Association with co-conspirators, similar conduct, or mere presence with co- conspirators is alone not enough to establish membership in a conspiracy . The focus is on the individual, not the group . See, e.g., U.S. v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997)

FDFCDC 231 14 An Agreement or a Club?

. “[P]roblems . . . may arise when courts mistakenly deal with the crime of conspiracy as though it were a group rather than an act [i.e. of agreement].” . US v. Montserrate-Valentine, 729 F.2d 31, 43 (1st Cir. 2013) (citations, quotations omitted) . “Conspiracy law, like most criminal law, focuses upon the activities of an individual defendant. It is therefore dangerous to think of a conspiracy as a kind of ‘club’ that one joins or a ‘business’ in which one works.” Id. . The “gist of the conspiracy offense remains the agreement, and it is therefore essential to examine what kind of agreement or understanding existed as to each defendant.” Id. (emphasis in original)

Is There An Agreement?

.Cannot conspire with a government agent or cooperating witness after the witness becomes an informant . US v. Paladin, 748 F.3d 438, 449 n. 8 (1st Cir. 2014) .Drug seller does not conspire with drug buyer unless they share common purpose that buyer re-distribute. Proof of redistribution by itself not enough . US v. Boidi, 568 F.3d 24, 30 (1st Cir. 2009) 30

FDFCDC 232 15 Potential Defense: One – or More – Conspiracies?

.Does the evidence establish the existence of a single conspiracy with multiple criminal objectives, or separate “spoke” conspiracies?

Can the government prove that your client joined a larger, multiple objective conspiracy? What acts were in furtherance of the RICO conspiracy – AND, which were not? .Bruton issues where statements not in furtherance of the substantive RICO or conspiracy charged

Attack the Edges

FDFCDC 233 16 Knowledge of the Conspiracy

.“With respect to the second element, the Government must establish that the defendant had knowledge of the crime charged . . . Showing that the defendant had knowledge of generalized illegality is insufficient . . . [T]he Government must show that the defendant knew the conspiracy involved a controlled substance, but need not show that the defendant knew the specific controlled substance being distributed.” U.S. v. Burgos, 703 F.3d 1, 10 (1st Cir. 2012) . Government may satisfy this element by evidence of actual knowledge or willful blindness. Id.

Pinkerton Liability

When the government proves that a defendant has joined a conspiracy, that defendant becomes vicariously liable for the substantive crimes his co- conspirators commit .Were the acts in furtherance of the conspiracy? .Could your client reasonably have foreseen that a co-conspirator might commit the crime? Pinkerton v. United States, 328 U.S. 640 (1946)

FDFCDC 234 17 Co-Conspirator Statements Rule 801(d)(2)(E)

. Rule 801 Exclusions from Hearsay . (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

. (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

. (E) was made by the party’s coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish . . . the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Co-Conspirator Statements

.“The declarants' statements alone cannot satisfy the preponderance of the evidence standard; there must be some independent corroboration to allow admission.” .U.S. v. Diaz, 670 F.3d 332 (1st Cir. 2010)

FDFCDC 235 18 When Must the Court Make the Finding? Upon objection, the co-conspirator declaration may be conditionally admitted, and the court should inform the parties on the record out of the hearing of the jury that (a) the prosecution will be required to prove by a preponderance of the evidence that a conspiracy existed, that the declarant and defendant were members of it at the time that the declaration was made, and that the declaration was in furtherance of the conspiracy, (b) at the close of all the evidence the court will make a final Petrozziello determination for the record, out of the hearing of the jury; and, (c) if the determination is against admitting the declaration, the court will give a cautionary instruction to the jury, or, upon an appropriate motion, declare a mistrial if the instruction will not suffice to cure any prejudice.

U.S. v. Ciampaglia, 628 F. 2d 632, 638 (1st Cir. 1980)

When Must the Court Make the Finding?

. “Rare” instances when a pretrial hearing is warranted, but . “Although there might conceivably be instances where such a hearing would be helpful, we think that as a general rule such a hearing, unlike a pretrial suppression hearing, would unnecessarily lengthen the proceedings. Evidentiary questions are grist for the mill of district judges and, except in rare instances, can be handled competently in the trial context. In any event, this is a matter solely within the discretion of the district court. The district court did not abuse its discretion in refusing to hold a pretrial hearing on the admissibility of coconspirators' statements . . . the record shows that such a hearing would have been a total waste of time and effort.” U.S. v. Medina, 761 F.2d 12, 17 (1st Cir. 1985) . Ask the Court to require the government to make a proffer . See United States v. MacKenzie, 01-Crim-10350-DPW (D. Mass. Nov. 20, 2003) . See materials - Defendants’ Motion For An Advance Proffer, Hearing, And Ruling On The Admissibility Of Statements And Conduct By Alleged Co-Conspirators

FDFCDC 236 19 Unindicted Co-Conspirators

.DOJ policy forbids disclosing their identities in indictments .Find out who they are .Local Rules may require identification . See, e.g., Local Rule 116.1(c)(1)(E), Dist. of Mass. .If there are none and arguable co-conspirators testify .What does that say about your client’s culpability?

Co-Conspirator Statements

. Request a pretrial hearing on the admissibility of any co- conspirator statements which may be outside the conspiracy’s scope or excludable under Fed. R. Evid. 403 . See materials - Motion To Exclude Post-Contaminated Shipment - Recall Efforts . Request a pretrial hearing to determine if the government can prove a conspiracy exists and that the alleged co- conspirator statements are admissible . Request limiting instruction for impeachment purposes. United States v. Sauza-Martinez , 217 F.3d 754, 759-760 (9th Cir. 2000)

FDFCDC 237 20 Confrontation Right May Bar Hearsay Exceptions

. One brother & two other men indicted after implicated by the rat brother, who said he was only drinking during a two-day crime spree (murder, robbery, etc.) . Rat brother then claimed 5th at the trial of the other 3 . Rat brother’s statement admitted by AUSA against the other 3 as a statement against rat brother’s interest . Constitutional right to confrontation can call into question co-defendant statements and co-conspirator statements offered under other exceptions (e.g., against penal interests or residual trustworthiness) Lilly v. Virginia, 527 U.S. 116 (1999) 41

Impeaching Co-Conspirators – Fed. R. Evid. Rule 806

. When the government offers a statement by a co-conspirator in furtherance of the conspiracy against your client, you can: . Impeach the co-conspirator by introducing any prior convictions, you could use against him under Fed. R. Evid. 609 as if he were there on the stand . Impeach the co-conspirator by offering evidence, on cross-examination of testifying agents, e.g., that the co-conspirator said something inconsistent with the offered statement, either before or after making it . Cross-examine the testifying agent about the co-conspirator’s bias, e.g., pending charges at the time of the statement . Be wary of divide and conquer – seek severance if a co-defendant intends to use Rule 806 to offer otherwise inadmissible evidence (e.g., prior convictions) against your client 42

FDFCDC 238 21 Maximum Sentence – 18 U.S.C. § 1963

.20 years .Or life, if the violation is based on racketeering activity for which the maximum penalty is life .If your client has murder predicate(s): .Attacking it may be the only defense .When is 22 years a win?

Murder Predicates – But Not Your Client .Move to Sever – Fed. R. Crim. P. 14(a) .Prejudicial Joinder “Spillover Effect” .Judicial Economy .Jury Confusion .Move to Preclude Evidence of the Murders .More prejudicial than probative – Fed. R. Evid. 403 .Jury confusion .Relevancy – Fed. R. Evid. 401 .See the materials – motions, memos & Order to sever from murder defendants in three different RICO cases. 44

FDFCDC 239 22 RICO/Gang “Experts”

Indicia of Gang Association?

. Colors . Clothing, e.g.: . Type of hat, athletic shirt . Tilt of clothing or jewelry to one side or the other . Bandannas or scarves hanging from belt loops, pockets, or tied to the leg . Eyebrows shaved or lines shaved through them . Burn marks (brands) on the arms, hands, or chest . Writing on the inside of hat, or under the brims for gang writing . Tattoos . Explicit gang identification . Tattoos on the inside of the hand or between the thumb or index finger . Google – client, gang and/or clique . E.g., https://en.wikipedia.org/wiki/List_of_gangs_in_the_United_States . Social media . Facebook, etc. . YouTube 46

FDFCDC 240 23 Sez Who? Government Gang “Expert”

. Cop dressed-up to be an EXPERT . The lead investigator . Often the lead in the wiretap investigation . Don’t open the door on cross . See materials - Motion Exclude Case-Agent Testimony Regarding Investigation . A gang member . A snitch . Cooperating former co‐D . Academician . RICO to Prosecute Gangs, Leeza Cherniak 47

United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)

MS-13 gang convictions reversed due to erroneous law enforcement “expert” testimony, including: .Inadmissible testimony on factual matters; .Merely repeating hearsay statements without using expertise to reach an opinion; and .Repeating and summarizing the testimonial statements of others, which violated the Confrontation Clause

FDFCDC 241 24 Bad Sources = Bad Opinions

.Gang “experts” are not scientists .Heavy reliance on snitches .Seek discovery of sources .Entitled to impeach hearsay declarants – seek discovery (most importantly of informants trading info for freedom) .Pretrial Crawford challenge .Pretrial Daubert challenge .See the materials – Motion To Compel Expert Witness Disclosures 49

Gang Expert – Source Discovery

. All reports reviewed by expert and by other task force members . All transcripts of expert and members of the team . All records relating to formal training . Gang lists . Reports, publications, classes . Gang validation criteria and memoranda . Gang validation reports re: client and re: gang . Other documents relied upon to establish existence of gang . Other documents relied upon to establish membership of client . E.g., self-admission/jail intake . Documents relied upon to establish pattern of conduct & predicate acts . Documents establishing activity and organization of gang . E.g., police reports, FIO, self‐admission

FDFCDC 242 25 Gang Expert – Admissibility

. Foundation . Crawford v. Washington, 541 U.S. 36 (2004) – confrontation right . Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“charges the [trial] court with assuring that expert testimony ‘rests on a reliable foundation and is relevant to the task at hand’”) . General Electric Co. v. Joiner, 522 U.S. 136 (1997) . Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999) . See the materials - Sabelli & Chorney, Gang Expert Testimony and the Applicability of Crawford

Challenge Expertise – Pretrial & Trial

. Bias – only testifies for the government? . Training – what is the claimed area of expertise . If formal, from where? . OTJ from other cops? . Peer review? . Educational background? Organizations? . Articles – What does s/he read? Write? Rely upon? . What does the gang “expert” rely upon to formulate opinion that: . A gang/enterprise exists? . Meaning (translation) of gang signs , nicknames or lingo? . Your client is a member?

FDFCDC 243 26 Defense Expert – Is It A Gang/Enterprise?

.Former Cop .Community activists .Journalists .Workers at local centers .Rehab counsellors?

Toxic Rule 1006 Exhibits

.When the Government’s charts are not proper summaries of the evidence under Rule 1006, but rather, “pedagogical devices that unfairly emphasize part of the proponent’s proof or create the impression that disputed facts have been conclusively established or that inferences have been directly proved.” .See, e.g., United States v. Drougas, 748 F.2d 8, 25 (1st Cir. 1984). .See the materials - Motion To Exclude Improper Summary Exhibits 54

FDFCDC 244 27 Essential Joint Strategies

“We must all hang together or assuredly we shall all hang separately.”

.We each represents only our own client, but .Cannot let the government divide & conquer .Imperative to be together .E-mail list with all counsel .Regular defense meetings with agendas .Divvy up primary responsibility for witnesses

FDFCDC 245 28 Joint Defense Cooperation . Joint Defense Agreement? . See the materials - Miriam Conrad, Ethical Issues in Representing Clients in a Multi- Defendant Case

. Coordinating Discovery Attorney (CDA)

. Online database programs – seek funds

. Paralegal funding and organization

. Investigator appointed and funded . Expert(s)

. See materials - Joint Application For Daily Transcripts57

Seek Early Disclosure

. Jencks materials . Witness list . Experts and expert opinions . Defendant’s & co-defendants’ statements . Request production under Rule 14(b) (prejudicial joinder) . Statements may need to be excluded, sanitized, etc. . To avoid Bruton issues in context of RICO Pinkerton liability . Local Rules? . Due process & right to a defense . Insufficient time to fully prepare a complex case . Stress cost, judicial and trial economy . Need for in-trial continuances . CJA costs

FDFCDC 246 29 Jury Considerations

. Jury voir dire questionnaires . Jury consultants . Number of peremptory challenges . Team effort needed . Joint defense meetings/planning . Special verdict slips . Lesser included offenses? .E.g., murder or manslaughter?

National Litigation Support FD.ORG

. CJA Resources – Saturday Plenary, 8:45 a.m. . Litigation Support Section . National Litigation Support Team . CJA Panel Attorney Software Discounts . Coordinating Discovery Attorneys (CDAs) . Joint DOJ/Administrative Office of U.S. Courts . Electronically Stored Information (ESI) Protocols . Criminal E-Discovery Pocket Guide for Judges

FDFCDC 247 30 DOJ Prosecution Manuals – In the materials

.Criminal RICO: 18 U.S.C. §§ 1961-1968 – A Manual For Federal Prosecutors (6th Rev. Ed., May 2016) .Violent Crimes in Aid of Racketeering 18 U.S.C. § 1959 – A Manual for Federal Prosecutors (December 2006)

– Attack the Core – – Attack the Edges – – Joint Defense –

Good Hunting!

FDFCDC 248 31 ETHICS GAME SHOW, ROUND VI

Kenneth P. Troccoli, with Ellen Shultz assisting

DISCUSSION OVERVIEW

Note: A .pdf file containing the PowerPoint slides will be e-mailed to program attendees at the conclusion of this session and will also be available at the following link: http://vae.fd.org/content/training.

Jeopardy Categories

Infamous Lawyers Lawyer Well-Being Got Civility? Self-Reporting Grab Bag

I. Client With Impairment

A. RPC 1.6 (Confidentiality of Information) B. RPC 1.14 (Client With Impairment) C. LEO 560 (1984) (Confidence/Secret – Intent to Commit Suicide)

II. Truthfulness, Fraud, and Candor Toward the Tribunal (Role Play)

A. RPC 1.2 (Scope of Representation) B. RPC 1.6 (Confidentiality of Information) C. RPC 1.16 (Termination of Representation) D. RPC 3.3 (Candor Toward the Tribunal) E. RPC 3.4 (Fairness to Opposing Party and Counsel) F. RPC 4.1 (Truthfulness in Statements to Others) G. RPC 8.4 (Misconduct)

FDFCDC 249 H. LEO 306 (1978) (Fee – Court-Appointed Attorney) I. LEO 390 (1980) (Perjured Testimony – Court-Appointed Attorney)

III. Client Files

A. RPC 1.16 (Termination of Representation) B. LEO 1366 (1990) (Files - Duty to Client) C. LEO 1790 (2004) (Client Files – Attorney’s Refusal to Release PSR)

IV. Plea Bargaining

A. RPC 1.3 (Diligence) B. RPC 1.7 (Conflict of Interest) C. RPC 8.4 (Misconduct) D. LEO 1857 (2011) (Waiver of Prospective IAC Claim)

FDFCDC 250 How Virginia Lawyers Self-Regulate: A View from Ethics Counsel by James M. McCauley, ethics counsel for the Virginia State Bar

As I move into my 30th year of employment services), and Rule 6.4 (law reform activities affecting client interests). at the Virginia State Bar (VSB), I am given an op- After the Court adopted the Virginia Rules of Professional portunity to reflect on the significant changes in Conduct effective January 1, 2000, the Standing Committee on Legal Ethics (Ethics Committee) was charged with the respon- the Rules of Professional Conduct (RPC) and our sibility of reviewing and recommending any further proposed regulation of the practice of law in Virginia — and changes to the RPC. However, any proposals to amend the RPC how volunteer lawyers have served to shape these may originate from other committees, sections, or constitu- encies of the bar, followed by review and recommendation by changes. the Ethics Committee. Since the RPC are rules of the Supreme Court of Virginia, presumably the Court could adopt a new When I started at the VSB in 1989, we were governed by the rule or amend a rule on its own initiative. Although the Court former Code of Professional Responsibility (Code) with its has never done that during my tenure, it has made modifi- Disciplinary Rules and Ethical Considerations. The Supreme cations to rule amendments proposed by the VSB and has Court of Virginia adopted the ABA Model Rules format on occasionally rejected rule amendment proposals submitted to January 1, 2000, after a five-year study by a special commit- the Court by the VSB. tee, chaired first by Donald Lemons, now Chief Justice of the After a 1998 California case1 ruled that some New York Supreme Court of Virginia, and succeeded by the late Dennis lawyers committed unauthorized practice of law (UPL) in (“Denny”) W. Dohnal who took the task of drafting the new assisting a client in an arbitration in California, including rules to completion. In comparing the Code to the ABA Model work performed by the lawyers at their New York offices, Rules, the special committee found itself keeping some of the state bar regulators began to study their own UPL rules in the old Code rules and language but adopting much more of the early to mid-2000s. The VSB created task forces for corporate new Model Rule language. To this day, there remain some sub- counsel, chaired by the late W. Scott Street III, and multiju- stantial differences between the Virginia Rules of Professional risdictional practice, chaired by Marni E. Byrum, to study Conduct and the ABA Model Rules. Given a project of consid- these issues and recommend changes to the RPC. Based on erable scope and importance, the special committee obviously their work product, the Court adopted a Corporate Counsel considered each rule before adopting language from the ABA rule to authorize out-of-state lawyers to serve their employers Model Rules, or incorporating language from the former Code, in Virginia and do pro bono work; and amended Rule 5.5 to or developing its own language for a particular rule. allow out-of-state lawyers to engage in temporary practice in The Model Rules adopted by the Court filled several gaps Virginia subject to certain conditions. These amendments, left in the former Code, including Rules 1.2 (scope of represen- adopted in most other states, have given lawyers greater mo- tation), 1.13 (organizational clients), 1.14 (clients with dimin- bility and flexibility in multijurisdictional practice, without ished capacity), 1.17 (sale of a law practice) and a set of rules the necessity of seeking reciprocity or admission by examina- for lawyer serving as third party neutrals in alternative dispute tion into another state’s bar. resolution (Rules 2.3, 2.10 and 2.11). The former Code also In more recent times, the VSB discontinued its Advertising had no counterpart for Rules 4.4 (respect for rights of third and UPL committees, finding that the work of both commit- persons), 5.1 and 5.3 (requiring supervision of subordinate tees could be handled by staff under the supervision of the lawyers and nonlawyer employees or agents), 6.3 (membership Ethics Department and the Standing Committee on Legal in legal services organizations), and 8.2 (criticism of judges). Ethics. New rules were added to the RPC, including Rule 1.18, Virginia did not adopt some of the ABA Model Rules, for which addresses conflicts created by discussions with prospec- example, Rule 3.2 (expediting litigation), Rule 3.9 (advocate tive clients and allows screening to avoid imputation, and Rule in non-adjudicative proceedings), Rule 5.2 (duties of subor- 5.8 that sets out rules for notification to clients when a lawyer dinate lawyer), Rule 5.7 (responsibilities regarding law-related leaves a law firm. www.vsb.org FDFCDC 251ETHICS | Vol. 67 | December 2018 | VIRGINIA LAWYER 39 HOW VIRGINIA LAWYERS SELF-REGULATE

The Court adopted amendments to Rules 1.1 (compe- There were significant changes in the manner that the tence) and 1.6 (confidentiality) to recognize that lawyers have VSB and the Court promulgate new rules, amendments to duties with respect to using technology and exercising reason- the RPCs, and Legal Ethics Opinions (LEOs). When I started able care to safeguard confidential information from intercep- as ethics counsel, in 1995, LEOs were issued by the Standing tion, theft, inadvertent disclosure, and unauthorized access or Committee on Legal Ethics, and they were effective when destruction by hackers. On the recommendation of the Ethics issued, although they were non-binding and advisory only. Committee, the Court has streamlined and simplified the There was no opportunity for public comment, except in lawyer advertising rules, beginning in 2013 with the removal of rare instances where the particular LEO was sent to the VSB the unqualified ban on in-person solicitation in cases involving Council and the Court for approval. Now, all LEOs must be personal injury or wrongful death, and later in 2017 by remov- reviewed and approved by Council and the Court before they ing the disclaimers required for advertising specific case results become effective. Once the Court adopts a LEO, it has the and specialization certifications awarded lawyers by accrediting effect of a decision of the Court. The Committee releases a organizations. The changes also recognize the more contem- proposed LEO and publishes it for public comment to start the porary means by which a lawyer may market legal services and promulgation process. This same procedure is required for new develop clients in the digital age, i.e., social networking, lead rules added to the RPC or rule amendments. This enables the generation, online attorney-client matching, and referral ser- committee to consider comments that have been made before vices. Most importantly, the overhaul of the lawyer advertising submitting the proposed LEO or rule amendment to Council. rules rebalances the VSB’s interest in policing advertising that Both Council and the Court are given all the comments to a is false and misleading with the lawyer’s right of commercial proposed LEO or rule change. This process slows down the speech, by removing technical and unnecessary requirements pace of the rule-making and LEO promulgation, but it results that do not advance an important regulatory objective. in a more deliberate and thoroughly vetted rule or LEO. A special study committee, chaired by Former UPL A more recent and noteworthy change is a national Committee Chair Adam Elfenbein and composed of persons movement that focuses on lawyer well-being. This movement with expertise and experience with the UPL rules and UPL grew out of two studies published in 2016 revealing that investigations, met over a two-year period with the goal of lawyers and law students are 2–3 times more likely to suffer rewriting the UPL rules to make them more concise and easier from anxiety, depression, substance abuse, and suicide than the general population. Based on these studies, the Ethics Committee issued two LEOs, 1886 and 1887, which discuss a lawyer’s ethical obligations when faced Most importantly, the overhaul of the lawyer advertising rules with a lawyer that appears to have im- rebalances the VSB’s interest in policing advertising that is false pairment. A national task force on lawyer well-being issued a report2 in August 2017 and misleading with the lawyer’s right of commercial speech, by urging a call to action by all stakeholders removing technical and unnecessary requirements that do not in our legal system — regulators, insurers, law schools, lawyers’ assistance programs, advance an important regulatory objective. judges, public and private employers, admissions officials — to address what might be described as a “wellness crisis” for the legal profession. Our Chief Justice to read. Their work product, if adopted by the Court, will Donald Lemons and Katie Uston, assistant bar counsel, sat on produce a more user-friendly regulatory document for judges, that national task force, so Virginia is playing an active role in lawyers, and members of the public to follow. The proposal this movement. Our Supreme Court appointed a Committee may be studied here: www.vsb.org/docs/prop-UPL-050318.pdf on Lawyer Well-Being chaired by Justice Mims which issued its The VSB currently has four full-time lawyers and an exec- report3 in September 2018 recommending changes designed utive assistant working the Ethics Hotline and serving several to improve lawyer well-being. The most significant change committees and task forces. The Ethics Department is now a is a call for increased funding of Lawyers Helping Lawyers, a separate operation that reports to the executive director and is Virginia non-profit organization whose clinician, executive no longer a part of the Professional Regulation Department. director, and 150 lawyer volunteers throughout the state help The Ethics Department resides on a different floor and has lawyers with mental health and substance abuse issues get separate, restricted servers to maintain the confidentiality of assessments, referrals, support, treatment, and counselling. all its data. On average, the Ethics Hotline gets 25–30 inquiries Another important recommendation is mandatory continuing per day by telephone or email ([email protected]). Lawyers education to improve lawyers’ awareness and knowledge of can access the hotline at the VSB website here: www.vsb.org/ wellness, and to learn how to reach out and be proactive when site/regulation/ethics. Lawyers may expect a response within we see a colleague at risk. To this end the VSB is amending its hours of their inquiry and generally on the same day. MCLE rules and regulations to enable lawyers to earn MCLE

40 VIRGINIA LAWYER | December 2018 | Vol. 67 | ETHICS FDFCDC 252 www.vsb.org HOW VIRGINIA LAWYERS SELF-REGULATE

VSB Ethics Department Staff

Left to right: James M. McCauley, Seth M. Guggenheim, Barbara B. Saunders, Emily F. Hedrick, and Kristi R. Hall

credit for courses that focus on lawyer wellness issues. The self-regulation also demands that we advance the availability Ethics Committee had already embraced a recommendation of and quality of legal services provided to the people of Virginia; the national task force to amend Rule 1.1 (competence) to call and to assist in improving the legal profession and the judicial attention to the fact that well-being is an aspect of providing system. competent representation to clients; and the fact that lawyers I look forward to a few more years working with the Ethics must be aware of the role of well-being in maintaining compe- Committee and my hard-working, talented and energetic col- tence to practice law. The proposed amendment was submitted leagues: Kristi Hall, Emily Hedrick, Barbara Saunders, and Seth to the Court in June 2018. Guggenheim. Each of them, in addition to handling the Ethics As I grow closer to the end of my career at the VSB, I am Hotline, wear other special hats in serving other committees, extremely grateful to all the volunteers that have served the task forces, and sections within the VSB. In addition, they all VSB as members of its many different committees and task write articles, teach CLE seminars, draft opinions, and provide forces. The Ethics Committee, though, has enjoyed most of my resources on legal ethics to the VSB website. Kristi Hall, our time and attention. The Ethics Committee, currently chaired executive assistant, coordinates, supports and interacts with by Eric Page, struggles with some of the most difficult ques- all of our VSB staff internally and with our lawyer volunteers tions on a regular basis. All the easy questions have been asked externally; and she keeps our operation running smoothly and and answered. The “black and white” situations do not go to effectively. They do all of this consistently with enthusiasm and the Ethics Committee. The committee’s composition changes professionalism. I am grateful for their support, comradery, regularly but the VSB has kept diversity in the forefront. Every and friendship. q volunteer that has served on the committee and has shared their opinion with me has said that serving on the committee Endnotes: 1 Birbrower, Montalbano, Condon & Frank v. Superior Court, 2 Cal.3d 535, was by far the most fulfilling and intellectually stimulating ex- 543, 86 Cal.Rptr. 673, 469 P.2d 353 (1998) perience of all their service to the bar. That committee has the 2 www.americanbar.org/content/dam/aba/images/abanews/ ThePathToLawyerWellBeingReportFINAL.pdf important responsibility and privilege of drawing the ethical 3 www.vsb.org/docs/A_Profession_At_Risk_Report.pdf boundaries in which lawyers practice law by interpreting and 4 See page 67 for a committee preference form. President-elect Marni E. applying the RPC to a given factual scenario and by recom- Byrum seeks volunteers to serve on committees, including legal ethics. mending changes to the rules when necessary.4 The ability of members of the bar to write and enforce the rules by which they are governed is a unique privilege, especially when compared to how other occupations and profes- sions are regulated. But the privilege of self-regulation has its price — the sacrifice of the time, hard work, and talent of the many wonderful volunteers who contribute to maintaining public confidence in our bar as a profession, not a business. The price of self-regulation also means serving the public and our clients by regulating the profession with fairness, efficiency and transparency to the fullest extent possible. The privilege of www.vsb.org FDFCDC 253ETHICS | Vol. 67 | December 2018 | VIRGINIA LAWYER 41 P RINCIPLES OF P ROFESSIONALISM

PREFACE “The Supreme Court of Virginia endorses the attached Principles of Professionalism for Virginia Lawyers prepared by the Virginia Bar Association Commission on Professionalism. Having been unanimously endorsed by Virginia’s statewide bar organizations, the Principles articu- late standards of civility to which all Virginia lawyers should aspire. The Principles of Professionalism shall not serve as a basis for disciplinary action or for civil liability. We encourage the widest possible dissemina- tion of these Principles.”

Leroy Rountree Hassell, Sr. Chief Justice, Supreme Court of Virginia

PRINCIPLES OF PROFESSIONALISM FOR VIRGINIA LAWYERS

Preamble Virginia can take special pride in the important role its lawyers have played in American history. From Thomas Jefferson to Oliver Hill, Virginia lawyers have epitomized our profession’s highest ideals. Without losing sight of what lawyers do for their clients and for the public, lawyers should also focus on how they perform their duties. In their very first professional act, all Virginia lawyers pledge to demean themselves “professionally and courteously.” Lawyers help their clients, the institutions with which they deal and themselves when they treat everyone with respect and courtesy. These Principles of Professionalism serve as a reminder of how Virginia lawyers have acted in the past and should act in the future.

Principles In my conduct toward everyone with whom I deal, I should: • Remember that I am part of a self-governing profession, and that my actions and demeanor reflect upon my profession. • Act at all times with professional integrity, so that others will know that my word is my bond. • Avoid all bigotry, discrimination, or prejudice. • Treat everyone as I want to be treated — with respect and courtesy. • Act as a mentor for less experienced lawyers and as a role model for future generations of lawyers. • Contribute my skills, knowledge and influence in the service of my community. • Encourage those I supervise to act with the same professionalism to which I aspire.

In my conduct toward my clients, I should: • Act with diligence and dedication — tempered with, but never compromised by, my professional conduct toward others. • Act with respect and courtesy. • Explain to clients that my courteous conduct toward others does not reflect a lack of zeal in advancing their interests, but rather is more likely to successfully advance their interests.

In my conduct toward courts and other institutions with which I deal, I should: • Treat all judges and court personnel with respect and courtesy. • Be punctual in attending all court appearances and other scheduled events.

FDFCDC 254 237 VIRGINIA STATE BAR PROFESSIONAL GUIDELINES 2009–2010 P RINCIPLES OF P ROFESSIONALISM

• Avoid any conduct that offends the dignity or decorum of any courts or other institutions, such as inappropriate displays of emotion or unbecoming language directed at the courts or any other participants. • Explain to my clients that they should also act with respect and courtesy when dealing with courts and other institutions. In my conduct toward opposing counsel, I should: • Treat both opposing counsel and their staff with respect and courtesy. • Avoid ad hominem attacks, recognizing that in nearly every situation opposing lawyers are simply serving their clients as I am trying to serve my clients. • Avoid reciprocating any unprofessional conduct by opposing counsel, explaining to my clients that such behavior harms rather than advances the clients’ interests. • Cooperate as much as possible on procedural and logistical matters, so that the clients’ and lawyers’ efforts can be directed toward the substance of disputes or disagreements. • Cooperate in scheduling any discovery, negotiations, meetings, closings, hearings or other litigation or transac- tional events, accommodating opposing counsel’s schedules whenever possible. • Agree whenever possible to opposing counsel’s reasonable requests for extensions of time that are consistent with my primary duties to advance my clients’ interests. • Notify opposing counsel of any schedule changes as soon as possible. • Return telephone calls, e-mails and other communications as promptly as I can, even if we disagree about the subject matter of the communication, resolving to disagree without being disagreeable. • Be punctual in attending all scheduled events. • Resist being affected by any ill feelings opposing clients may have toward each other, remembering that any conflict is between the clients and not between the lawyers.

238 FDFCDC 255 VIRGINIA STATE BAR PROFESSIONAL GUIDELINES 2009–2010 Committee Opinion November 16, 1978

LEGAL ETHICS OPINION 306 FEE – COURT-APPOINTED ATTORNEY.

A court-appointed attorney may accept a fee from his client upon learning that the client is not truly indigent, provided that the court is informed, the attorney submits no voucher with the court and the client is extended the opportunity to retain counsel of his choice once his ability to pay has been ascertained. [See II: DR:7-102(A)(3).]

Committee Opinion November 16, 1978

FDFCDC 256 FDFCDC 257 Committee Opinion April 10, 1984

LEGAL ETHICS OPINION 560 CONFIDENCE/SECRET – INTENT TO COMMIT SUICIDE.

It is not improper for an attorney to disclose to appropriate mental health authorities the stated intentions of a client to leave the state and commit suicide. [ DR:4-101(B)(1), DR:4-101(D)(1), ABA Informal Opinions 1188, 1413, 1458.]

Committee Opinion April 10, 1984

FDFCDC 258 Committee Opinion July 24, 1990

LEGAL ETHICS OPINION 1366 FILES – DUTY TO CLIENT: CONTENTS OF FILE TO WHICH THE CLIENT IS ENTITLED.

You have indicated that former clients have requested the entire contents of all files relating to legal services performed for them over a period of several years, which files include notes, multiple drafts and other documents which led to final documents or resulted in advice given as to a particular matter. You have also noted that the former clients in question were sent copies of all relevant documents prepared for them throughout the course of the firm's representation. You advise that your firm recognizes that any client has a right to receive all documents that it would have reason to need, including "work product" created for the client, and that you are willing to copy such documents at your (firm's) cost. Finally, you indicate that your former clients (and their new counsel) have declined your invitation to review all material of any kind that was prepared in representing them and, if that review uncovered any needed documents, those documents would be given to the former clients.

You have asked that the Committee opine as to whether, under the circumstances you describe, the "work product" to which the former client is entitled includes multiple drafts of documents and attorney's notes and internal memoranda.

For purposes of this opinion, the Committee assumes that no fees are owing to the firm as a result of its representation of the former clients.

The appropriate and controlling Disciplinary Rule relevant to your inquiry is DR:2- 108(D) which, while permitting the lawyer to "retain papers relating to the client to the extent permitted by applicable law," requires that, upon termination of representation, the lawyer deliver to the client all papers and property to which the client is entitled. The operative concept involved in the pertinent Disciplinary Rule is meant to ensure that the former lawyer does not prejudice his former client in any way.

The Committee has earlier opined that the "applicable law" to which DR:2-108(D) refers is that which relates to an attorney's lien for legal fees owed by the client. See LE Op. 1171. Thus, under the assumption that your former client does not owe any fees, the Committee further assumes that no statutory or common-law possessory lien arises upon which you or your firm may base any retention of any materials in the client's file.

The Committee is of the view that any legal definition of "work product," as applied in the Rules of Evidence or elsewhere in a legal context is inapposite to the question of delivery of a client's file since a file may contain additional materials which were not prepared in anticipation of litigation or for trial. Rather, the Committee opines that the term's plain meaning is applicable and refers to all materials prepared or collected by the attorney, or at the attorney's direction, in relation to any legal services for which the client engaged the attorney or the law firm over the entire period of the provision of such services. Thus, the Committee is of the opinion that, with relation to the ownership of a

FDFCDC 259 Committee Opinion July 24, 1990 client's file, where no fees are outstanding, "work product" includes, as you have enumerated, attorney's notes, internal memoranda and multiple drafts and other documents which lead to final documents or result in advice given as to a particular matter.

Thus, the Committee is of the further opinion that the client is entitled to the entire contents of his file and the attorney is not entitled to refuse to turn over that file or any portion thereof. The Committee reiterates its view that the entire file is "property to which the client is entitled," thereby eliminating any necessity for a determination by anyone other than the client as to what the client may need. Futhermore, such ownership of the file is irrespective of any earlier provision of copies to the client. LE Op. 1171; Scroggins v. Powell, Goldstein, Frazier and Murphy, 15 B.R. 232, 241 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982). See also Vargas v. United States, 727 F.2d 941, 944 (10th Cir. 1984), cert. denied, 469 U.S. 819 (1984).

Committee Opinion July 24, 1990

Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide files to a former client.

FDFCDC 260 Committee Opinion January 5, 2004

LEGAL ETHICS OPINION 1790 CLIENT FILES – REFUSAL OF ATTORNEY TO RELEASE A COPY OF THE DEFENDANT’S PRE-SENTENCE REPORT TO THE DEFENDANT.

Your request presented a hypothetical situation involving a client requesting a copy of his file from an attorney. Specifically, the attorney had represented the client in a criminal matter. The client was convicted in a Virginia circuit court. The trial judge set a sentencing hearing and ordered a probation officer to prepare a pre-sentence report for use at that hearing. The officer forwards a copy of the report to the attorney, who reviews it with his client. One day after the sentencing hearing, the client informs the attorney that the client will be petitioning the Supreme Court of Virginia for a writ of habeas corpus. The client requests that the attorney provide the file to the client, including the pre-sentence report.

The question raised by your hypothetical is whether the attorney has a duty to provide the pre- sentence report to the client. The pertinent provision of the Rules of Professional Conduct is Rule 1.16(e), which specifically governs the lawyer’s duty to transmit the client’s file upon termination of the relationship and at the request of the client. Whether the attorney must provide a copy or an original of the contents depends on the nature of each document; however, paragraph (e) does require provision of the client’s entire file, except for one narrow category:

Billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts, staffing considerations, or difficulties arising from the lawyer-client relationship.

A pre-sentence report is not the sort of internal document described by the exception. Therefore, the general requirement from this provision would apply: that the lawyer provide file contents or, in many instances, copies of those contents, to the client. Comment 11, however, sets forth an important limitation:

The requirements of paragraph (e) should not be interpreted to require disclosure of materials where the disclosure is prohibited by law.

Your request references Attorney General Jerry W. Kilgore’s Advisory Opinion, dated March 31, 2003, which interprets Virginia Code §19.2-299, as addressing the legal issue of whether disclosure of pre-sentencing reports by attorneys to their clients is prohibited by law. The exclusive purview of this committee is to interpret the Rules of Professional Conduct; it would be outside that purview for this committee to analyze other legal authority regarding disclosure of pre-sentence reports. This committee, therefore, declines to do so.

This opinion is advisory only, based solely on the facts you presented and not binding on any court or tribunal.

Committee Opinion January 5, 2004

FDFCDC 261 LEGAL ETHICS OPINION 1857 MAY A PROSECUTOR OFFER, AND MAY A CRIMINAL DEFENSE LAWYER ADVISE HIS CLIENT TO ACCEPT, A PLEA AGREEMENT THAT REQUIRES A WAIVER OF THE RIGHT TO LATER CLAIM INEFFECTIVE ASSISTANCE OF COUNSEL?

In this hypothetical, a defense lawyer represents a client who intends to plead guilty. The plea agreement provides that “I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree I will not file any document which seeks to disturb any such order. I agree and understand that if I file any court document seeking to disturb, in any way, any order imposed in my case, such action shall constitute a failure to comply with a provision of this agreement.” This provision is standard in all plea agreements offered by the prosecutor’s office, however, defense counsel has concerns that this provision may have the legal effect of waiving the client’s right to later claim ineffective assistance of counsel. The defense lawyer asks whether he can ethically advise his client as to whether to waive that right and whether the prosecutor can ethically require this waiver as a term of a plea agreement.

QUESTIONS PRESENTED

1. May a defense lawyer advise a client to enter into a plea agreement with language that may effectively waive the right to allege ineffective assistance of counsel as part of a waiver of the right to collaterally attack a conviction covered by a plea agreement?

2. If the defendant’s lawyer declines to advise him on the issue, does the prosecutor’s suggestion that the defendant agree to the provision knowingly take advantage of an unrepresented defendant?

APPLICABLE RULES AND OPINIONS

The applicable Rules of Professional Conduct are Rule 1.3(c)1, Rule 1.7(a)(2)2, Rule 1.8(h)3, and Rule 8.4(a)4. Additionally, Legal Ethics Opinions 1122, 1558, and 1817 are relevant to the conflict of interest analysis.

1 Rule 1.3 Diligence * * * (c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

2 Rule 1.7 Conflict of Interest: General Rule (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: * * * (2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

3 Rule 1.8 Conflict of Interest: Prohibited Transactions * * * (h) A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to the client for malpractice. * * * 4 Rule 8.4 Misconduct It is professional misconduct for a lawyer to:

FDFCDC 262 LEO 1857 Page 2 ANALYSIS

Federal courts have consistently held that such a provision is legally enforceable against the defendant. In U.S. v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005), the court held that there is no reason to distinguish between a waiver of direct appeal rights and a waiver of collateral attack rights, and therefore a waiver of all collateral attack rights is valid so long as the waiver is knowing and voluntary. In general, a defense lawyer may counsel a client to enter into a lawful plea agreement; however, in this case, the content of the plea agreement raises ethical concerns, to the extent that the language of the plea agreement has the intent and effect of waiving the client’s right to claim ineffective assistance of counsel.

Though they are not in full agreement on the rationale for their opinions, several states have found that it is unethical for a defense lawyer to advise his client to accept such a plea bargain provision, and that it is unethical for a prosecutor to propose such a provision.5 Only one state has found such a provision ethically permissible, on the grounds that Rule 1.8(h) applies exclusively to waivers of malpractice liability.6

Defense lawyer’s duties

The Committee agrees with the majority of states that have considered this issue that, to the extent that a plea agreement provision operates as a waiver of the client’s right to claim ineffective assistance of counsel, a defense lawyer may not ethically counsel his client to accept that provision. There is a concurrent conflict of interest as defined by Rule 1.7(a)(2) between the lawyer’s personal interests and the interests of the client. Defense counsel undoubtedly has a personal interest in the issue of whether he has been constitutionally ineffective, and cannot reasonably be expected to provide his client with an objective evaluation of his representation in an ongoing case. This conflict was discussed in LEO 1122, which concluded that a lawyer should not represent a client on appeal when the issue is the lawyer’s own ineffective assistance because “he would have to assert a position which would expose him to personal liability.” Likewise, LEO 1558 concluded that a lawyer could not argue that he had improperly pressured his client into accepting a guilty plea, because of the conflict between the interests of the client and the lawyer’s interest in protecting himself. Further, both conflicts cannot be cured even with client consent. LEO 1817 recently reaffirmed the accuracy of this conflict of interest analysis.

A defense lawyer who counsels his client to agree to this provision also violates Rule 1.3(c). The client has a constitutional right to the effective assistance of counsel and the defense lawyer’s recommendation to bargain that right away prejudices the client.

Although other states have interpreted their versions of Rule 1.8(h) to bar the defense lawyer from advising his client on this issue,7 Virginia’s Rule 1.8(h) does not apply in this situation because the defense lawyer is not making the agreement in this case – he is advising his client whether to enter into an agreement sought by the government.

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; * * * 5 Advisory Committee of the Supreme Court of Missouri, Formal Opinion 126 (2009); The North Carolina State Bar Ethics Commission, Formal Opinion RPC 129 (1993); Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, Opinion 2001-6 (2001); Vermont Bar Association, Advisory Ethics Opinion 95-04 (1995).

6 State Bar of Arizona Commission on the Rules of Professional Conduct, Opinion 95-08 (1995). 7 The North Carolina State Bar Ethics Commission, Formal Opinion RPC 129 (1993); Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, Opinion 2001-6 (2001); Vermont Bar Association, Advisory Ethics Opinion 95-04 (1995).

FDFCDC 263 LEO 1857 Page 3 Prosecutor’s duties

Your second question presented addresses the prosecutor’s role in seeking this waiver. The Committee is of the opinion that it is a violation of Rule 8.4(a) for the prosecutor to offer a plea agreement containing a provision that has the intent and legal effect of waiving the defendant’s right to claim ineffective assistance of counsel. Because the prosecutor refuses to offer a plea agreement that does not include this provision, he is implicitly requesting that the defense lawyer counsel his client to accept this provision, which is an inducement to the defense lawyer to violate Rules 1.3(c) and 1.7.

This opinion is advisory only based upon the facts as presented, and not binding on any court or tribunal.

Committee Opinion July 21, 2011

FDFCDC 264