Clear Views on Supervised Release from the Seventh Circuit

Terms and Length of Supervision

It can be difficult to find discussions at the appellate level of district court obligations when deciding how to impose length and conditions of supervised release. It can be harder still to force a discussion at all from a district court at sentencing to understand the thought process behind these decisions.

On October 18, 2012 the Seventh Circuit published this short opinion in the case of US v. Quinn No. 12-2260 (7th Cir. Oct. 18, 2012). Its short length is reprinted in its entirety below.

Quinn asked the judge to choose a ten-year term of supervised release. He submitted a forensic psychologist’s evaluation, which concluded that he has a lower than- normal risk of recidivism. He also submitted the testimony that two psychologists (Michael Seto and Richard Wollert) recently had presented to the Sentencing Commission regarding the recidivism rate for persons convicted of child-pornography offenses…. [But] the district judge did not discuss either the length of supervision or the terms that Quinn would be required to follow while under supervision.

The prosecutor has confessed error, and we agree with the prosecutor’s conclusion that a district judge must explain important decisions such as the one at issue here. On remand the judge should consider not only how Quinn’s arguments about recidivism affect the appropriate length of supervised release, but also the interaction between the length and the terms of supervised release. The more onerous the terms, the shorter the period should be. One term of Quinn’s supervised release prevents contact with most minors without advance approval. Quinn has a young child, whom he has never been accused of abusing. Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification.

Our research has turned up only a few decisions that discuss the relation between the terms and length of supervised release. The third circuit has observed that the more onerous the term, the greater the justification required — and that a term can become onerous because of its duration as well as its content…. Rules that allow public officials to regulate family life likewise call for special justification, and lifetime regulatory power is hard to support when the defendant has not been convicted of crimes against his family or other relatives. Other terms of Quinn’s supervised release also may require strong justification when extended for a lifetime.

Although district judges can reduce the length of supervised release, or modify its terms, at any time, 18 U.S.C. §3583(e) — an opportunity that may lead a judge to think that uncertainties at the time of sentencing should be resolved in favor of a long (but reducible) period — still this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments. The judge also should consider the possibility of setting sunset dates for some of the more onerous terms, so that Quinn can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should Quinn relapse.

Take Aways

Most notably in this decision, at least in this bloggers opinion, is the call1 for “sunset dates” on the more onerous terms of supervised release. Naturally, the longer a released inmate spends on supervision without incident, the less restrictive and intrusive the terms of release should be (considering the goal of supervision is re-integration back into the community.

Applause goes to the 7th Circuit for hitting this issue head-on and laying out very simple-to-understand guidance for district courts regarding the imposition of federal supervised release or probation.

Ending Supervised Release Early

Of course, there is no need to ever complete a full term of supervision, as seen in the last paragraph of the opinion above. Trouble is, though most people on federal supervision know that ending supervised release early can be done, most don’t know how and won’t pay a lawyer a ton of money to get it done. The cost can outweigh the benefit.

Fortunately, PCR Consultants (that’s us) have been helping people for the last 3 years accomplish this task on their own, at the fraction of the cost of an attorney doing it for you. All that is necessary is to represent yourself on paper and file a request like this to the supervising court.

Learn more by reading our e-book. Start the process of ending your supervision now by contacting us by e-mail or phone (or our contact submission form) today.

  1. Written by Chief Judge Esterbrook for the 7th Circuit Court of Appeals []

Huge Win for Inmates in Dorsey/Hill Decisions

Fair Sentencing Act of 2010

Crack Cocaine Pipeline Cases Decided by SCOTUS

Its a big day at the United States Supreme Court. Inmates have been waiting for nearly two years for the high court to decide on a Circuit Court split that meant decades in longer sentences for crack cocaine “Pipeline” cases.

Read our prior post on the Hill case and “Pipeline” cases.

The Supreme Court handed down an extremely divided decision today in a 5-4 ruling for the defendants. Below is a quick recap of the issues.

The Fair Sentencing Act of 2010: This law, passed by Congress, lowered the penalties on crack cocaine offenses to be close to those of powder cocaine sentences.

Pending Cases: Defendants whose cases which started before the Fair Sentencing Act of 2010 took effect1, but were sentenced afterwards were sometimes given the new, lower sentences. Some, however, got the older and longer sentences. These cases were in the pipeline when the law took effect.

Most Circuit Courts who decided this issue granted the lower sentences to the Appellants.2 The Seventh (surprise, surprise) and Sixth Circuit3 went the other direction and decided that the older (and “unfair”) sentences were appropriate.

What Happens Now

At this point, all inmates who were charged with crack cocaine offenses before August of 2010, but sentenced afterward need to take a close look at their sentences. If sentenced under old rules, they could be eligible for years in sentence reductions with a simple 3582 motion.

Let Us Help You!

Call us at (480) 382-9287 for a free consultation to find out how we can help you and your incarcerated loved one get sentences reduced.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.

  1. August of 2010 []
  2. See the Third and First Circuit cases []
  3. United States v. Carradine, ___ F.3d ___, No. 08-3220, 2010 WL 3619799, at *4-*5 (6th Cir. Sept. 20, 2010 []

Federal Supervised Release Conditions – Restrictions on Court Discretion

Federal Supervised Release Conditions

Federal supervision is oftentimes misunderstood. What conditions can a court impose and what conditions are too much? This post is intended to clear the fog a bit using a case from Kentucky. This interesting case was decided by the Sixth Circuit Court of Appeals earlier this year. In part, the appeals court threw out a lifetime ban on smart phones.

No iPhone for life? Not unless you have a really good reason!

When it comes to federal supervised release and probation, District Courts have broad discretion in the limitations they can place on defendants.

However, this discretion is not unlimited and sentencing judges must have a valid explanation for why each limitation is imposed. Legally speaking, conditions of supervised release are reviewed by appellate panels for abuse of discretion.1 A sentencing court’s discretion is limited by three standards. Each special condition must:

  1. “[be] reasonably related to the sentencing factors set forth in 18 U.S.C. §3553(a)”;
  2. “involves no greater deprivation of liberty than is reasonably necessary for the purposed set forth in § 3553(a)”; and
  3. “is consistent with any pertinent policy statements issued by the Sentencing Commission.”2

The 6th Circuit Sets Limits on District Courts

In United States v. Inman, the Sixth Circuit held that, even though Inman was a really bad guy, the district court judge went too far with special conditions and imposing a lifetime term of supervision. In plain English, each condition was a lifetime ban on something.

The district court judge set a number of conditions that no one asked for, or talked about at Mr. Inman’s sentencing hearing: he had to submit to mandatory drug testing; to notify the probation office if he is prescribed any medicine; to provide the probation office with all of his financial information; and he can never drink alcohol again, possess or use a device capable of creating pictures or video, or rent a storage facility or post office box.

On review, the appellate court reviewed for plain error. It had to determine if: the district court adequately stated in open court at the time of sentencing its rationale for mandating special conditions of supervised release and whether each condition of supervised release was reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public.

The Kicker

Next comes the big test. Special supervised release conditions must:

“[I]nvolve[] no greater deprivation of liberty than is reasonably necessary to serve the goals of deterrence, protecting the public, and rehabilitating the defendant”3

What This All Means

In basic terms, these limitations mean that a district court judge cannot just impose whatever they please at a sentencing hearing in terms of special supervised release conditions. For a financial crime, requiring the defendant to turn over monthly financials may be imposed legally. However, imposing an alcohol ban on a defendant with no history of substance abuse usually cannot.

If you’d like PCR Consultants to take a look at your terms of supervision and help get rid of supervised release conditions that don’t meet these standards, please give us a call for a free consultation.

Let Us Help You!

Call us at (480) 382-9287 for a free consultation to find out how we can help.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.

  1. United States v. Heidebur, 417 F.3d 1002, 1007 (8th Cir. 2005) []
  2. United States v. Mark, 425 F.3d 505, 507 (8th Cir. 2005), citing 18 U.S.C. §3583; United States v. Boston, 494 F.3d 660, 667 (8th Cir. 2007). []
  3. 18 U.S.C. §3583(d)(1)-(2); United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). Although this is a 6th Circuit case, most circuits have precedent that mirrors this standard. []

Supervised Release Termination Testimonials

Client Satisfaction at its Best

Supervised release termination, or early termination of federal probation, as a major part of what we do here at PCR Consultants. It is important for present and future clients to hear from the ones that came before them. Here is what one client had to say:

“I am extremely happy to tell you that the court has granted [my] motion for termination of supervised release!!! I can’t tell you how happy and grateful I am to you and your team! You did a brilliant job and I am happy to refer you to anyone I know that might need your services.”
– Ben

Ben’s supervised release termination ended 18-months before its natural expiration. His last name and case number have been withheld per his request.

Handling Supervised Release Termination

There is a big landscape of federal law and court decisions that guide judges when making decisions on whether or not to grant a defendant’s request to gain early release from federal supervision. Policy set forth by the US Sentencing Commission adds flavor to Title 18 of the United States Code, which tells judges what they must consider when a request like this comes to their desk.

Then there are studies, papers, data, and re-offense concerns that factor in. Using all these factors, plus a few items from our proprietary “Trick Bag”, PCR Consultants enjoys a very high success rate with clients seeking early termination of their supervised release or probation.

Our Services Work!

Follow the links below for judicial orders in favor of some our successful supervised release termination clients.

Supervision terminated within a week of request! (May 2014)

Supervised Release ended before two full years were served.

Supervised Release cut immediately.

Supervised Release ended over two years early, before half of the term was served!
(Client names redacted to protect privacy)

9th Circuit Restricts Computer Fraud Prosecutions

As reported by The Recorder, the 9th Circuit Court of Appeals has done much to narrow the scope of the Computer Fraud and Abuse Act. In their article about this circuit decision, the Recorder reports that you cannot be criminally prosecuted for checking out Facebook or football scores at work.

“We shouldn’t have to live at the mercy of our local prosecutor”

Below is an excerpt from the original article at law.com:

Don’t worry: it’s not illegal to read this article at work.

In a highly anticipated test of the Computer Fraud and Abuse Act, the U.S. Court of Appeals for the Ninth Circuit construed the law narrowly Tuesday, saying prosecutors can’t use it to go after someone who checks sports scores from a work computer or fibs on Facebook. The 1984 law is an anti-hacking statute, not a tool to make federal criminals of anyone who violates employer computer policies or a website’s terms of service, the en banc panel said in a 9-2 opinion in U.S. v. Nosal, 10-10038.

“The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer,” Chief Judge Alex Kozinski wrote for the majority. “This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.”

In splitting from other circuits and reversing the panel decision, the court said the plain language of the statute prohibiting someone from “exceeding authorized access” to a computer does not extend to violations of use restrictions. The majority said there are other laws the government can use to prosecute someone who steals confidential information, and that a narrow interpretation of the CFAA is necessary because “we shouldn’t have to live at the mercy of our local prosecutor.”

The ruling affirms San Francisco U.S. District Judge Marilyn Hall Patel, who junked five counts in the government’s case against David Nosal. He is the former employee of an executive search firm accused of having colleagues access a confidential database to get information for his new competing business. “Because Nosal’s accomplices had permission to access the company database and obtain the information contained within, the government’s charges fail to meet the element of ‘without authorization, or exceeds authorized access,'” Kozinski wrote.

The court illustrated its point with a series of alarmist scenarios: Under the government’s view of the law, the “short and homely” person’s claim on Craigslist to be tall, dark and handsome could earn the poster a “handsome orange jumpsuit.” Vast numbers of teens who used Google could have been deemed “juvenile delinquents” since until last month the company’s use agreement technically barred minors from using its services.

For the government, the case was not about white lies and people goofing off at work. . Nosal, they argue, was up to no good, and the statute requires an “intent to defraud.” The dissenting judges make that point.

“This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values,” Judge Barry Silverman wrote, with Judge Richard Tallman joining. “It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts.”

Prosecutors have taken an aggressive posture in this case, appealing even when many criminal counts remained intact at the trial level and bringing in a lawyer from Main Justice, Jennifer Ellickson, to argue. Nosal’s appellate counsel Dennis Riordan said in light of that, he expects there to be a push inside the department to file cert. However, he said, the Solicitor General’s office, which makes the call, may think twice about pursuing this particular CFAA case, considering Kozinski’s “very, very powerful and well reasoned opinion.”

It is difficult to imagine why the dissenting opinion here did not see the ‘slippery slope’ of unintended consequences if the en banc decision of the Ninth Circuit were to have gone the other way.

It reminds me of the Supreme Court’s decision in Gonzales v. Raich which didn’t go as well as this case. In Raich, the Supreme Court decided that marijuana grown for legal, personal use inside a California residence could be federally prosecuted as interstate commerce. This may be confusing to the non-lawyer because the represented facts of the case were neither interstate nor commerce.

I am encouraged when I see appellate decisions that actually curtail federal prosecuting authority, rather than expanding them. Kudos to the 9th!

Federal Probation Revocation Hearings

An interesting case out of the Fourth Circuit was brought to my attention by this post by the Federal Criminal Appeals Blog entitled “Just Because It’s A Supervised Release Hearing Doesn’t Mean There Are No Rules.”

As the title suggests, federal probation revocation hearings are far less formal than a criminal trial. In fact, the rules that govern these hearings appear in only one section of the Federal Rules of Criminal Procedure: Rule 32.1. Below is an excerpt from the article.

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison – folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

One big way to mess up is to commit a new crime. The rub is that a person can be violated – and sent back to prison – for committing a new crime, not just for being convicted of committing a new crime.

So, it’s possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn’t show up to mental health treatment, or to meet with his supervising probation officer.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist’s report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, “notwithstanding the objection,” the drug analysis report was “sufficient to support the [heroin] violation alleged.” Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, “in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell’s supervised release].” The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn’t have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn’t require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

We don’t do many posts on revocation hearings here, but the issue is important to both the federal process and our clients. If you have any questions regarding revocation (and especially how to avoid them) please give us a call at (480) 382-9287.

Good Advise for those Entering Federal Prison

In an article posted Thursday by former Missouri state senator Jeff Smith, a set of tips for entering federal prison were laid out.

The article was written to former Illinois Governor Rod Blagojavich on his impending report to federal prison. These tips are seem very remedial to those that have been inside federal prison, they don’t really need saying. However, for those who have never experienced it themselves, the tips are spot-on.

Below are excerpts from the original article from the Chicago Tribune.

After spending a year in federal prison on an obstruction of justice charge stemming from a 2004 congressional campaign violation, I have a few tips for former Illinois Gov. Rod Blagojevich as he heads for prison.

1. As your grandma probably taught you, God gave you two ears, two eyes and one mouth — use them in proportion.

• When you get to prison, listen, watch and learn. You’ll have a hundred questions on your first day and in one month you will know the answer to 90 of them without having to ask and risk looking stupid.

• Don’t ever ask anybody about their crime. If they want to tell you what they did, fine. But you won’t know if they’re telling the truth. And if you ask and strike a nerve with someone, the result may not be pretty.

• Don’t talk about how you got railroaded. So did everyone else.

• Don’t ask anything about anyone’s family; it will be a sore subject with many, especially those who have not seen or heard from their children or ex-wives in years.

• Don’t ever talk about how much time you have. Someone else has more.

2. Embrace your background, but don’t try to be a politician.

• The prison guards and administration will probably resent your presence, as it will mean added scrutiny on prison operations. Your charm will not work on them, so don’t try it. Instead, be as deferential as possible and try to blend in.

• You will have a nickname. It will probably be “Governor.” Accept that, but do so with deep humility.

• As a politician you were known for your gregariousness. But prison isn’t the Loop; not everyone wants to shake your hand. In fact, because of a collective obsession with hygiene and a fear of illness, no one in prison shakes hands — they bump fists. That doesn’t mean you should stroll down the compound fist-bumping dudes on your first day. As a hoops announcer might advise a star player in a big game, don’t press too hard; let the game come to you.

3. Get in the best shape of your life.

• Unlike most people, you are coming to prison in great shape. But you can always be in better shape. Set personal goals — maybe you want to run a marathon in prison; maybe you want to bench press 300 pounds. Working out every day will help pass the time, keep your endorphins pumping and keep you in a better frame of mind.

• Use your knowledge of running to help others lose weight. Inmates can control almost nothing, and since their body is one of the few things they can change, most work assiduously to improve themselves. Going running with others and helping them get in shape may be an effective way to build alliances.

• Play sports, but if your taste runs to contact sports such as basketball, be careful. Some people who have it out for you may exploit the opportunity to try to hurt you on the athletic field and not get in trouble for it.

4. Correspond with anyone who writes you.

5. Forgive your enemies.

6. Don’t complain about how bad your prison job is, and don’t brag about how good it is.

• Try to get a job working in the rec center or as a warehouse clerk, two of the most pleasant jobs in prison. But if you don’t get one, don’t complain about it. Just as is the case in any other environment, no one likes complainers. But in prison, people really don’t like them, because it’s a given that everyone is miserable.

7. Learn something new.

• Read all the books you wanted to read, but never had time. Then read all the ones you should have read, but didn’t want to.

• When the novelty wears off and the people who approach you are doing more than rubbernecking, don’t discount the possibility of making lifelong friends. You will meet some of the most fascinating people you have ever met, from all walks of life. Listen to their stories, and learn from them.

8. Use your unique knowledge and skills to help other inmates.

• Use your legal background to help prisoners who are bringing appeals pro se (representing themselves), but do so quietly so that you aren’t swamped with requests.

9. Don’t snitch, under any circumstances.

• The only people in prison who have it harder than child molesters are snitches. You need to learn how to see things (weapons, illegal drugs, people making hooch, pornography, etc) without seeing them; that is, learn to look away before anyone has seen you see the contraband.

• Stay away from snitches, and in general, watch the company you keep: in prison, you are your car (car = the people you “ride” with).

• If you committed other crimes for which you were not prosecuted, or are plotting any, don’t discuss them. As I’m sure you are now aware, you never know who’s listening.

• Don’t be seen talking to the Cos (correctional officers). Just like you could be cordial to Republicans but not be best friends with them without arousing suspicion among Democrats, you cannot be “friends” with the guards. Sure, there may be gangs and racial/ethnic division among prisoners. But there are really only two teams: inmates versus the prison. When guards try to get you to regale them with stories, resist the impulse to be on stage again. Do not forget this rule.

10. Don’t break prison rules.

• This may seem contradictory. The last rule suggested that you should tolerate prison rule-breaking — and you should. But try not to violate rules yourself.

• Don’t gamble. If you lose, you’ll be in debt and you do not want to be compromised like that. If you win, someone is likely to be very angry and may figure out a way to get his money back — a way that might leave you unrecognizable.

• Don’t “hold” anything someone asks you to hold, even if it looks innocuous; it’s probably got contraband inside of it.

• If you need a hustle to survive (i.e., stealing and selling food from the kitchen, washing and ironing others’ clothes), try not to encroach on someone else’s hustle. Presumably, others will need the stamps (money) more than you. Competition can be fierce.

11. Don’t look for trouble.

• Don’t change the TV channel, especially if women’s track is on, or “Ice Loves Coco.” There is an inscrutable yet stringent seniority-based regime when it comes to TV watching, and your celebrity does not entitle you to alter it in any way.

• Don’t stare.

• There is generally no reason to make eye contact with people unless they say your name.

12 Don’t eat the Snickers.

• You’ll go through orientation. You will be shown a mandatory sexual assault prevention video featuring a guy warning you not to eat the Snickers bar that may be waiting for you on your bed in your cell. (The actor ate the one left under his pillow, unwittingly signaling the predator who left it for him that he was ready and willing.) All the guys watching the video will laugh. But take the video’s message to heart: Don’t accept sweets from anyone.

Good luck, Governor. One day at a time.

Although these tips may not be most applicable with higher security prisons (the writer was a very low security level), the advice still resonates and can be applied with reasonable liberalness.

The 11th Circuit, Fricosu, and the 5th Amendment

Electronic Decryption Orders

As can be read in our previous posts (here and here), a case in Colorado has caught the attention of the nation in its implications on the 5th Amendment to the United States Constitution.

This case touches on the Constitution, fraud, sex offenses, electronic freedoms, and many other incredibly important topics. Yesterday, the 11th Circuit Court of Appeals took up the topic in a separate case (US v. Doe) and disagreed with their own lower court’s mandate to supply unencrypted data for the prosecution. In Doe, the defendant was ordered to produce an unencrypted version of his hard drive(s). Doe refused to comply. From In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011:

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED.

Back Story

In Colorado, a defendant (Fricosu) may or may not have incriminating evidence on her laptop hard drive that was seized by authorities. The government asked for, and was granted, an order forcing Fricosu to produce a decrypted copy of that hard drive. Fricosu appealed, saying that doing so violates her 5th Amendment protections against self-incrimination. The appellate court refused to rule until the case was finished in the lower court.

The order forcing Fricosu to give over potentially incriminating evidence, and other similar orders from around the country, has troubling implications on the 5th Amendment in the new, digital world.

…and even further back…

In Fricosu, the presiding judge relied heavily upon the very limited precedents from around the country. Every one of these precedents were from child pornography cases where the courts didn’t seem to mind infringing on 5th Amendment protections, so long as sex offenders were the losers.

As with all history, equal protection exists for everybody, and infringing on one (hated) groups rights will eventually spill over onto the rest of the population.

Equal Protection

It may be hard to do, and sometimes even harder to stomach, but protecting the rights of the least popular citizens of any society is vital. This effort prevents [G]overnment from “taking a mile” for every inch of leeway given to it.

Kudos to the 11th Circuit for making this decision. Let us all hope that, regardless of coexisting immunity given to defendants, the 10th Circuit will follow suit and not allow its lower courts to be so cavalier with the 5th Amendment.

Update: Fricosu, The 10th Circuit, and the 5th Amendment

U.S. v. Fricosu

2/23/12 – As we previously discussed in this post, the government wants to force the defendant in the above-titled case to turn over an unencrypted hard drive that may or may not have incriminating evidence in it. The district judge granted the governments motion to force the defendant to supply the hard drive. This decision was appealed to the 10th Circuit Court of Appeals, who refused to rule.

Note: Demanding an actual password violates the 5th Amendment protections. The presiding judge in Colorado side-stepped this issue by not requiring Fricosu to give up her password but, instead, requiring her to produce the decrypted hard drive by using her password.

Because the appeals court chose to let the case run its course in the lower court before allowing the issue here to be raised on appeal, the ruling stands and Fricosu has until Monday to turn over the unencrypted version (read: a copy) of her laptop hard drive.

The Future

This case has frightening implications on the 5th Amendment to the U.S. Constitution. The process will get rocky. Fricosu can refuse to produce the hard drive1 and face contempt charges,2, or she can comply and face conviction if the incriminating material that the prosecution believes is on the hard drive is actually there.

If she complies and is convicted3, only then can she appeal her conviction to the 10th Circuit Court of Appeals to challenge the order to produce the hard drive that directly led to her conviction.

Updates will be posted as they come in!

  1. If she is able to. Her defense attorney says she may not have the capabilities to even comply with the order []
  2. Under rule 42 of the Federal Rules of Criminal Procedure []
  3. Where that conviction is predicated primarily upon the evidence from the unencrypted hard drive []

Notable Federal Sentencing, Crime and Defense News

The last few weeks has held a substantial amount of news concerning federal crime, sentencing, and defense news. Although there is not going to be an in-depth discussion on each topic here today, links are provided to source materials or detailed discussions and analyses.

U.S. Supreme Court

After a long break, the Supreme Court is back in action. Here is an overview of the recent decisions:

Howes v. Fields: The Sixth Circuit held that an inmate who is questions about events outside of prison are ‘in custody’ for Miranda purposes. The Supreme Court reverses the Circuit ruling, stating “The Sixth Circuit’s categorical rule—that imprisonment, questioning in private, and questioning about events in the outside worldcreate a custodial situation for Miranda purposes—is simply wrong.”

Kawashima v. Holder: The Ninth Circuit ruling that aiding and assisting in the preparation of a false tax return is an aggravated felony if the government’s revenue loss is greater than $10,000 is affirmed. “Convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i).”

Wetzel v. Lambert: This case involves AEDPA questions concerning habeas relief for a defendant on death row in Pennsylvania. The Supreme Court, in a per curiam opinion, vacated the Third Circuit, and remanded. Explanation of habeas relief under AEDPA is quoted from the opinion below.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court’s adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, a clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. 2254(d)(1).

United States Sentencing Commission

Last week, the USSC held two important and public hearings regarding sentencing policy in the federal justice system. One focused on broad sentencing options, entitled “Federal Sentencing Options after Booker” (written testimonies). From professor Berman over at Sentencing Law and Policy:

There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considered.

The second hearing addressed the sentencing guidelines concerning child pornography offenses (written testimonies). This area is functioning so poorly that defendants who possess visual depictions of child sexual abuse are often punished more severely than the perpetrators of the sex abuse that is depicted. In some cases, possessors of child pornography are sentenced to longer incarceration terms than rapists and murderers.1

Sentencing and Crime Articles

Here are a few of the many academic and opinion articles published on federal criminal law.

The High Cost of Prisons: Using Scarce Resources Wisely.

“The Gray Box”: An Investigation of Solitary Confinement in U.S. Prisons.

Round-Up

There is a lot of information to take in here, as there is always a lot of discussion about federal criminal practice and policy. Not many changes are made from Congress or even the Sentencing Commission, but the pendulum is swinging away from locking up everybody possible. Talk turns into action, it just seems to take decades to do so (see the obvious problems with the Cocaine v. Crack Cocaine sentence disparity).

Check back often for more on federal cases, sentencing policy, and discussions on how consultants can help you use this information to your advantage!

  1. Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines. Troy Stabenow (2009) at 38. “Child pornography is a pernicious evil. However, the hysteria associated with public events such as the Dateline “To Catch a Predator” series is not a sound basis for sentencing. Since 1991, the punishment for these offenses has been dramatically and irrationally increased, to the point where today rapists, murderers, and molesters receive lesser sentences than would a man who swaps a few, thirty-year old, pictures of child pornography that were produced before the defendant was even born.” []