Tsarnaev Verdict – Guilty Counts Explained

Boston Bomber Guilty on all Counts

April 8, 2015 – The trial of Boston Bomber suspect Dzhokhar Tsarnaev has been closely watched by the nation, and around the world. Although the trial itself is well outside the purview of what we do here, federal criminal law is all we focus on (in general).

Bomber Tsarnaev convicted

Boston Bomber

By now, most interested Americans know that a jury returned a verdict of “guilty” today on all 30 counts against Tsarnaev.1 What is uncommon, and clumsily explained by the main media outlets reporting on it, are the specifics of the charges, and what penalties each carry.

Tsarnaev caused the deaths of four innocent people: Krystle Marie Campbell,2 Officer Sean Collier,3 Lingzi Lu,4 and Martin Richard. (Richard’s family page regarding information on him and the rest of the Richard family can be found on Tumblr here)) The sections below are an exhaustive list of the charges against the Boston Bomber, Dzhokhar Tsarnaev, short details directly from the federal indictment against him, and the penalties that coincide with them.

A quick note: Under the penalties below, when “any term of years” of prison time is allowed by law, the United States Sentencing Guidelines Manual. is used to calculate those years. “Any term of years” doesn’t mean the judge can give as little or as much as he wants with limitless discretion.5

Charges Against Tsarnaev

 

Count 1: Conspiracy to Use a Weapon of Mass Destruction Resulting in Death

A violation of 18 USC §2332a(a)(2)

Paragraph 11 of the federal indictment6 starts the detailed description of the acts that constitute a conspiracy between Dzhokhar and his brother, Tamerlan. This conspiracy resulted in the death of four people, a run from law enforcement, and a shootout that ended in his capture. Here’s a short quote from the indictment document.

[They] “knowingly conspired…to use a weapon of mass destruction, namely, a destructive device as defined by [18 USC §921] without lawful authority, against a person and property in the United States…”

Penalties: A defendant convicted of a violation of this statute “shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.”

Count 2: Use of a Weapon of Mass Destruction Resulting in Death; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

Paragraph 41 of the indictment against Tsarnaev cites this statute as his role in aiding his now-deceased brother to carry out the bombing. 18 USC §2 is a general statute that details the acts that constitute aiding and abetting any crime under federal criminal law.

“…DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev produced explosive bombs from pressure cookers, low explosive powder, ball bearings, nails, adhesives, electronic components, and other materials, then Tamerlan Tsarnaev, aided and abetted by DZHOKHAR A. TSARNAEV, placed and detonated one such bomb…in the vicinity of 671 Boylston Street in Boston Massachusetts, which resulted in a premature end to the Boston Marathon and damage to Marathon Sports and other property.”

Penalties: Aiding and Abetting for Count 1 carries the same penalties. A prison term up to life, and eligibility for the death penalty.

Count 3: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

Violations of 18 USC §924 (penalties in (j)); 18 USC §2

Paragraph 44 begins the description of how Tsarnaev used a firearm in furtherance of a crime of violence. The “firearm” here is the bomb he used, not a gun. The result of death for this count is the murder of Krystle Marie Campbell.

Penalties: Any person who is convicted of using a firearm during a crime of violence and causes death can “be punished by death or by imprisonment for any term of years or for life.”

Count 4: Use of a Weapon of Mass Destruction Resulting in Death; Aiding and Abetting

Identical to count 2, except charged separately for the murders of Lingzi Lu and Martin Richard. Penalties are the same as count 3, namely, prison time or death.

Count 5: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

Identical to count 4, except for the use of the second bomb, which caused the murders of Martin Richard and Lingzi Lu. Penalties are prison time or death.

Count 6: Conspiracy to Bomb a Place of Public Use Resulting in Death

A violation of 18 USC §2332f(a)(1)

Paragraph 57 of the indictment changes the scope and angle of the charges. The title of this section of §2332f is “Bombings of places of public use, government facilities, public transportation systems and infrastructure facilities.” The resulting death in this charge refers to all four murder victims.

Penalties: A defendant convicted of a violation of this statute “shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.”

Count 7: Bombing of a Place of Public Use Resulting in Death; Aiding and Abetting

A violation of 18 USC §2332f(a)(1) from count 6, with 18 USC §2 added

A short section of the indictment charging Tsarnaev of aiding his brother in the furtherance of the conspiracy to bomb a public place. Penalties for this charge again include the death penalty.

Counts 8 & 13: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

A violation of 18 USC §924 and 18 USC §2

This is a 924 charge specifically for the death of Kristal Marie Campbell for bombs number 1 and 2.

Count 9: Bombing of a Place of Public Use Resulting in Death; Aiding and Abetting

A violation of 18 USC §2332f(a)(1) from count 6, with 18 USC §2 added

This is a 2332f charge specifically for the deaths of Lingzi Lu and Martin Richard, using bomb #2.

Counts 10 & 15: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

A violation of 18 USC §924 and 18 USC §2

This is a 924 charge specifically for the deaths of Lingzi Lu and Martin Richard, using bomb #2.

Counts 11 & 12: Conspiracy to Maliciously Destroy Property Resulting in Personal Injury or Death

A Violation of 18 USC §844(i) and (n)

From paragraph 81 of the indictment:

“The Grand Jury…charges that the offense resulted in personal injury to at least one person; specifically it resulted in personal injury to many persons who were participating in, viewing, and passing by the Boston Marathon.”

“The Grand Jury further charges that the offense…resulted in the deaths of Krystle Marie Campbell, Officer Sean Collier, Lingzi Lu, and Martin Richard”

Penalties under subsection (i):

“…if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment”

Count 14: Malicious Destruction of Property Resulting in Personal Injury and Death; Aiding and Abetting

In Violation of 18 USC §844(i) and 18 USC §2

Similar to counts 11 & 12, but for the actions, not the conspiracy to commit those actions. Penalties remain the same, as above.

Counts 16 -18: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

A violation of 18 USC §924 and 18 USC §2

This is a 924 charge specifically for the death of Officer Sean Collier for a Ruger P95 9mm semiautomatic handgun. Two of these charges latch to the conspiracy to create and place the two bombs, and 17 is specifically for the possession and use of the Ruger.

Penalties remain prison time or death.

Count 19: Carjacking Resulting in Serious Bodily Injury; Aiding and Abetting

A violation of 18 USC §2119(2) and 18 USC §2

From paragraph 117 of the indictment, Tsarnaev:

“…with the intent to cause death and serious bodily harm, knowingly took and attempted to take from the person and presence of D.M., by force and violence, and by intimidation, a motor vehicle that had been transported, shipped, and received in interstate and foreign commerce, that is, a 2013 Mercedes ML350 bearing Massachusetts license plate 137N71 and VIN 4JGDA5HB1DA193885.”

This charge specified the theft of victim “D.M.” who remains anonymous in the indictment, and the injury caused to Officer Richard Donohue.

Penalties for this charge include prison time, calculated by the sentencing guidelines, but a maximum of 25 years in prison.

Count 20: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count specifies Tsarnaev’s carrying and brandishing of his Ruger handgun during the carjacking from Count 19, that resulted in the injury to Officer Richard Donohue.

Penalties for this count carry a minimum sentence of 7 years in federal prison.

Count 21: Interference with Comerce by Threats and Violence; Aiding and Abbetting

A violation of 18 USC §1951 and 18 USC §2

From paragraph 123 of the indictment, Tsarnaev,

“…committed a robbery that in some way and degree obstructed, delayed, and affected commerce, to wit, DZHOKHAR A. TSARNAEV unlawfully took and obtained personal property consisting of eight hundred dollars from the person and in the presence of D.M., against his will, by means of actual and threatened force, violence and fear of injury, immediate and future, to his person and property, by forcing D.M. to provide his Bank of America Automatic Teller Machine (“ATM”) debit card and personal identification number (“PIN”) to DZHOKHAR A. TSARNAEV, who then and there used the ATM card and PIN to obtain eight hundred dollars from the Bank of America branch located at 39 Main Street in Watertown, Massachusetts.”

This charge carries no minimum prison sentence, but a maximum of 20 years in prison.

Count 22: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This charge was levied from the actions detailed in count 21, while Tsarnaev was in possession and brandishing his Ruger.

As in Count 20, the minimum penalty for this charge is 7 year in prison.

Count 23: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

This details the construction of another bomb and its use against pursuing law enforcement…

“against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses, as the Governor of Massachusetts and other public officials asked residents in Watertown, Boston, and elsewhere in Massachusetts to assist law enforcement by remaining indoors while the officers attempted to apprehend DZHOKHAR A. TSARNAEV.”

Penalties for this charge, again, include a prison term (up to and including life) and the death penalty,

Count 24: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

Tsarnaev used his third bomb while brandishing both it and the Ruger while law enforcement was in pursuit.

Punishment for this charge is another 7 years, minimum.

Count 25: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

“DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev used an explosive device constructed from a section of pipe, low explosive powder, and other materials (“pipe Bomb #1″) against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses…”

This bomb was a pipe bomb used against law enforcement, not a pressure cooker bomb, like in earlier (single-digit) counts. Different bomb, different location. Same penalties.

Count 26: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count was charged because of the possession and brandishing, and this time for discharging, of the Ruger and bomb #1 in count 25.

Because the firearm(s) was/were possessed, brandished, and discharged, the minimum penalty for this charge is 10 years in prison with no maximum.

Count 27: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

“DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev used an explosive device constructed from a section of pipe, low explosive powder, and other materials (“pipe Bomb #2″) against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses…”

This is a second pipe bomb, but the same base charge as count 25. Same penalties.

Count 28: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count was charged because of the possession and brandishing, and this time for discharging, of the Ruger and pipe bomb #2 in count 27.

Because the firearm(s) was/were possessed, brandished, and discharged, the minimum penalty for this charge is 10 years in prison with no maximum.

Count 29: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

“DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev used an explosive device constructed from a section of pipe, low explosive powder, and other materials (“pipe Bomb #3″) against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses…”

This is a third pipe bomb, but the same base charge as count 25 and 27. Same penalties.

Count 30: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count was charged because of the possession and brandishing, and this time for discharging, of the Ruger and pipe bomb #3 in count 29.

Because the firearm(s) was/were possessed, brandished, and discharged, the minimum penalty for this charge is 10 years in prison with no maximum.

  1. this will open the door to an entirely new type of trial. A jury decision on imposing the federal death penalty []
  2. view her tribute facebook page here []
  3. view his tribute facebook page here []
  4. view her tribute facebook page here []
  5. Federal judges are subject to a standard called “reasonableness” []
  6. docket document #58 []

Criminal Defense Booms When Everything’s a Crime

Criminal Defense – A System of Perpetuation

Criminal defense is a lucrative business. Lawyers spend years in a prosecutor or public defender’s office working long hours for low pay (and huge case-loads) just to get the experience in the trenches of criminal trials to finally switch to private practice. That’s where the real money is.

Many people realize that the American system of criminal justice is badly broken, and the criminal defense industry along with it. Ever wonder why defense attorneys don’t

Criminal Defense boom

“I can get you a plea for only 3 years in prison!”spend big bucks for lobbyists to change the laws that ensnare so many of their clients? Because that would mean fewer paying clients.

Did you know that Correctional Officer’s unions pay top dollar for lobbyists to get harsh punishment laws passed like California’s now-infamous “Three Strikes” law. Laws like this mean more jobs and more union dues.

Criminal defense is lucrative, so less criminal defendants means less money. On the other side of sentencing, less inmates means few correctional officer jobs.  The system is designed to have a continual flow of criminal defendants and inmates to feed it.

Is Everything a Crime Now?

As sarcastic as the titles of this section may seem, America is really becoming a society that is ciminalizing everything. There was a book published a few years ago titled, “Three Felonies a Day” by Harvey Silverglate, and recently we’ve been following @CrimADay on Twitter.

We’ve all seen the online galleries detailing whacky laws in different states. But what about real laws that carry real prison time, and are enforced? Here are a few:

  • 16 U.S.C. §§45e, 60 & 62 make it a federal crime to carry around a dead bird in Yosemite National Park.
  • 40 U.S.C. §§5014(d), 5109(b) & 2 U.S.C. §1963 make it a federal crime to use the US Capitol Grounds as a playground and injure the grass.
  • 18 U.S.C. §1701 makes it a federal crime to slow down a mailman.

In an article entitled The Crimes of the Century, Matt Kaiser details a recent case that shows that these aren’t just whacky laws that don’t get enforced.

As an example, let us consider a recent case from the Western District of Pennsylvania.

According to a recent press release from that office, a woman was indicted for theft of United States Mail. (Because it seems awfully mean to make her more Google-able, I’m not going to use her name here.)

Apparently, she looted a greeting card that was being sent to someone in Cranberry Township.

The article goes on to describe the prosecution of this crime, that resulted in the theft of two crisp $20 bills. Maximum penalty? 5 years and up to a $250k fine. Over $40. How much has the government already spent prosecuting this case? How much has she paid her attorney for her criminal defense? Who knows…

The Bigger Picture

When everything can be made criminal, two things happen. First, prosecutors can prosecute anybody and begin to do so selectively. This means that prosecutors could target political enemies, and with absolute power comes absolute corruption (eventually). Another effect from the fallout of this is the booming criminal defense industry, feeding lawyers to strive for more clients. That leads to the second point.

Second, the class system evolves from this. Lawyers and workers inside the criminal justice system, and civilians. Have you ever noticed how many politicians are also lawyers? Those that benefit from the laws are making them!

 

More Sentence Commutations By Obama This Week

Sentence Commutations for Drug Offenders

Obama: Don't be Stingy with Sentence Commutations

Obama is stingy with sentence commutations

Its a sad fact that Obama has pardoned and commuted less sentences in his presidency than any other president in modern American history. In a positive recent action, Obama issued 22 sentence commutations to federal inmates serving time for drug-related crimes.

These 22 sentence commutations nearly double the number of these actions that he took in the first three-quarters of his presidency. In an article from The Atlantic, snarkily titled, “Obama Offers Commutations to 22 of 209,155 Federal Prisoners,” David A. Graham delves into the good and bad news surrounding these commutations.

Here’s How that article gets going:

For opponents of the War on Drugs—a group that seems to be growing—and those who think the U.S. incarcerates too many people, Tuesday brought some good news and bad news.

The Good News: President Obama has announced that he’s issuing commutations to 22 individuals. They all share convictions for drug offenses; eight would have died in prison if not for clemency.

The Bad News: As The Huffington Post notes, that more than doubles the number of commutations and pardons Obama has issued through the first three-quarters of his presidency. As my colleague Matt Ford noted in December, Obama has been stingy with his mercy, even by the standard of recent presidents, who have used their power more infrequently (though George W. Bush issued only 11 commutations over two terms). Ron Fournier also wrote an excellent analysis of Obama’s pardons in 2013.

Commutations versus Pardons

Sometimes these two words get used interchangeably, and their meanings get lost, so lets clarify. A presidential pardon comes to ex-cons who are out of prison and want their crimes wiped off their criminal record. Pardons usually come at the end of a president’s term to wealthy donors who have no other criminal history besides the one federal conviction to which the pardon is being requested. Translation: pardons are for free men who want to get rid of their criminal record.

Commutations are a different animal. Sentence commutations don’t take away the underlying conviction, it only erases the remaining sentence so an inmate can go free immediately. The 22 people who received sentence commutations on Tuesday would have already been free had they been sentenced under current sentencing guidelines, so these commutations aren’t controversial at all.

A Step in the Right Direction

Obama is to be applauded for his actions, while still encouraged to do more. As the title of the Atlantic article points out, over 200k inmates are still incarcerated in the federal Bureau of Prisons. Considering America has about 5% of the world’s total population, but 25% of the world’s prison population, Obama could do much more to leverage his pardon and commutation power to affect a lot of change.

Sentence Commutations are a good start, though.

Marijuana Legalization, Coram Nobis, and Federal Felonies

Legalized Pot

An interesting question arose for PCR Consultants the other day. With the growing trend the United States these days to legalize pot, what would happen if the federal government actually gave up the Weed branch of its War on Drugs.

Plenty of people believe that locking up citizens in the US for simple Marijuana possession, especially non-violent offenders, is a waste of taxpayer money. Federal felonies can lock up these offenders for decades, given a sufficiently long rap-sheets to justify large sentencing enhancements.

The landscape of Marijuana legalization has changed drastically over the last few years. In 2010, California nearly passed a ballot measure that would have decriminalized normal possession of consumable Cannabis. From SF Weekly writer Chris Roberts:

Buoyed by Oaksterdam University founder Richard Lee’s cash and energy, Proposition 19 — which would have legalized possession of up to an ounce of pot for adults 21 and over, and allowed cultivation of small gardens — lost in November 2010. It garnered a historic 4.6 million votes, or 46.2 percent of ballots cast. Following the loss, Lee declared on election night that legalization was inevitable, and that legalization would return in 2012 “stronger than ever” with a new ballot measure.1

What would happen, then, if pot was legalized? Would non-violent federal felonies for Marijuana crimes be erased, and the offenders relieved of their weed-based criminal record?

Maybe, but then again maybe not.

United States v. Skilling

To explore this issue further, we look at Honest Services Fraud and CEO-turned-convict Jeffrey Skilling. What, you may be wondering, does a high-profile-former-Enron-CEO have to do with weed?

Skilling took his federal felony to the US Supreme Court, who decided that some of what Skilling did was not actually a crime. This was a groundbreaking restriction on the application of Honest Services Fraud, and enough to call into question plenty of felonies that stood upon a broader definition of this type of fraud. In effect, many inmates were incarcerated for what may not be a crime any longer.

One of Illinois’ incarcerated former governors2 seized upon the Skilling decision to try and spring him from federal prison. Crime in the Suites reports on this (unsuccessful) attempt:

The Supreme Court’s June decision in United States v. Skilling doesn’t give former Illinois Gov. George Ryan a “get out of jail free” card, a U.S. district judge has ruled.

Last August, Ryan filed a petition under 28 U.S.C. 2255, which allows a federal prisoner to challenge his conviction and try to have it set aside if it was imposed in violation of law. His lawyers pointed out that Skilling made a substantial change in federal fraud law, rejecting the concept of “honest services” fraud in cases other than “paradigmatic cases of bribes and kickbacks.”

Judge Pallmeyer, in a detailed 59-page opinion, turned aside all of Ryan’s arguments. The “conduct for which [Ryan] was convicted – steering contracts, leases, and other governmental benefits in exchange for private gain – was well-recognized before his conviction as conduct that falls into the ‘solid core’ of honest services fraud,” the judge wrote, noting that this conduct was exactly what the Supreme Court said in Skilling was the “proper target” of the “honest services” law.

Coram Nobis

On the other hand, if what you did falls exactly under Skilling, you have a case. Nicholas Panarella was convicted of exactly the type of crime that the Skilling ruling said was no longer criminal. Matt Mangino reported on that case this way:

U.S. District Judge Mary A. McLaughlin ruled that Nicholas Panarella, Jr., convicted in a political corruption scheme, is entitled to a “writ of error coram nobis” to vacate his conviction based on an honest services wire fraud scheme, according to The Legal Intelligencer.

Judge McLaughlin ruled that Panarella’s conviction is no longer valid in light of the U.S. Supreme Court’s 2010 ruling in Skilling v. Untied States, which significantly narrowed the scope of the honest-services-fraud statute.

“Where a person is convicted and punished for conduct that is not a crime, such circumstances constitute the sort of fundamental error that may warrant coram nobis relief,” McLaughlin wrote.

McLaughlin said there was “no dispute that Panarella was charged solely with the undisclosed self-dealing theory that was invalidated by Skilling”, reported the Intelligencer. As a result, Panarella’s conviction “was predicated solely on conduct that is no longer a crime.”

What it all Means

In one case above, the underlying conduct of former Governor Ryan did not become lawful from the Skilling ruling. In the other, the Writ of Error Coram Nobis was used successfully when the underlying conduct of that person was declared “not illegal”.

So many federal felonies are out there for Marijuana that there is no one-size-fits-all answer to the question posed at the beginning of this article. If Marijuana is de-criminalized at the federal level, a great many federal prisoners could be eligible for having their convictions thrown out

  1. Marijuana Legalization Effort Fails in California, Thanks to Money and the Feds []
  2. and there are two: Ryan and Blagojevich []

How Often Does Your Federal Probation Officer Visit?

How often your federal probation officer visits is an important question for all persons under the supervision of the United States Probation Office (USPO). This small piece of information is very helpful when considering a request for early release from federal probation (or federal supervised release).1

Levels of Supervision

Each federal district has a large amount of discretion over local USPO policy. For this reason, the treatment of probationers and supervisees can vary widely. However, because of the policy set forth in Monograph 109 (available here), much of how those under federal supervision are treated remains similar everywhere.

Generally, when an inmate of the federal Bureau of Prisons (BOP) is released from custody, that inmate goes to a halfway house. Once their time in the halfway house is finished, a term of supervised release begins. Initially the level of supervision on the outset is the highest it will be for the supervisee. This includes residential visits from the PO to approve housing, and a visit or two to the supervisee’s job site to verify employment.

Monthly in-person visits from a PO are common in the first months of supervision. After a year or so (maybe even sooner) those visits become more infrequent. This signifies a change in “Supervision Intensity” or some such phrase as used by the local USPO. A supervisee will rarely hear of the internal policy or paperwork involved in the levels of supervision, but the intensity by which the supervision occurs can be easily observed.

Different districts have different names and levels of supervision, but this observation is important! Read on to find out why…

Why You Should Care

There are a lot of reasons to want to get off of federal supervision as fast as possible, and those will be covered in a later post. How often you see your probation officer is discussed above and illuminates information that is important to this cause. Why, you ask?

This descending intensity of supervision is an indicator that the USPO is less interested in a supervisee. Less interest means they believe that there is less of a threat to society posed by the supervisee. That means the USPO is much less likely to stand in the way of a bid to get off of supervision early. If the USPO isn’t standing in the way, the judge is much more likely to grant the request.

This is a great thing! Paying attention to the amount of attention you are getting from your federal probation officer makes you better informed for your request for early termination. Early termination is freedom, and freedom is priceless!

  1. There is little difference between federal supervised release and federal probation. In short, if a federal defendant is sentenced to prison, they will enter a term of supervised release upon completion of that sentence. Conversely, if the defendant was sentenced to no prison time, they will be considered on probation. The supervising officers are the same for both and there is almost no difference, legally, between the two. []

Learn from the Small Cases

In a new article from The Crime Report, taken from a NY Times article, small cases involving first-time offenders give big lessons to learn. The article is long, but has some great tidbits that all American’s can learn from. It get started this way:

Anthony, a 28 year-old African-American school bus driver with no criminal record, is in the passenger seat of a friend’s car when the police pull it over for a burned-out brake light. The cops search the car, and they find a pipe with marijuana residue in the console. In New York, simple possession of marijuana leads only to a civil violation, but the police describe this pipe as being “open to public view”— so they arrest both men and bump the charges up to misdemeanors.

Because of that charge, Anthony is automatically and immediately suspended from the job he has held for seven years, pending the disposition of the case.

And later it goes on to discuss why the prosecutor maintained the criminal charge, versus deflating it to a civil penalty. One year free and clear of crime was the first offer the prosecutor put forward in order to drop the misdemeanor charge. Anthony balked, and that was taken down to 90 days. That’s still three months without a paycheck. Anthony balked again and the case was rescheduled for hearing in another month. Anthony is unemployed until then.

The article continues:

We tend to think that the job of a conscientious justice professional is to protect a presumptively safe system from dishonest, lazy, or incompetent fellow humans. But in Anthony’s case none of the humans violated the rules. No one likes the outcome, but everyone did his or her individual job as they’d been taught to do it.

Does that mean no one is responsible? Safety experts in aviation, medicine, and other fields would say everyone is responsible.

The cops made the stop and wrote the “public view” application; the prosecutors “papered” the case and refused to throw out the misdemeanor; the defense failed to find a way to make the questionable basis for the charge count for something; the judge took the path of least resistance and gave the thing a new date.

All the while Anthony is out of a job, on the unemployment lines, and absorbing resources from the system rather than adding to them. First-time offenders often don’t do what is required to make situations like this better for them because the system just rolls over them in a cacophony of lethargy and apathy. Learn how to avoid mistakes first timers make to avoid looking at the unemployment line or worse.

Visit the First-Time-Offender website and read up on protecting yourself from becoming just another story.

Prosecutors and Bullying

The title of this post comes from the new essay, “Threats and Bullying by Prosecutors” by Bennett L. Gershman, a law professor at Pace University. The essay, available for free right here, is definitely worth a full read at only 19 pages, but below I will take a moment to highlight some of the sections and ways Professor Gershman deconstructs the ways prosecutors bully and threaten defendants. It starts out this way:

[Prosecutors] have been described as “virtuous,” “prudent,” “ethical,” “good,” “unique,” and “gamesmen.” But there is one persona that seems to have eluded characterization and commentary: the prosecutor as a bully. In fact, one of the most prominent features of U.S. prosecutors is their ability to threaten, intimidate, and embarrass anyone – defendants, witnesses, lawyers – without any accountability or apology. This is the conduct of a bully.

On Intimidating Grand Jury Witnesses

A state senator’s chief of staff is called in to testify against his boss. He doesn’t want to testify, but is granted immunity and told his refusal to testify can be punished with contempt, and lying is perjury. The witness says he can’t remember a meeting between his boss and a wealthy real estate developer…

The prosecutor, in an extremely agitated tone of voice exclaims: “You know you are lying. Don’t insult this grand jury. You’ll be in jail in a heartbeat unless you tell the truth. You’ll be finished. You will never work again.”
Are the prosecutor’s threats a legitimate exercise of prosecutorial power? Do these threats enhance or degrade the prosecutor’s ethical duty to serve justice?

More Highlights

Gershman goes on to highlight prosecutorial conduct in coercing guilty pleas, attacking defense experts, bullying defense witnesses (and even their own prosecution witnesses), compelling waiver of civil rights claims, retaliation, demagoguery, shaming, and coercing corporate cooperation.

Look for future posts highlighting more sections of this important essay. Any first-time offender will learn quickly how true this information is. He or she will feel bullied and coerced by the prosecuting attorney and wonder how this is part of the legal system they’ve been taught to trust. A fantastic guide for all first time offenders can be found at the first-time-offender website, which hosts the ultimate resource for anybody facing their first charge.

Opportunity After Federal Prison

The United States Attorney for the District of New Jersey had some interesting comments about community release after incarceration. Normally, the American standard of criminal justice involves putting away the bad guys. After that, the narrative seems to stop.

Unfortunately for that narrative, and fortunately for defendants and inmates, nearly everybody that goes to prison gets release. What happens then? Most don’t know.

In early July, 2014 the United States Sentencing Commission released and confirmed their new drug guidelines that will not only make drug sentences shorter, but apply them retroactively (eventually)1.

Below is an excerpt from an opinion article written by the above-mentioned US Attorney regarding opportunities for inmates after they get released, but the entire piece entitled “Ex offenders get time, now they need opportunity” is worth a full read.

Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.

But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.

Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.

A staggering number don’t succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.

This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.

Prison alone isn’t enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney’s Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the “ReNew” program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.

They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program’s efficacy.

This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity….

Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.

But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you….

One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.

  1. The Sentencing Commission is using a phased and delayed approach to actually releasing inmates early from federal prison []

Hilarity in a Federal Probation Revocation Hearing

“After violating the terms of his supervised release, Appellant was sentenced to prison and an additional period of supervised release, including special conditions. The Fifth Circuit found that the district court abused its discretion by imposing the special condition without demonstrating that the condition was reasonably related to statutory factors.”

The above quote comes from a federal probation revocation hearing, published online over at the Federal Criminal Appeals Blog, and is part of a larger (sometimes humorous) story of a man named Sammy Salazar (US v. Salazar, 5th Cir 2014). Mr. Salazar was serving a 10-year suspended sentence for third degree sexual abuse when he failed to register as a sex offender and earned himself a new felony.

Time served, plus fifteen (15) years of supervised release with a bunch of special conditions on his supervision. He appealed those special conditions and got a bunch removed.1

Later, Mr. Salazar assaulted somebody in his family2 and got his supervision revoked: prison for 12 months and 14 years of supervision.  Again along with a bunch of special conditions of supervision.

Defense attorney objected, and led to the funniest written exchange between judge and lawyer I’ve seen in a long time:

Judge : Counsel, I’m aware that this is what went up on appeal because they weren’t written at the time of the sentence. This is not the original sentence. This is a new sentence on revocation. I am adding these conditions. I may do so under the terms of the supervised release and a revocation. So these are additional conditions that I am imposing on the revocation.

Saad: Then Your Honor, we would object and make a new objection that they’re overly burdensome and …

Jude: Overruled, counselor.

Saad: …and…

Judge: Overruled.

Saad: Thank you, Your Honor.

Judge: Overruled.

The defense attorney pissed the judge off to the point where defense’s GRATITUDE was overruled. Well done counselor.

  1. Removal of these special conditions wasn’t because Salazar didn’t need them, or deserve them, it was simply because the judge ordered only a few of these special conditions out loud in court. The rest of the conditions were snuck in outside of oral orders and were thrown out by the Appeals Court. []
  2. without a doubt, Mr. Salazar isn’t a man I want to get to know. Most times, important decisions are made and important precedents are set because of very unlikeable characters such as Salazar []

A Good Week For Federal Probation Termination

The Feeling of Freedom after federal probation termination

Here at PCR Consultants we periodically like to share our success stories with readers and future clients. Since the launch of our Federal Supervision Release services, we have seen a large increase in the number of visitors seeking federal probation termination (that’s the official term for early release from federal probation) and a lot of their successes are coming in.

In the week of March 11-17th, 2013 two such success stories came to us back-to-back. Their release dates are over three weeks apart, but we heard the news last week. With the permission of the clients, we’ve published one testimonial and both of their release orders below. (Names and case numbers are redacted per client request).

Successes

These are just the first few:

Our first client was one of the first to sign up and use our online document services to prepare his Motion to Terminate Supervised Release. His motion was filed on 12/3/12, termination order was issued on 1/18/13. That is 46 days from filing to early termination of federal supervised release.

For those that keep track, he served just over 23 out of 48 months on supervision. Its great news when we see clients release before even serving half their term! Take a look at his release order.

Our second client success story of the week petitioned outside of her supervisory district because court oversight was never transferred to where she lived and was supervised. She served 41 months out of 48, and was released on 2/13/13 (docketed filing date not specified on record). Take a look at her release order.

She even supplied a testimonial, which she has allowed us to publish as well:

“My name is [withheld] & I am writing to say thanks for your assistance on my Motion for Early Termination of Supervised Release. I talked to & worked a lot with Eric prior to obtaining PCR’s assistance as well as after hiring the company. I am pleased to inform you that the motion for Early Termination of Supervised Release was granted and I am no longer under supervision or in care of the federal government or a probation officer. Originally, I had wanted to file in Colorado Springs rather than the state I was convicted in (NE) & for good reasons but unbelievably NE granted the termination & I have the papers to prove it, lol. Thank You (everyone involved) for all your help! I will be letting others know and referring your business to those who, like myself, are just a waste of time and taxpayers money. Sincerely,
[withheld]”

Thank you for those kind words!