In Colorado, Defendants Must do Prosecution’s Job

5th Amendment Under Fire in Fricosu Case

Ramona Fricosu, of Peyton, Colorado is accused of being a part of a mortgage scam. In the course of the investigation against her, search warrants were executed on May 14th of 2010. In that search, the FBI took a Toshiba Satellite M305 laptop.

Then came a problem. Investigators discovered that her laptop’s hard drive was encrypted very very well. Therefore, files that the investigators felt were incriminating1 and vital to the future prosecution were locked away. They concluded it would take a really long time to decrypt the entire drive.

Since this case is being prosecuted in America, all criminal prosecutions are required to be done so with full due process of law2, which includes the right to a speedy trial3. So the decade or more it would take for the prosecution (read: investigative bureau) to decrypt the files would necessarily violate Miss Fricosu’s rights and the charges would not endure.

So what is a judge to do? Option one is to realize that the laws are in place to protect the citizens of the United States against the overpowering force of an unbridled government4. He would therefore throw the case out if the investigation delayed trial longer than a certain period of time. Option two is to order the defendant to decrypt the laptop for investigators.

Last Monday, Judge Robert Blackburn, federal judge for the District of Colorado, chose the second option. In United States v. Fricuso, Judge Blackburn decided that it did not violate the Fricosu’s Fifth Amendment protection against self incrimination to order her to decrypt her laptop hard drive.

Through protests from the defense that this order violates a defendant’s rights, and even an amicus brief from the Electronic Frontier Foundation (EFF) in support of Miss Fricosu, Judge Blackburn decided what could be a dangerous legal precedent on Fifth Amendment rights in the digital age.

From that brief:

“The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity…”

Ruling

Blackburn ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination. (Read the entire 10-page opinion here)

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,”

Fricosu has declined to decrypt a laptop encrypted with Symantec’s PGP Desktop. Defense counsel Phil Dubois, who once represented Phil Zimmermann, PGP’s creator, is now fighting in the federal courts over encryption again.

“I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals … I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”
– Phil Dubois

Fricosu actually may not even be able to decrypt the laptop at all. “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do,” said Dubois.

The U.S. Department of Justice argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passwords. To the U.S. Justice Department, the requested court order represents a simple extension of prosecutors’ long-standing ability to assemble information that could become evidence during a trial. Justice claims that:

“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Much of the discussion on this issue is about what analogy comes closest to this case. Prosecutors argue that PGP passphrases are like a defendant possessing a key to a safe filled with incriminating documents. That defendant can usually be legally compelled to hand over the key.

Case Law

There are no decisions from the United States Supreme Court on this specific topic, but a number of decisions around the country from lower courts informed Blackburn’s decision. Here is a brief look at decisions from Blackburn’s order:

  • United States v. Kirschner – Kirschner was indicted on receiving child pornography. Judge Borman of the Eastern District of Michigan granted the defendant’s Motion to Quash the government’s attempt to compel a password from Kirschner. From that order:

    “In the instant case, even if the government provides Defendant with immunity with regard to the act of producing the password to the grand jury, that does not suffice to protect Defendant’s invocation of his Fifth Amendment privilege in response to questioning that would require him to reveal his password.”

  • United States v. Boucher – Boucher was another child pornography case, this time from the District of Vermont, involving compelling a password from the defendant. In 2007, Magistrate Judge Jerome J. Niedermeier, ruled that such an action would violate Fifth Amendment protections:

    “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

    Later, in an abrupt reversal, U.S. District Judge William Sessions ruled that Boucher did not have a Fifth Amendment right to keep the files encrypted after prosecutors narrowed their request, saying they only wanted Boucher to decrypt the contents of his hard drive before the grand jury, by typing in his password in front of them.

    Boucher appealed to the Second Circuit, and the Appeals Court decided in favor of Boucher5.

  • Accord United States v. Gavegnano, 2009 WL 106370 (4th Cir. Jan. 16, 2009) – Where the “government independently proved that defendant was sole user and possessor of computer, defendant’s revelation of password not subject to suppression”

Conclusion of the Order

Blackburn granted the order in two ways. First, he invoked the All Writs Act6 which “enables the court to issues orders to effectuate an existing search warrant”7.

Second, in a move of legal semantics, Fricosu is not ordered to reveal her password to the government. That has been ruled to violate her Fifth Amendment protections against self-incrimination. Instead, the government only requested that she use her password to decrypt the hard drive in question and then hand the decrypted hard drive over to the government.

Order

THEREFORE, IT IS ORDERED as follows:
1. That the government’s Application Under the All Writs Act Requiring Defendant Fricosu To Assist in the Execution of Previously Issued Search Warrants [#111] filed May 6, 2011, is GRANTED:
2. That Ms. Fricosu’s Motion for Discovery – Seized Hard Drive [#101], filed April 27, 2011, is GRANTED;
3. That on or before February 6, 2012, the government SHALL PROVIDE counsel for defendant, Ramona Camelia Fricosu, with a copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W;
4. That on or before February 21, 2012, defendant, Ramona Camelia Fricosu, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W; and
5. That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution.

  1. Due to a recorded and ill-advised telephone conversation with Fricosu’s ex-husband who was incarcerated []
  2. See the 14th Amendment to the United States Constitution []
  3. See the 6th Amendment to the United States Constitution []
  4. Over-dramatization intended to illustrate reductio ad absurdum []
  5. Although no news was readily found on the Circuit ruling, the lawfirm of James Budreau, attorney for Boucher, says it did. This leaves the question on whether the move itself was quashed, or if the production of the password (not the production of an unencrypted drive, was ultimately decided against. []
  6. 28 U.S.C. §1651 []
  7. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). []

November Round-Up

From Crack Cocaine Sentence Reductions to Early Termination of Supervised Release

November has been a big month in the world of federal corrections. Due to all the recent events, this will be a lengthy post on all matters federal-criminal.

New Retroactive Crack Law

The United States Sentencing Commission’s 2011 Amendments to their Guidelines Manual were enacted on November 1st. In these amendments, the Sentencing Commission made the Fair Sentencing Act of 2010 retroactive in sentence reductions.

Inmates may now petition their sentencing courts to reduce their Crack Cocaine sentences if sentenced before August 3, 2010. There are too many details about this to effectively discuss in this singular article, but here are the highlights:

  1. Sentences must be for 21 U.S.C. §841 or §846
    • §841 (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
    • §846 Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
  2. Sentencing must be issued under the drug quantity table of the Guidelines Manual
  3. In most Circuit Courts, commission of stated crime must have occurred after August 3, 2010 instead of just the sentencing occurring after this date.
    Exceptions are discussed in this prior post.

Federal Probation Early Termination (Supervised Release Too!)

Judges are now being told to cut people loose from federal supervised release and probation. Another amendment to the USSC Guidelines Manual specifically tells federal judges to consider early termination for anybody who is in their final phase of supervision.

In basic terms, if a supervisee is done with treatment, community service, or any other requirement of probation that has an expiration, that person is eligible for early release. If all that is left on supervision is simply monitoring for violations, you have a good chance of getting free. More on this subject on our Federal Probation Termination page.

Supreme Court Round-Up

The United States Supreme Court is collecting cases to hear on November 22, 2011 regarding application of Fair Sentencing Act reductions to “pipeline” cases (see exceptions, above). Davis and Hill are two of the cases regarding this issue that the Supreme Court needs to decide on in order to rectify a Circuit split. The 1st, 3rd, and 11th Circuits apply FSA to all cases sentenced after 8/3/10. The 7th Circuit applies the reduction to cases where the actual crime was committed after that date. All other Circuits are currently mute on the subject.

Also on the docket is the issue of juveniles receiving Life Without Parole sentences. Originally discussed back in 2010 on Sentencing Law and Policy, the Supreme Court is now taking another look at the constitutionality of sentencing kids to die in prison.

Below we’ve summarized the rest of what the Supreme Court has done so far this year:

1. A unanimous AEDPA ruling for the state: “The first opinion of the Term is in Greene v. Fisher. Justice Scalia wrote the opinion for a unanimous Court, which held that for purposes of the Antiterrorism and Effective Death Penalty Act, ‘clearly established federal law’ is limited to the Supreme Court’s decisions ‘as of the time of the relevant state-court adjudication on the merits.’”

2. A hint during oral argument in US v. Jones (transcript here) that GPS tracking might require a warrant: “Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go.”

3. A suggestion during oral argument in Smith v. Cain (transcript here) that SCOTUS that sometimes prosecutors should stop defending hinky convictions: “There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles.”

Federal Inmate-Related Bills In Congress

This isn’t specific to November, but many inmates and families of inmates are hungry for knowledge of what Congress will do next to give relief to federal inmates. Here’s a short list of bills currently proposed for this session:

  • H.R. 2316, the Fair Sentencing Clarification Act retroactively applies the sentence reductions included in last year’s Fair Sentencing Act (FSA). This means that inmates rendered ineligible for reductions because of preexisting mandatory minimum sentences would now benefit from FSA.((Read the 2014 version of the bill here)
  • H.R. 2242, Fairness in Cocaine Sentencing Act of 2011 eliminates any disparity between crack and powder cocaine sentences. Its not retroactive, but makes the ratio that FSA brought from 100:1 to 18:1, down to 1:1.
  • H.R. 2344, the Prisoner Incentive Act of 2011 rewrites the good time statute to make clear that a prisoner is eligible to earn up to 54 days of good time credit per year for each year of the prisoner’s sentence. Since 1988, the Bureau of Prisons (BOP) has interpreted the good time statute to award good time credit based on the time actually served by the prisoner, not the sentence imposed by the judge. As a result, prisoners only earn a maximum of 47 days of good time for each year to which they are sentenced, instead of the 54 days per year many believed Congress intended.
  • H.R. 223, the Federal Prison Bureau Nonviolent Offender Relief Act of 2011 directs the Bureau of Prisons to release individuals from prison who have served 50 percent or more of their sentence if that prisoner: (1) is 45 years of age or older; (2) has never been convicted of a crime of violence; and (3) has not engaged in any violation, involving violent conduct, of institutional disciplinary regulations. The bill is intended to reduce overcrowding in federal prisons and give those nonviolent offenders over the age of 45 a second chance.

For more information on bills currently in Congress, visit the FAMM page regarding the subject.

As the holidays approach, hope can either strengthen or wane. PCR Consultants wishes all the best to the people it serves: Defendants, Inmates, Released Offenders, and their families. For more information on any subject here, give us a call at (480) 382-9287.

US Sentencing Commission Posts 2011 Amendments

New 2011 Amendments from U.S.S.C.

With October upon us, and November first rapidly approaching, PCR Consultants is starting a yearly tradition of breaking down this year’s amendments to the United States Sentencing Guidelines as published by the US Sentencing Commission (U.S.S.C.). Each year, these amendments become active on the first day of November.

To find out how PCR Consultants can help you take advantage of these new amendments, contact us for a free consultation at (480) 382-9287.

Here is a breakdown of the Amendments, what changed, and how they may help or hurt federal defendants, inmates, and those on probation.

The Amendments

Fair Sentencing Act: The Commission re-submitted its changes to crack cocaine sentencing guidelines per the Fair Sentencing Act of 2010. On June 30, 2011 the Commission voted unanimously to make the guidelines changes retroactive. Read more on our Crack Cocaine Sentence Reductions page.

Supervised Release: Learn more about getting early release from federal probation or supervised release with the help of PCR Consultants on our Early Termination Page. This year, four changes were made to Supervised Release and federal Probation:

  1. Deportable Aliens: This change effectively eliminates Supervised Release for defendants who are not required it by law, and are likely to be deported after imprisonment;
  2. Lesser Terms of Supervised Release: The Commission lowered the minimum term of Supervised Release under §2D1.2 from three years to two years from Class A and B felonies, and from 2 years to one year for Class C and D felonies;
  3. Guidance on Imposing Supervised Release Terms: The Commission added criminal history and substance abuse to what the court should consider in determining whether to impose supervised release, and for how long;1
  4. Early Termination of Supervised Release: §5D1.2, has been amended with language which specifically encourages courts to consider early termination of supervised release “in appropriate cases.” An example provided is a substance abuser who successfully completes a treatment program, “thereby reducing the risk to the public from further crimes of the defendant.”

Illegal Reentry: The Commission reduced but didn’t eliminate, the enhancements based on stale convictions or convictions that do not receive criminal history points under chapter 4 of the guidelines. This amendment also provides an upward departure if the new enhancement “does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction.

Mitigating Role: This amendment changed the language of its notes to §3B1.2 (Mitigating Role) to encourage the courts to apply the adjustment therein. This amendment struck (1) from Application Note 3(c)2 and (2) from Application Note 43. This amendment encourages the court that it can, and should, give this adjustment when the only evidence of role rests upon circumstantial evidence and the defendant’s statement of his/her participation.

The US Sentencing Commission also changed the language of §1B1.3 (Relevant Conduct) to help clients who are charged with fraud crimes but benefited little from the overall fraud scheme.

Firearms: Guidelines §2K2.1 and §2M5.2 are changed for the worse. In §2K2.1, the Commission increased penalties for straw purchasers, added a 4-level enhancement (and floor of 18 points) when a defendant left or tried to leave the US while possessing any firearm or ammunition. There is, however, language for downward departure for straw purchasers who were motivated by an intimate or familiar relationship or by threats or fear to commit the offense, where no monetary benefit from the offense exists.

The changes to §2M5.2 raised penalties for cases involving small arms crossing the border, increasing the base offense level from 14 to 26 in cases involving more than two (changed from 10) non-fully automatic small arms.

Fraud: Responding to new health care legislation, §2B1.1 was amended in two ways. First, tiered enhancements for loss amounts of over $1 million were added. Second, a new rule for loss amounts in healthcare fraud cases was added, but is arguable.

Child Support: Defendants convicted of willful failure to pay court-ordered child support are no longer subject to a 2-level enhancement under §2B1.1(b)(8)(C).

Drug Disposal Act: This final amendment broadens the list of people who can be subject to an enhancement for abusing a position of trust or use of a special skill. This is ordinarily used in drug offenses.

**************************

  1. Adding these to the statutory factors set forth in 18 U.S.C. §3583 []
  2. Stating that the court “is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted” []
  3. The statement: “It is intended that the downward adjustment for minimal participant will be used infrequently []

3rd Circuit Applies Lower Mandatory Minimum Terms to FSA Pipeline Cases

Pretrial Defendants

Many times a federal criminal defendant can sit on pretrial status for a long time. Sometimes this status can last years. In Crack Cocaine cases, this can create a problem at sentencing when district courts try to decide which rules to follow.

Who FSA Applies to (and Who it Doesn’t)

The Fair Sentencing Act of 2010 (FSA) was enacted on August 3, 2010. Those that are sentenced before the enactment of FSA, get sentenced using the old rules. Those that commit their offenses after the enactment of FSA get sentenced under the new rules.

These new rules lower the base-offense levels of many crack cocaine offenses, change the mandatory minimum sentences to greatly increase the quantities of “cocaine base” that trigger them, and eliminate the mandatory minimum altogether for simple possession of small quantities of crack cocaine.

FSA Pipeline Cases

But what about pretrial defendants who committed their crime before FSA was enacted (August 3, 2010), but are sentenced afterwards? These are called  “FSA Pipeline Cases” because the defendants in question were in the sentencing pipeline when FSA was enacted.

This is a question that has been asked and answered by four circuit courts. The First, Eleventh, and now Third Circuit (as of August 9, 2011) courts have said that the new rules apply to pipeline cases. The Seventh Circuit stands alone in ruling against applying the newer, fairer rules to pipeline cases.

Sentencing decisions in all other circuits will depend on representation. If you know somebody who was sentenced by any circuit other than the Seventh Circuit for crack cocaine charges, they may well be entitled to significant sentence reductions.

Contact us for a Free Consultation Today!

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.
Read More About Crack Cocaine Sentence Reductions
If you were sentenced under old law, see our main page about getting your sentence reduced.
Read about the Sentencing Commission’s decision to make FSA Retroactive.
Read the text of the Third Circuit’s recent decision to make FSA apply to pipeline cases.

As Criminal Laws Proliferate, More Are Ensnared

Mens Rea (Criminal Intent) Not Necessary

The title of this post is taken from a recent article detailing the American way of criminal justice, its ever-expanding number of criminal laws, and its diminishing need for criminal intent. Whereas a vast majority of crimes used to be under state and local laws, the federal criminal machine has slowly expanded its reach.

From the original article:

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don’t necessarily need to show that the defendant had criminal intent.

These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”

A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.

If the professionals who practice federal prosecution and defense cannot count the number of federal criminal laws that exist, how are ordinary American’s supposed to know if their hobby is a crime? If this sound ridiculous, just read the story of Eddie Leroy Anderson of Craigmont, Idaho who was indicted, along with his son, for going arrowhead hunting near their favorite campground.

This trend is frightening to say the least. However, when confronted with this level of over-criminalization, it is no wonder why America incarcerates 743 citizens per 100,000. For comparison’s sake, Canada incarcerates 117, Sweden incarceration 78. Even China, with a population of 1.35 Billion people, has a total incarcerated population of 1.6 million (122 per 100,000) while the U.S. has 2.3 million.

To see total world rankings, visit the International Centre for Prison Studies.

Decisions Involving Tapia v United States

Rehabilitative Sentences are Illegal

If you have a loved one who was sentenced to a longer than normal term of imprisonment specifically so he or she could participate in rehabilitative programs within the Bureau of Prisons, that sentence is unlawful and we can help get it reversed! Please read on for important information.

Contact Us for a Free Consultation

PCR Consultants is a different kind of consulting agency. PCR stands for Post Conviction Relief and we focus on changing outcomes when contending with the Department of Justice and Bureau of Prisons.

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses and learn about us and how our services work on our about page.

Tapia and its Fallout

As reported in this earlier article on Supreme Court decisions this session, Tapia v United States was an important sentencing decision that can and will impact sentencing in U.S. District courts from now on. The collateral effects of the decision are now beginning to be felt, and here we’ll see two opposing decisions from two separate circuits involving the Tapia ruling in supervised release revocation decisions.

In Tapia, the Ninth Circuit decision was reversed in a 9-0 decision by the United States Supreme Court. The high court’s opinion was authored by Justice Elana Kagan on June 16, 2011. Justice Sotomayor filed a concurring opinion, which was joined by Justice Alito. This ruling held that:

18 U.S.C. § 3582(a) does not permit a sentencing court to impose or lengthen a prison term to foster a defendant’s rehabilitation.

This says that sentences passed down by judges that were lengthened specifically to enable the defendant to participate in rehabilitating programs within the Bureau of Prisons are considered unlawful. The ruling here is not challenged now by lower courts in original sentencing hearings. It is, however, being picked apart within hearings which deal with revocations of supervised release.

The First Circuit, in US v. Molignaro, No. 10-1320 (1st Cir. July 6, 2011), applied SCOTUS’s ruling in Tapia to reverse a lengthened term of imprisonment intended to facilitate a defendant’s rehabilitation upon revocation of his supervised release:

Acting under 18 U.S.C. § 3583(e), the district court revoked the order for supervised release and resentenced the defendant. Federal advisory sentencing guidelines recommended imprisonment of 3 to 9 months after such a violation, but the district court ordered 22 months (followed by further supervised release). The court imposed the longer prison sentence so that Molignaro would have ample time to take part in a course of sex therapy at a nearby federal prison (Devens) that could run for up to 18 months, and although the judge did not state the period he would have imposed in the absence of the treatment program, he did say that 9 months would have been too short in light of what he found to be Molignaro’s choices to go where children were present and the risk of untoward behavior was great. Molignaro objected that setting the imprisonment term with the goal of providing therapy was error as a matter of law, and that in any case 22 months was unreasonably long. We hold that the resentencing court’s objective of tailoring the length of imprisonment to provide adequate time for treatment was barred by statute, and we vacate the sentence and remand for resentencing.

The Fifth Circuit ruled the opposite way in US v. Breland, No. 10-60610 (5th Cir. July 19, 2011):

The question presented in this appeal is whether a district court may consider a defendant’s rehabilitative needs when revoking the defendant’s supervised release and requiring him to serve the remainder of his sentence in prison. The district court sentenced the defendant, William C. Breland Jr., to thirty-five months of imprisonment upon revocation of his supervised release. On appeal, Breland challenges the procedural reasonableness of that sentence, arguing that the district court imposed it for the sole purpose of qualifying him for the Bureau of Prison’s (“BOP”) 500-hour drug-treatment program. He also challenges the substantive reasonableness of the sentence. Because the plain language and operation of 18 U.S.C. § 3583(e) and (g), which governs post revocation sentencing, permits the consideration of rehabilitative needs, and because Breland’s sentence is not otherwise unreasonable, we affirm.

What this all means

To the lower courts, the application of Tapia to sentences handed down during supervised release revocation hearings is open to interpretation. Circuits are split and there is no way to tell which Circuit will go in which direction. This conflict in Circuit decisions will invariably be brought to the Supreme Court for further interpretation. Whether Certiorari will be granted is only up to the high court itself. Before this happens, however, different Circuit courts will continue to treat this issue within their own decisions.

If you want to find out if these rulings can help you or a loved one, please contact us to find out.

Early Release from Federal Probation – Success

Our Services Work!

We offer easy, fast, and affordable services to help clients gain early release from federal probation, or supervised release (as the case may be). You can see our main page on our services at our service’s main page.

The actual filing of a motion to gain early release from federal probation can be complicated or simple, depending on the district in which the filing is submitted. However, district courts can be very forgiving of pro se clients at that low of a level, because judges realize that defendants aren’t professional attorneys. However, writing a letter to a judge, or submitting a fill-in-the-blank motion can be a mistake.

What if that judge isn’t in a very forgiving mood that day? Chances are, your request for early release from federal probation gets denied for a procedural error without even being considered.

Here at PCR Consultants, we ensure that your paperwork speaks the Court’s “language”, and that language is legalese. With proper paperwork, and well-formed arguments using the eight laws and nine policies judges consider when these requests make it to their desk, we turbo-charge what would normally be a best-guess attempt at gaining early termination.

Here’s the Proof!

Follow the link below for a judicial order in favor of on of our client. In this case, early release from federal probation came about the halfway point of supervision

Supervised Release ended before two full years were served.
(Client name redacted to protect privacy)

A Broken System – No Crime or No Punishment

The System is Broken

What is the purpose of incarceration?

Official definitions and intentions of prison time vary, but the basic principles are these: protecting the public from danger, rehabilitating offenders, and metering would-be
offenders from committing similar crimes in the future.

It seems commonly known that the way the United States government, and the states beneath it, incarcerates people is broken. So much so that the United States Supreme Court has recently ordered California to release a large portion of its incarcerated population. The decision states that California prisons are so overcrowded that basic medical and mental health care cannot be reasonably provided which qualifies as cruel and unusual punishment.

Two Examples in the News

Here are two stories which highlight the most fractured pieces of the Judicial branch of government, arguably the first cog in this engine of mass incarceration.

John Edwards

Former presidential candidate John Edwards was indicted on Friday June 3, 2011 on charges that, basically, he is a Dirtbag. The case against Edwards cites a very liberal interpretation of campaign finance laws from 1971, and a conspiracy charge wholly predicated on the illegal nature of the alleged campaign finance violations.

Edwards is a dirty politician [redundancy intentional], without a doubt. Add to his status as a politician, he is a lying jerk who cheated on his wife while she was losing a battle with terminal cancer. He also had a child with his mistress, which he tried to hide, while his wife was dying. He is not a man of moral integrity. However, he may very well have not broken any laws.

That, however, is a decision for the federal courts to make.

In the negotiations that occurred just before his indictment was handed down by a Grand Jury, a plea agreement was discussed well into the early morning hours. The negotiations evolved from 2 felony guilty pleas without to 3 misdemeanor pleas with possibility of incarceration. Prosecutors wanted a felony on his record jail time. Edwards, who is a trial attorney himself, declined the final offer because it prevented his attorneys from even discussing incarceration alternatives with the judge.

In this case (as in so many others) prosecutorial charging and bargaining choices are driven by prosecutorial interest and power to demand a certain type of sentence.

Ryan LeVin Purchases his Freedom

An Illinois man killed two British businessmen while driving drunk. The Chicago Tribune reported the story as the sentencing piece unfolded. Prison time was pit against financially providing for the two families of the dead businessmen.

Ryan LeVin, 36, will spend 2 years on home confinement in one of his parents’ waterfront condominiums. This, for killing two men with his Porsche 911 Turbo. This seemingly light sentence came to be when the decision had to be made between using LeVin’s substantial financial means to provide for the families of his victims and that of punishing him through incarceration (of which he was facing up to 45 years).

In the end, his checkbook bought his freedom from prison. The decision has caused a lot of ire from the legal profession about the system and freedom being for sale.

Federal Pretrial Primer 3: Getting the Prison you Want

This is the third and final installment of PCR Consultants’ primer on the federal pretrial phase of incarceration. The institution where one eventually does time is equally as important as how much time he or she will spend inside.

Your Next Destination

Are some Institutions Better than Others?

The short answer is: yes. Once it becomes clear that a prison sentence is unavoidable, the next question is always about where a defendant will do his or her time. This is not only an important question, it is the ONLY question that can make a meaningful difference to quality of life when doing time, and how soon an inmate can leave.

A lot of questions need to be answered, but this is where lawyers tend to fall very short. Lawyers can know a ton about criminal defense, but also know almost nothing about the inner workings of the Bureau of Prisons (BOP). The BOP uses its own set of standards to determine what security level an inmate “requires”. A future inmate of the BOP might assume that he belongs in a camp because he has no prior criminal record at all, but this isn’t always true.

If a sentence is too long, security levels increase. If it is too short, the certain camp a defendant asked to go to may no be given to him because it offers programs that require a sentence be certain length to qualify for placement there. At this point a judge’s opinion is only advisory, and the future inmate is fully at the mercy of the BOP. However, there is good news.

A sentencing judge can make a recommendation to the BOP of where he or she wishes to be incarcerated. If (and this is a huge ‘if’) that judge makes a recommendation for placement which is within BOP regulations for security level and program needs, that recommendation is granted a large majority of the time. If not, a future BOP resident can be sent literally ANYWHERE in the country that has room for them. Avoiding this mistake can mean months of time taken away in a halfway house and even up to a year off an inmate’s sentence for participation in the BOP’s residential drug and alcohol program.

Because lawyers make their money in criminal defense, most don’t spend the time to make truly informed decisions on what to ask the judge to recommend. This mistake is costly, but the cost of it is only apparent after one is already behind bars and its months-too-late to correct the problem. Prison Consultants, good ones anyway, have first-hand knowledge of the BOP process of inmate designation and which institutions are better and worse, closest to home, and have the programs available for each client’s specific needs.

Thank you for reading this primer. There will be many more to come which detail life inside the BOP, what to expect from a halfway house, and what’s in store for a released convict with the US Probation Office.

Federal Pretrial Primer 2: Pleas, Sentencing and Designation

This is the second of three articles written by the prison consulting firm PCR Consultants which deals with the federal pretrial phase of an inmate’s federal prison experience. Here we’ll look at what you can expect, how you’re odds are for beating an indictment, and how you can help yourself before leaving for prison.

The first hard truth that needs to be dealt with is an impending conviction. According to the Bureau of Justice Statistics, 93.6% of all federal defendants plead guilty at some point before trial. All federal district court cases are prosecuted by the local U.S. Attorney, and some places, like the Northern District of Illinois (lead by U.S. Attorney Patrick Fitzgerald) boast over a 97% conviction rate.

This creates an environment that encourages plea bargains because nobody wants to go up against those kinds of odds, but those odds are greatly bolstered by guilty pleas. Regardless of the chicken or egg argument, if you are indicted by the United States Attorney you most likely will end up with a Felony Conviction. This also probably means a stay, long or short, in federal prison.

Three events make up this federal pretrial time-line. First is the plea hearing, followed by trial and/or sentencing hearing (depending on the plea). The process ends with a simple letter from the federal Bureau of Prisons alerting the convicted of where they will be serving their sentence.

These events carry with them a possibility for better or worse outcomes, depending on how they are dealt with. A plea bargain is rather routine, but normally is negotiated very aggressively by the assigned Assistant U.S. Attorney who is prosecuting the case. Knowing if you are getting a good bargain or a bad one is difficult. This is probably the first time a defendant has been in this position before and hasn’t studied other cases like theirs to check if a similar case was given a better deal.

Realize that prosecutors are recognized by both their conviction rates AND the length of sentences they average. This is a negotiation like anything else and they want the most time in prison with the least amount of work they can get away with. However, this is a pitfall in and of itself because a wrong step can remove the plea bargain option altogether.

Next is the sentencing after plea or trial. Sentences can become much more strict if the defendant forces trial, and leniency in sentencing at that point is solely at the discretion of the presiding judge. On the other hand, sentencing after a cooperative plea hearing is automatically reduced just for cooperating with the U.S. Attorney, and different legal avenues can be used, depending on the situation, to abolish ugly things like “Mandatory Minimum” sentences. Does your attorney know how to use these avenues? Can your attorney effectively calculate your sentencing guidelines?

A prison consultant can work with you to be a second opinion, using real-world experiences backed by solid law, to make sure that you are getting the best possible sentence, and even garnering reductions in that sentence with their personal conduct while on pretrial status.

***Years of your life can be saved by knowing even the smallest details that your lawyer may not know***