The 2016 Guidelines Manual Amendments

Today, the 2016 amendments to the United States Sentencing Commission’s Guidelines Manual go live. The topics of this year’s adjustments are:

  1. Compassionate Release from Prison;
  2. Animal Fighting;
  3. Child Pornography Circuit Conflicts;
  4. Immigration; and,
  5. Conditions of Probation and Supervised Release.

Obviously, here we’ll be focusing on the Conditions of Probation and Supervised release, with some later posts dealing with the changes in sentence structures for Animal Fighting, Immigration cases, and possibly Porn. To see the full press release on the amendments that go live today, click here.

Conditions of Federal Probation/Supervised Release

The section of the amendments list regarding the standard, mandatory, and special conditions of supervised release gets started this way:

Reason for Amendment:
This amendment is a result of the Commission’s multi-year review of sentencing practices relating to federal probation and supervised release. The amendment makes several changes to the guidelines and policy statements related to conditions of probation, §5B1.3 (Conditions of Probation), and supervised release, §5D1.3 (Conditions of Supervised Release).

When imposing a sentence of probation or a sentence of imprisonment that includes a period of supervised release, the court is required to impose certain conditions of supervision listed by statute. 18 U.S.C. §§ 3563(a) and 3583(d). Congress has also empowered courts to impose additional conditions of probation and supervised release that are reasonably related to statutory sentencing factors contained in 18 U.S.C. § 3553(a), so long as those conditions “involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in 3553(a)(2).” 18 U.S.C. § 3563(b); see also 18 U.S.C. § 3583(d). Additional conditions of supervised release must also be consistent with any pertinent policy statements issued by the Commission. See 18 U.S.C. §3583(d)(3).

The Commission is directed by its organic statute to promulgate policy statements on the appropriate use of the conditions of probation and supervised release, see 28 U.S.C. § 994(a)(2)(B), and has implemented this directive in §§5B1.3 and 5D1.3. The provisions follow a parallel structure, first setting forth those conditions of supervision that are required by statute in their respective subsections (a) and (b), and then providing guidance on discretionary conditions, which are categorized as “standard” conditions, “special” conditions, and “additional” special conditions, in subsections (c), (d), and (e), respectively.

There is a deeper discussion of cases which have challenged certain restrictions that are placed on federal defendants on supervised release, which is very interesting, but too long to post here.

In essence, here are the changes that this amendment made.

  1. Court Established Payment Schedules: If the Court imposes a mandatory payment schedule for a Special Assessment, Fine, or Restitution Judgment, then that schedule is law. All this amendment really did is change the placement of Court-imposed payment schedules from the “mandatory” section to the “standard” conditions section.
  2. Sex Offenders: Ambiguity was removed from the mandatory condition of a convicted federal sex offender’s requirement to register as a sex offender in their specific state.
  3. Reporting to the Probation Officer: This, too, is simply there to relieve some ambiguity. If a defendant is released to be supervised outside  the jurisdiction of the convicting court, then they are to report to the probation officer of the local Court, then to whomever they’re directed to report to after that.
  4. Leaving the Jurisdiction: This is a good one. Standard Condition #1 is normally worded like this: “the defendant shall not leave the judicial district without the permission of the court or probation officer;” Simple, right? Sometimes, not so much. In States like California, the borders of the districts are weird. In New York, taking the subway from Manhattan to The Bronx or Queens means leaving the Southern District and traveling to the Eastern District. Fall asleep on a train? VIOLATION!
    Anyway, this amendment adds the word “knowingly” to the condition to absolve the subway sleepers and the California hikers from violating a condition of their probation if they didn’t INTEND to violate it. Problem solved.
  5. Answering Truthfully: This one has actually come up more than once with clients. Standard Condition #3 on most Judgment Orders states, “the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;” But what if the probation officer asks a question that an honest answer could be incriminating? Does the 5th Amendment right to remain silent protect a defendant? Yes, yes it does. It always has. However, many probation officers don’t know this. A defendant on federal probation CAN refuse to answer a question on 5th Amendment protection grounds without violating their probation, and now the guidelines acknowledge this and specify it. It also prevents a probation officer from claiming a defendant “didn’t follow directions” because of an invocation of the 5th Amendment protection against self incrimination.
  6. Residence and Employment: This section changes two things. First, for full-time employment, the Commission added that full-time employment means at least 30-hours a week. This is still able to be waived for education, disability, and other reasons at the discretion of the probation officer.Second, a change of employment or residence used to require a defendant to give 10-days notice to their probation officer prior to the change. But what happens in the event a supervised defendant gets fired? Laid off? Their house burns down??? There is now added language to require the notification of 10 days, or within 72 hours of becoming aware of the change.
  7. Visits by Probation Officer: Not much change here. The commission re-asserts that a probation officer may need to visit probationers at work or at home, sometimes without notification to ensure compliance. “The revision provides plain language notice to defendants and guidance to probation officers.”
  8. Association with Criminals: This is a big one, and is a big step backward. The condition that defendants refrain from “association” with persons who they know to be engaged in criminal activity or have been convicted of a felony. That word “association” gives some leeway. Conduct at work will often put a defendant into contact with co-workers who are known to be former felons. This amendment seems to comport with, but restrict the Soltero case below.“[C]onsistent with the fundamental presumption that “prohibited criminal acts require an element of mens rea,” Vega, 545 F.3d at 750, non-association conditions prohibit only knowing contact with persons that the supervisee knows to be felons. See id.; United States v. Soltero, 510 F.3d at 867 n. 9. We further limited the meaning of nonassociation conditions by emphasizing that “ ‘incidental contacts’ ․ do not constitute ‘association’․” Soltero, 510 F.3d at 866-67 (quoting Arciniega v. Freeman, 404 U.S. 4, 4-5 (1971) (per curiam)” U.S. v. King 09-50665 (9th Circuit 2010).
    Now the association clause changes “association” with “communicating or interacting”, but also adds the word “knowingly” into the condition to make it have a specific requirement that a defendant intended to communicate with the criminal or former felon. That way, if the pizza delivery guy is also a drug dealer, but he just delivered a pizza once to a defendant, that exchange wouldn’t violate the Association with Criminals Clause. However, when it comes to professional relationships, the coverage of “association” would seem to be gone.
  9. Arrested or Questioned by a Law Enforcement Officer: This amendment only changes which section the provision goes under and makes no changes to it.
  10. Firearms and Dangerous Weapons: This amendment, or the part that matters, defines what a “dangerous weapon” is. Some clients have complained that their probation officer has ordered them to get rid of a compound hunting bow or a cross-bow because it was considered a dangerous weapon. This amendment defines a dangerous weapon as “anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus (sic) or tasers.” Rest easy. Those compound bows and cross bows don’t seem to fall under this category, as they were designed for animal hunting, not people hunting.
  11. Acting as an Informant: Nothing new here, just a change in language to improve clarity.
  12. Duty to Notify of Risks Posed by the Defendant: This third-party risk notification requirement is usually a hurdle for most defendants in their quest for employment. Many probation officers mandate that defendants tell their employer about their criminal history. This can, and usually does, limit a defendant’s ability to obtain employment. This can spill out in other areas like e-commerce for self-employed defendants and is really sticky. The amendment gives the probation officer more authority when making a determination about this notification requirement, which sucks. This tends to manifest itself in ways that are very detrimental to a supervised defendant.
  13. Supporting Dependents: The change to this condition is minimal, but fixes some vagueness. Basically this will only be applied to the judgement orders of defendants who have dependents that need support. Right now, it’s applied to everybody and is enforced if it is needed to be.
  14. Alcohol; Controlled Substances; Frequenting Places Where Controlled Substances are Sold: Here’s some good news. These conditions have been deleted so that the “excessive use of alcohol” prohibition is now gone and will be replaced with a full prohibition if it is deemed need in specific cases. Controlled substances are already covered in mandatory conditions, and frequenting places where drugs are sold is covered in the “non-association” clause discussed above.
  15. Material Change in Economic Circumstances: In basic terms, this condition requires defendants to notify their probation officer if they get fired/laid-off from their job, or if they come into a lot of money like an inheritance. Since this only matters if the defendant has a fine or restitution outstanding, the Commission has clarified that this condition is not necessary for cases where no fines or restitution judgments exist.

That wraps up this year’s U.S.S.C. Guidelines Manual amendments for supervised release and probation terms. Some important changes, but nothing earth-shattering this year.

Prosecutorial Misconduct Taken to A Whole New Level

Orange County, CA – Its no secret that many felons, defense attorney’s, and inmates believe that the office of the prosecutor fights unfairly and plays dirty. The reality is, there isn’t much oversight to keep prosecutors from doing so. Making matters worse, there is nearly no mechanism used to punish prosecutors who do.

Charge bargaining (plea extortion), trial penalties, and Brady violations are all common forms of prosecutorial misconduct. They are very easy to suspect, but often very hard to prove.

Hard to prove, that is, until a story like this comes out. A judge in Orange County has disqualified any prosecutors from the county District Attorney’s office from participating in a specific criminal case because of rampant corruption and civil rights violations against defendants. Shaun King over at the Daily Kos exhaustively goes over the allegations and the events leading up to the disqualification of prosecutors. His piece gets started this way:

Between San Diego and Los Angeles is Orange County, California. With more than 3 million residents, it’s larger than 21 states. If Orange County were a separate country, its economy would be the 45th largest in the world. Now known for Disneyland, the county may soon be known for having one of the most corrupt justice systems in the world. The width and depth and duration of the corruption truly boggles the mind. A case that should’ve been open and shut has blown the lid off some deep secrets.

On October 12, 2011, Orange County experienced the deadliest mass killing in its modern history. Scott Dekraai killed 8 people, including his ex-wife, in a Seal Beach beauty salon. He was arrested wearing full body armor just a few blocks away. Without a doubt, Dekraai was the perpetrator. A dozen surviving witnesses saw him. He admitted to the shooting early on. Yet, nearly four years later, the case against him has all but fallen apart.

It turns out that prosecutors and police officers committed an egregious violation of Dekraai’s rights—so much so that Superior Court Judge Thomas Goethals shocked everyone and removed the Orange County District Attorney’s Office, and all 250 prosecutors, from having anything more to do with the case.

The entire piece is worth a full read, and will make your blood boil.

AG Holder Remarks on Criminal Justice Reform

While United States Attorney General Eric Holder announced six months ago that he would be leaving his office, he is still serving and waiting for his replacement to be confirmed and take control of the US Department of Justice. In the meantime, he has not let up on his belief that criminal justice reform is a very pressing issue forAttn. General Holder Testifies At Senate Judiciary Hearing On Justice Dept Oversight the DOJ.

In a speech to the Bipartisan Summit on Criminal Justice Reform, a long speech, there was a section that should be posted loud, clear, far, and wide. It speaks to the heart of what true criminal justice reform means and some of the reasons why it is necessary. The section is posted below:

“We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.

That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.”

The full text of Holder’s speech can be found at the DOJ’s website, and is definitely worth the time it takes to read in full.

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 []

Convicted ex-Sen. Vince Fumo wants to end federal supervised release

The title of this post comes from this PennLive article about Vince Fumo. The original article from Philly.com details the corruption charges that landed Fumo in trouble, his prison sentence, and ensuing federal supervised release.

He is now seeking early release from his federal supervised release by motioning the court through his attorney. He is not a client, but represents, in a small way, what we try to accomplish every day here at PCR Consultants.

Here is how the Philly.com article gets started:

CONVICTED FORMER state Sen. Vince Fumo is seeking an early end to his three-year term of supervised release under the watchful eyes of the U.S. Probation Office.

In a motion filed yesterday, Fumo’s lawyer, Dennis Cogan, asked U.S. District Judge Ronald Buckwalter to terminate Fumo’s three-year supervised release after more than 13 months.

“His punishments have been considerable and he has suffered much,” Cogan wrote. “He is now almost 72 years of age. His health is not good and his financial losses have been considerable.”

Fumo was convicted by a federal jury in March 2009 of 137 corruption counts.

Buckwalter had originally sentenced him to 55 months in prison and restitution of $2.3 million to the state Senate, Citizens Alliance and the Independence Seaport Museum. The feds appealed.

Fumo was ultimately sentenced to a prison term of 61 months, three years of supervised release and nearly $4 million in fines, restitution and special assessments, which he has paid in full, Cogan wrote.

Fumo served about four years in prison before being released to home confinement in August 2013 at his Spring Garden mansion on Green Street near 22nd. He received nearly eight months of credit for good behavior.

 

Federal Probation Violation Escalates Quickly

It Stated With A Federal Probation Violation

White City, AL – A high-speed chase ended on Thursday, March 26th with the arrest of David Reynolds of Hanceville, Alabama. This, from a story posted by The Cullman Times before the weekend. Here’s how the story begins:

“A high-speed chase ended in a crash south of Hanceville and the capture of a man wanted for a federal parole violation.

Multiple local law enforcement agencies were involved in the chase after a Cullman Narcotics Enforcement Team member spotted David Jerry Reynolds, 34, driving on U.S. 31 South around 3 p.m. The officer attempted to stop Reynolds, who was driving a blue S-10 pickup, but the suspected continued south into Hanceville and eventually wrecked in the White City community, Cullman County Sheriff Matt Gentry said.”

Reynolds was wanted for a federal probation violation for possessing a firearm. Having, holding, or owning a gun is a big no-no on federal supervised release (or probation).1 A probation violation for possessing a firearm means a quick trip back to prison.

It Escalated Quickly

That Escalted Quickly

Reynolds, wanted for a probation violation, leads police on a high speed chase.

An officer spots Reynolds and attempts to pull him over. Instead of complying, he speeds away and leads law enforcement on a high speed chase that ended Reynolds wrecking his truck. What started with a possible routine traffic-stop-turned-arrest, turned into a very dangerous situation.

Reynolds may have been facing a few years inside prison walls for his probation violation. That’s a federal court issue. Instead of just pulling over when an officer spotted him in his truck, he ran away. This is (most likely) going to add Alabama’s version of the following charges: reckless driving, reckless endangerment, speeding, resisting arrest, and possibly even attempted vehicular assault.

Learn From His Mistakes

If, in the process of living life, you become wanted for a federal probation violation, nothing you can do can make that problem go away. It is possible, however, to make things much, much worse. Reynolds may have been facing a few years in federal prison for his violation (if the government could prove that Reynolds did, in fact, possess a gun when he wasn’t supposed to). After this high speed chase with local law enforcement, though, he is facing many more years in state prison to add to the federal time he still has to do.

Lesson #1: Don’t try to run away from law enforcement. It almost never works, and always makes things worse.

Lesson #2: Running away from a federal probation violation doesn’t make it go away.

Lesson #3: Don’t be like this guy. If you’re in trouble, get an attorney and face it head on. It may just save years of your life that would otherwise be wasted behind bars.

  1. Every federal defendant gets whats called a judgment and commitment order. On that order, standard and special conditions of release are applied after the defendant gets out of prison. The very first conditions always include a ban on possessing firearms. []

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 []

Appeal Waivers and Supervised Release

Federal Plea Agreements

The Devil is in the Details

Over 95% of federal defendants plead guilty, according the the Bureau of Justice Statistics. Because of Bill Otis, Law Professor and contributor to Crime and Consequences, most plea agreements now come with appeal waivers: a waiver of the defendant’s right to appeal.

On the surface, at least to this blogger, the waiver of appeal would bar any appeal of conviction and sentence (except for maybe the habeas writ from 18 U.S.C. §2255). What about the imposed terms or conditions of Supervised Release? Are you barred from appealing or moving to change these?

This is one of those times that it really matters where you are convicted.

The Fifth Circuit – Out of Luck

From US. v. Scallon and Findlaw’s 5th Circuit Blog:

Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn’t bar a defendant from appealing if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” there were no altered guidelines for supervised release in Scallon’s case.

Signing a plea agreement and waiver of appeal may get your client out of jail faster — or help him avoid jail altogether — but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that “waiver of appeal” is more than just terminology; in the Fifth Circuit Court of Appeals, it’s binding on both the sentence and the supervised release terms.

The Third Circuit – Have at It

From U.S. v. Wilson and Findlaw’s 3rd Circuit Blog we get the opposite answer:

When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.

A lot of the defendants don’t think that “waiving appeal” means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn’t work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.

So there it is, a circuit split that helps some but not others. If you’re surprised at the 5th Circuit’s conservative reading of appeal waivers, then you must be new to the game. Anybody willing to take bets on the 9th?

Obama Clemency Plans for Hundreds of Drug Offenders

The title of this post comes from this Yahoo News article today. A new plan for Obama clemency policy is going to be official. Below is how the article gets started:

 

Barbara Scrivner’s long quest for mercy tests a president’s will — and her own faith

DUBLIN, Calif—Scrawled on the inside of Barbara Scrivner’s left arm is a primitive prison tattoo that says “Time Flies.”

If only that were the case.

For Scrivner, time has crawled, it’s dawdled, and on bad days, it’s felt like it’s stood completely still. She was 27 years old when she started serving a 30-year sentence in federal prison for selling a few ounces of methamphetamine. Now, 20 years later, she feels like she’s still living in the early ’90s—she’s never seen or touched a cellphone, she still listens to her favorite band, the Scorpions, and she carefully coats her eyelids in electric blue eye shadow in the morning.

It’s out there, outside of prison, where time flies.

On a sunny afternoon at a federal prison outside San Francisco last month, Scrivner nervously clutched a manila envelope full of photos of herself and her daughter that she keeps in her cell. As she displays the pictures, Scrivner’s daughter Alannah, who was just 2 years old when her mom was put away, changes from a redheaded, freckled young kid to a sullen teen to a struggling young mom. Scrivner changes in the photos, too. At first she’s a plump-cheeked beauty with chestnut-brown hair, then she’s a bleached-blonde woman in her early 30s, before becoming increasingly gaunt as the years grind on.

Today, she most resembles a 40-something high school volleyball coach, in her grey sweatshirt and neatly brushed-out dark bangs. But instead of a whistle around her neck, Barbara wears a large silver crucifix — though she describes her relationship with God as “complicated.”

“I believe in God,” Scrivner says. “I’m really mad with him.”

Her faith has helped her to try to make sense of what feels like an arbitrarily, even cruelly long sentence for her minor role helping her drug dealer husband. But 20 years behind bars has also tested that faith, and even caused her to question whether her life has any meaning or is worth living.

Read the rest of this great article.