Tuesday news and notes

1. Eric Holder's speech was quite a doozy and is a breath of fresh air for the draconian sentences that have been doled out over the past 20 years.

Even though law enforcement is complaining that their snitches won't be as motivated under the new policy, the real question is whether the actual policy goes far enough. Unfortunately, the policy is not law and is not binding on prosecutors.  In other words, it leaves the discretion with individual prosecutors as to whether to follow it or not.  (In the recent Brady policy issued to prosecutors, it's become clear that nothing much has changed because prosecutors still say that they are only obligated to turn over what's required by the rule and not by the policy statement of their boss.) Rumpole also raises the real concern (in the comments) about whether the new policy will be ignored when defendants actually decide to fight and go to trial... Let's see how this plays out; It's still a good start, which should be applauded because judges will be free to judge again instead of imposing arbitrary min/man sentences.

UPDATE --the actual policy can be read here.

2.  The ABA has approved a resolution in support of legislation authorizing judgeships.  Via Legal Newsline (HT GS): 

At this year’s meeting, which runs through Tuesday, delegates voted in favor of comprehensive legislation to authorize needed permanent and temporary federal judgeships, with particular focus on the federal districts with identified judicial emergencies “so that affected courts may adjudicate all cases in a fair, just and timely manner.”

The ABA also is urging President Barack Obama to advance nominees for current vacancies for federal judicial positions “promptly” and the U.S. Senate to hear and vote on the nominations “expeditiously.”

The association noted that Congress has not passed comprehensive legislation authorizing additional judgeships since 1990.

Since that time, federal district courts have experienced a 38 percent growth in caseloads but have seen only a 4 percent increase in judgeships.

“Legislation is needed to ensure that the federal judiciary has the judgeships it needs to adjudicate all cases in a prompt, efficient and fair manner,” according to the association’s executive summary of the resolution.

“As of May 16, 2013, there are 85 federal judicial vacancies and 24 nominations pending. Filling these existing judicial vacancies is essential.”

Last month, U.S. Sens. Patrick Leahy and Chris Coons introduced legislation that would create 91 new federal judgeships in two federal circuits and 32 federal districts across 21 states.

Maybe we should confirm the outstanding judges first...

Three powerful op-eds in the New York Times (UPDATED)

All three are really worth your time.

The first is John Grisham's piece on Guantanamo, highlighting a horrible injustice to a person named Nabil Hadjarab:

For reasons that had nothing to do with terror, war or criminal behavior, Nabil was living peacefully in an Algerian guesthouse in Kabul, Afghanistan, on Sept. 11, 2001. Following the United States invasion, word spread among the Arab communities that the Afghan Northern Alliance was rounding up and killing foreign Arabs. Nabil and many others headed for Pakistan in a desperate effort to escape the danger. En route, he said, he was wounded in a bombing raid and woke up in a hospital in Jalalabad.

At that time, the United States was throwing money at anyone who could deliver an out-of-town Arab found in the region. Nabil was sold to the United States for a bounty of $5,000 and taken to an underground prison in Kabul. There he experienced torture for the first time. To house the prisoners of its war on terror, the United States military put up a makeshift prison at Bagram Air Base in Afghanistan. Bagram would quickly become notorious, and make Guantánamo look like a church camp. When Nabil arrived there in January 2002, as one of the first prisoners, there were no walls, only razor-wire cages. In the bitter cold, Nabil was forced to sleep on concrete floors without cover. Food and water were scarce. To and from his frequent interrogations, Nabil was beaten by United States soldiers and dragged up and down concrete stairs. Other prisoners died. After a month in Bagram, Nabil was transferred to a prison at Kandahar, where the abuse continued.

Throughout his incarceration in Afghanistan, Nabil strenuously denied any connection to Al Qaeda, the Taliban or anyone or any organization remotely linked to the 9/11 attacks. And the Americans had no proof of his involvement, save for bogus claims implicating him from other prisoners extracted in a Kabul torture chamber. Several United States interrogators told him his was a case of mistaken identity. Nonetheless, the United States had adopted strict rules for Arabs in custody — all were to be sent to Guantánamo. On Feb. 15, 2002, Nabil was flown to Cuba; shackled, bound and hooded.

Since then, Nabil has been subjected to all the horrors of the Gitmo handbook: sleep deprivation, sensory deprivation, temperature extremes, prolonged isolation, lack of access to sunlight, almost no recreation and limited medical care. In 11 years, he has never been permitted a visit from a family member. For reasons known only to the men who run the prison, Nabil has never been waterboarded. His lawyer believes this is because he knows nothing and has nothing to give.

Next up is the editorial board condemning BOP for transferring 1100 women inmates:

The decision by the Federal Bureau of Prisons to transfer more than 1,100 women from a federal prison in Danbury, Conn., to other locations, including a remote facility in Aliceville, Ala., was rightly denounced as bad policy when it became widely known earlier this summer.
Now, 11 senators from Northeastern states have sent a letter to the bureau’s director, Charles Samuels Jr., asking him to reconsider the plan to send prisoners to Aliceville. The senators, led by Chris Murphy of Connecticut and Kirsten Gillibrand of New York, argue that the transfers would make it difficult if not impossible for families to sustain the visits that make it more likely that inmates will re-enter society successfully once they complete their sentences. The move would leave the Northeastern corridor with no federal beds for female inmates.

Finally is Nicholas D. Kristof's column on "all that is wrong with America’s criminal justice system," exploring "the nightmare experienced by Edward Young."

Young, now 43, was convicted of several burglaries as a young man but then resolved that he would turn his life around. Released from prison in 1996, he married, worked six days a week, and raised four children in Hixson, Tenn.

Then a neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings. He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them.

“He was trying to help me out,” Mumpower told me. “My husband was a pack rat, and I was trying to clear things out.”

Then Young became a suspect in burglaries at storage facilities and vehicles in the area, and the police searched his home and found the forgotten shotgun shells as well as some stolen goods. The United States attorney in Chattanooga prosecuted Young under a federal law that bars ex-felons from possessing guns or ammunition. In this case, under the Armed Career Criminal Act, that meant a 15-year minimum sentence.

The United States attorney, William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings.

In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison. It didn’t matter that the local authorities eventually dismissed the burglary charges.

Horrific. All three.

Updated -- Some good news this morning via the NY Times. Eric Holder is announcing a new policy on drug cases to ease some of the crazy high sentences in drug cases:

Mr. Holder’s speech on Monday deplores the moral impact of the United States’ high incarceration rate: although it has only 5 percent of the world’s population, it has 25 percent of its prisoners, he notes. But he also attempts to pre-empt political controversy by painting his effort as following the lead of prison reform efforts in primarily conservative-led Southern states.

Under a policy memorandum being sent to all United States attorney offices on Monday, according to an administration official, prosecutors will be told that they may not write the specific quantity of drugs when drafting indictments for drug defendants who meet the following four criteria: their conduct did not involve violence, the use of a weapon or sales to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or cartels; and they have no significant criminal history.

For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said.

It is not clear whether current cases that have not yet been adjudicated would be recharged because of the new policy.

I really like this story

From federal prisoner to federal law clerk on the D.C. Circuit.  Really incredible.  From the BLT:

Shon Hopwood's unique career in the law has taken a dramatic new turn. The onetime jailhouse lawyer who served time in federal prison for robbing banks has been hired as a 2014 law clerk for Judge Janice Rogers Brown of the prestigious U.S. Court of Appeals for the D.C. Circuit."I'm amazed at the opportunities and second chances I have been given," said Hopwood Wednesday after returning home to Seattle from his interview with Brown on Monday. Hopwood said the judge offered him the job soon after the interview. "I quickly said yes."While in Washington, D.C. Hopwood, 38, also visited former solicitor general Seth Waxman, who has been something of a mentor to Hopwood for more than a decade. They made contact after a certiorari petition Hopwood wrote for a fellow inmate while in prison was granted review by the Supreme Court. The 2004 case was Fellers v. United States. Hopwood chronicled his experiences in the 2012 book Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption.After a post-prison stint with Cockle Law Brief Printing Company in Nebraska, Hopwood has been a student for the last two years at University of Washington School of Law. Last summer he interned for a federal district court judge in Seattle, and this summer he has been working in the federal public defender's office, also in Seattle. Hopwood said that partly because of the budget cuts caused by sequestration, he has appeared in court for sentencing and other proceedings more often than fellow students working at law firms. Hopwood is scheduled to graduate from law school next summer....  

After his year with Judge Brown, will Hopwood follow in the footsteps of other D.C. Circuit clerks and apply for a Supreme Court clerkship? "I haven't given that any thought at all," he said, sounding surprised at the question. "I'm taking it one step at a time, and I'm still in a state of shock."

UPDATE -- the judge who sentenced Hopwood, Judge Kopf, wrote a blog post about his sentencing decision and gut instincts at sentencing. Hopwood and the judge have a fascinating discussion in the comments section, including this initial letter from Hopwood:

Shon Hopwood says:
August 8, 2013 at 11:07 am
Dear Judge Kopf,

I wouldn’t say that your sentencing instincts suck. While I meant what I said at sentencing, I was hardly the person that could back it up. I was a reckless and selfish young man back then. I changed. I think most of us change from the age of 22 to 38. And many, like me, outgrow the irresponsibility and foolishness. I can’t tell you how many law enforcement officers (including prosecutors) have come up to me and said something similar to this: I know your story and I too committed some crimes when I was young (although not in the category of bank robberies), and I was lucky enough to not get caught. They changed and channeled their energies and became responsible professionals. I did, too.

And to answer Russ’s question, as far as the length of sentencing, I think it had little effect on my rehabilitation. Prison is not the place for personal growth. Very few people come out of it for the better. From my experience, sentences over 5 years do little to help society or the prisoner. Five years is about the maximum amount of time for someone to “get it” and change and create a different life. More than that, and prisoners feel hopelessness and they think “why bother, I just need to get through this and go home.” It’s very difficult to “seize the day” in prison and use every day to prepare for release when you staring at a 10- or 20-year sentence in the face. And like I said, prisons are not designed with rehabilitation in mind. It’s almost solely about incapacitation, which is why the national recidivism rate hovers at 66%.

I made it because I grew up and because I received a large dollop of God’s grace in the form of: 1) a loving family that never gave up on me; 2) finding the law and helping others through the law, which gave me purpose; 3) a beautiful woman who encouraged me (and I later married once I was released); and 4) some gracious lawyers at WilmerHale who mentored me and pushed me to dream big (my original dream was to become a paralegal, not law school, and definitely not a future clerk on the DC Circuit).

But as a judge, you’re constrained by the system we have. I’ve never believed that it’s up to judges to fix that system on their own. It requires citizens to view criminal justice issues differently (and heck, to view prisoners differently), and a Congress to actually pass some legislation.

I feel fortunate that I have been given so many second chances, including the sentence which allowed me to be released at a fairly young age. That doesn’t always happen.

http://www.theatlantic.com/national/archive/2012/12/i-got-a-second-chance-after-robbing-banks-and-others-should-too/266567/

Take care,
Shon

Don't file Anders briefs

The blog has discussed this issue before, and the last time, the case went all the way to the Supreme Court.

This time, in United States v. Fries, a defendant's conviction was reversed for insufficient evidence:

Fries did not object to the proposed jury instruction, either at the charge conference or at trial, on the ground that it did not require the government to prove that the buyer of the firearm did not possess an FFL. Nor did Fries file a motion for judgment of acquittal at the close of the government’s case, at the close of all the evidence, or in a post-trial motion.
Fries filed a notice of appeal, but soon thereafter his attorney filed a motion to withdraw as counsel and an Anders brief, contending that a review of the record revealed no arguable issue of merit upon which he could proceed in good faith. A member of this Court subsequently denied the motion to withdraw and ordered further briefing on the following two issues:
(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non-residents that did not apply in the case; and (2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In keeping with that directive, Fries now argues that because there is insufficient evidence to support a finding that Visnovske did not have an FFL when Fries sold him the firearm at issue in Count II, his conviction should be reversed. He also argues in the alternative that because the trial judge instructed the jury that transferee’s licensure status was an exception to criminal liability under
§ 922(a)(5) rather than an essential element of the crime, the jury instructions erroneously relieved the government of its burden to prove beyond a reasonable doubt that the person to whom Fries allegedly sold the Kimber firearm charged in Count II of the indictment (Visnovske) did not possess an FFL. 

Ultimately the Court rules for the defense:

It is no answer to say that the particular element at issue here—the licensure status of the transferee for purposes of § 922(a)(5)—is unimportant or somehow a technicality: our charge as arbiters of the law does not turn upon the potential for intrigue presented by the particular plot or cast of characters of a given case. Even where the defendant fails to move for acquittal and our review of the record is at its most charitable, in the end the responsibility to provide some scintilla of evidence regarding each element of a crime falls squarely on the government. Because the government failed to make that minimal showing, Fries’s conviction must fall.

Two local mayors charged... and arrested

Lots of local media coverage about the new case brought today against Mayors Michael Pizzi and Manuel Marono, so no need to rehash it on the blog.

But I've always wondered why there needs to be arrests in cases like this. Why not have them surrender and save the very overspent system the expense of sending the calavry to bring them in.

Of course the reason is to show the public the images/video of the arrests...

Is it worth it, readers?

UPDATE -- here are the complaints for Pizzi (represented by Ben Kuehne) and for Marono (represented by Kendall Coffey).

Tuesday's news and notes -- Government misbeheaving edition

Any one of these stories is breathtaking, but all three together... wow.

1.  FBI informants commit a lot of crimes -- with the FBI's approval.  USA Today's Brad Heath has the depressing story here:

WASHINGTON — The FBI gave its informants permission to break the law at least 5,658 times in a single year, according to newly disclosed documents that show just how often the nation's top law enforcement agency enlists criminals to help it battle crime.

...

Agents authorized 15 crimes a day, on average, including everything from buying and selling illegal drugs to bribing government officials and plotting robberies. FBI officials have said in the past that permitting their informants — who are often criminals themselves — to break the law is an indispensable, if sometimes distasteful, part of investigating criminal organizations.

...

USA TODAY obtained a copy of the FBI's 2011 report under the Freedom of Information Act. The report does not spell out what types of crimes its agents authorized, or how serious they were. It also did not include any information about crimes the bureau's sources were known to have committed without the government's permission.

...

"The million-dollar question is: How much crime is the government tolerating from its informants?" said Alexandra Natapoff, a professor at Loyola Law School Los Angeles who has studied such issues. "I'm sure that if we really knew that number, we would all be shocked."

A spokeswoman for the FBI, Denise Ballew, declined to answer questions about the report, saying only that the circumstances in which its informants are allowed to break the law are "situational, tightly controlled," and subject to Justice Department policy. The FBI almost always keeps its informants' work secret. The agency said in a 2007 budget request that it has a network of about 15,000 confidential sources.

2.  So how to federal cases actually get started?  The government has asked DEA to cover up and fabricate the answers. This is insane, if true. From Reuters:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses."I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

3. And if the government is doing anything wrong, there is nothing that you can do about it. Huffington Post has this long read about misbehaving prosecutors and how the system protects them. Here's a little snippet of a really great article:

Over the last year or so, a number of high-profile stories have fostered discussion and analysis of prosecutorial power, discretion and accountability: the prosecution and subsequent suicide of Internet activist Aaron Swartz; the Obama administration's unprecedented prosecution of whistleblowers; the related Department of Justice investigations into the sources of leaks that have raised First Amendment concerns; and aggressive prosecutions that look politically motivated, such as the pursuit of medical marijuana offenders in states where the drug has been legalized for that purpose. In May, an 82-year-old nun and two other peace activists were convicted of "sabotage" and other "crimes of violence" for breaking into a nuclear weapons plant to unfurl banners, spray paint and sing hymns. Even many on the political right, traditionally a source of law-and-order-minded support for prosecutors, have raised concerns about "overcriminalization" and the corresponding power the trend has given prosecutors.

Amos Rojas, Jr. named U.S. Marshal for the Southern District of FLorida

The White House Press Release:

Amos Rojas Jr., to be United States Marshal, Southern District of Florida
Amos Rojas Jr. currently works for the Miami-Dade State Attorney’s Office, serving as the Deputy Director of the South Florida Money Laundering Strike Force.  He previously worked for 24 years in the Florida Department of Law Enforcement (FDLE), including serving for eight years as the Special Agent in Charge of the Miami Regional Operations Center of the FDLE.  Prior to joining the FDLE, he served as an Investigative Supervisor in the Miami-Dade State Attorney’s Office, and he has also served on the Huntsville (Alabama), South Miami, and Miami-Dade Police Departments.  He received his undergraduate degree in 1983 from the University of Alabama in Huntsville. 

From the Herald:

Amos Rojas Jr., a former longtime law enforcement officer who works as an investigator for the Miami-Dade state attorney’s office, has been nominated to serve as the U.S. marshal in South Florida.

Rojas, who was nominated by President Barack Obama on Thursday, is the deputy director of the South Florida Money Laundering Strike Force in the state attorney’s office.

Previously, he spent 24 years with the Florida Department of Law Enforcement, retiring as the special agent in charge of the Miami region. Rojas also was a police officer on the Huntsville, Ala., South Miami and Miami-Dade police departments.

A 1983 graduate of the University of Alabama, Rojas must be confirmed by the U.S. Senate before he starts his new position as head of the U.S. Marshals Service in the Southern District of Florida.

Obama, in a statement regarding four new U.S. marshal nominees in Florida, Ohio and Texas, said: “These nominees have spent their careers risking their own safety to protect their fellow Americans.”

Read more here: http://www.miamiherald.com/2013/08/02/3539841/longtime-south-florida-law-officer.html#storylink=cpy

Friday news and notes

1.  The results of the poll from a few days ago:

Would you spend 4+ days in solitary confinement without food, water, or a bathroom for $4 million? Selection   Votes  Yes, but not for less than $4 million  17% 10  Yes, I would do it for anything over $1 million  28% 16  No, but I would for $10 million  14% 8  No, I would never do it for any amount of money  41% 24  58 total  pollcode.com free polls

2.  Congrats to Guy Lewis and Mike Tein (and their lawyer Paul Calli)  -- the bar investigation is closed because there was no PC to proceed.  From the DBR:

 

A Florida Bar grievance committee has found no probable cause to pursue a complaint alleging Miami law partners Guy Lewis and Michael Tein lied about the source of their fees in a wrongful death case.
The Bar also confirmed it has opened an investigation into three of the firm's most vocal litigation opponents: Miami attorneys Bernardo Roman III, Jose "Pepe" Herrera and Ramon Rodriguez.

3.  The U.S. Attorney's Office issued this press release on the results of the pill-mill trial in front of Judge Marra. The headline boasts: "Jury Convicts Two Doctors of Conspiracy to Commit Money Laundering Resulting from Pill Mill Operation in Broward and Palm Beach Counties"   Here's the headline, however, from the Palm Beach Post: "Jury clears two local pill mill doctors of eight overdose deaths, convicts them of money laundering"   The AP headline: "Fla. MDs cleared of most serious pill mill charges:"   The Sun-Sentinel: "Doctors not guilty of most charges in pill mill case"   The blog has discussed USAO press releases before, and for the most part, they have gotten better, but this one seems to be misleading to me.