To Stack or Not to Stack?

 By John R. Byrne

Interesting debate between a dissenting Judge Rosenbaum and the majority (consisting of Judges Newsome and Luck) in a case applying the First Step Act. One defendant-friendly provision in the act limits a court's ability to "stack" 924(c) convictions that flow from one indictment. But it only comes into play if, as of the date of the First Step Act's enactment, "a sentence for the offense has not been imposed."

Of course, the anti-stacking provision would help a defendant who was convicted on multiple 924(c) counts before the the First Step Act was passed but was sentenced after the Act was passed because, in such an instance, at the time the Act was passed, a sentence "has not been imposed." But what about a defendant who was both convicted and sentenced before the Act was passed but then had his sentence vacated? Put another way, can a court treat such a vacated sentence as one that "has not been imposed"?

The majority says "no," noting that the reference to an imposed sentence speaks to the historical fact of a sentence being imposed. In other words, chronology controls. If a defendant was sentenced before the passage of the First Step Act, he/she can't take advantage of the anti-stacking rule, even if that sentence is later vacated. Judge Rosenbaum strongly disagrees, arguing that, once vacated, the prior sentence should be treated as if it doesn't exist (basically, it should be wiped from the chronology). Lots of discussion of textualism as the controlling mode of statutory interpretation. Worth a read.

Hernandez by John Byrne on Scribd

Be glad you didn't clerk for this guy. Sheesh.

 From Bloomberg:

An Alaska federal judge who abruptly resigned last week engaged in an inappropriate sexual relationship with a former law clerk and lied about it to an investigating judicial panel, a Ninth Circuit judicial council said.

Joshua Kindred, a Trump appointee, who sat on the US District Court for the District of Alaska since 2020, “engaged in misconduct pervasive and abusive, constituted sexual harassment, and fostered a hostile work environment that took a personal and professional toll on multiple clerks,” the council concluded in a 30-page order released Monday.

“Judge Kindred’s conduct was not civil, dignified, or respectful—attributes that we expect from a federal judge—and his interactions with his law clerks were abusive, oppressive, and inappropriate,” the order said.

Kindred submitted plans to resign as of Monday in a two-sentence resignation letter posted by the court July 5 that didn’t provide a reason for his departure.

In a Monday release, the Judicial Council of the Ninth Circuit said it had “publicly reprimanded and admonished Judge Kindred for his conduct” and requested that he voluntarily resign. The Ninth Circuit Judicial Council had also certified the matter to the Judicial Conference of the United States to consider impeachment.

“In all respects, this was a serious and sensitive matter,” said Mary Murguia, chief judge of the US Court of Appeals for the Ninth Circuit.

The council’s order, released publicly in a rare move, found that Kindred engaged in what the council described as an “unusually close relationship” with one unnamed law clerk, who later went on to work in the US Attorney’s Office in Alaska.

***

Meantime, Miami's own Jeff Weiner is out with the newest edition of his book, O'Connor's Federal Criminal Criminal Rules & Codes Plus.  It's great for your library: "O'Connor's Federal Criminal Rules & Codes Plus provides the annotated Federal Rules of Criminal Procedure, Federal Rules of Evidence, and more. The book also includes other federal rules, Title 18 U.S.C., selections from the Sentencing Guidelines, and selections from many other U.S.C. titles that provide for offenses or relate to criminal procedure."  

Thinking about making a presentation to the feds? Think twice about it.

Criminal defense lawyers do it every day on behalf of their clients who are being investigated.  

They make presentations to the government, trying to convince them not to file charges.  We always debate whether we should make the pitch and if so, how many cards do we show.  Up until now, it was a tactical decision.  

Not anymore.  

SDNY prosecutors decided they wanted to use the presentation made by the defense (Abbe Lowell, who is a terrific lawyer) in the Senator Menendez case against him.  They contend that Menendez obstructed justice by having his lawyer make a false presentation.  Not only did they indict him for it, they asked the judge if they could use slides from Lowell's presentation.  Shockingly, the judge said yes. 

Really disappointing...

So from now on, defense lawyers are going to need to ask for written confirmation from prosecutors that they will not use the presentation in future proceedings.  

The NY Times covers what happened here:

At the meeting, Mr. Lowell made his presentation “based on what he was told by Menendez,” the document says.

Before the September 2023 meeting, Mr. Lowell again discussed with Mr. Menendez what the lawyer would say, incorporating feedback from Mr. Menendez, the proposed summary says.

Mr. Lowell also made the PowerPoint presentation, titled “Senator Robert Menendez, Presentation to U.S. Attorney’s Office, Southern District of New York, Sept. 11, 2023.”

***

Mr. Lowell said “something along lines if you can tell us more about what you are thinking/where your heads are at, we can do a better job explaining where we (defense) are at,” the memo shows.

The beginning of the meeting, which ran 90 minutes, was cordial and friendly, according to the memo, but toward the end, especially after Mr. Lowell appeared to understand the office “was not going to be asking many questions or show its hand,” the tone shifted. Mr. Lowell seemed unhappy and was “trying to convince” the prosecutors “to talk to him more.”

“In sum, Abbe seemed to want to learn more about whether there were things that he had not given an explanation for, that might bear on charges,” the memo says.

In the dispute over whether the slides from the PowerPoint presentation should be admitted at trial, prosecutors argued that they contained false statements, supporting the obstruction count.

“The jury’s entitled to conclude that falsity was intentional,” a prosecutor, Daniel C. Richenthal, said.

Will you ever make a presentation to prosecutors again? 

For The Defense, S6E3: Judge Andrew Brasher

We are back for Episode 3 of Season 6 with Judge Andrew Brasher.  This interview continues our discussion with other 11th Circuit judges on the show, including Chief Judge Pryor, Judge Rosenbaum, Judge Abudu, and Judge Newsom.  Judge Brasher talks about his judicial philosophy, AI, life as a judge, being appointed at a young age, serving with his mentor and former boss (Judge Pryor) and a whole lot more.  You can access it on Apple, Spotify, or any other platform from our website here.I hope you have a great 4th and enjoy the episode with the terrific Judge Andrew Brasher.

More Justice Jackson surprises?

I noted last week that she dissented in Erlinger, where she not only defended the Sentencing Guidelines but questioned the wisdom of Apprendi.  

And that was just the start -- she also joined the conservative majority in Fischer v. United States, the January 6th obstruction case and wrote her own concurring opinion.  Interestingly, Justice Barrett dissented (she was joined by Kagan and Sotomayor).

Jackson: "Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis and even when the conduct alleged is indisputably abhorrent."

Slice of Miami Trial History

 By John R. Byrne

Happy Friday. Wild Miami story I had somehow never heard about. The murder trial of Candace "Candy" Mossler and her nephew, Melvin Lane Powers. They were accused of having an incestuous affair that ultimately led to Powers killing Candy's husband. The prosecution team was led by none other than Dade County State Attorney Richard Gerstein. I won't spoil the ending. Check out the article here. 

In local news, longtime AUSA Randy Hummel has retired. He had an incredible career, holding several prominent positions in the office. And, more importantly, he's a great person who gave back to our community, including through his critical efforts in support of the Court's CARE court program. He'll be greatly missed. 

“Ladies and gentlemen of the jury, this defendant, a gun toting, drug slinging three time convicted felon . . . .”

That was AUSA Abbie Waxman in her opening closing in United States v. Harrell, No. 1:22–cr– 20245 (SD Fla., Mar. 6, 2023).

Why am I quoting a random trial from 2022?  Because Justice Kavanaugh did as well in dissent in Erlinger v. United States. Erlinger held, per Justice Gorsuch, that the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for purposes of the Armed Career Criminal Act.

In Harrell, the district judge did not bifurcate the trial, allowing the prosecutor to prove up the prior convictions during the trial itself, so Kavanaugh was making the point that maybe Erlinger won't be so beneficial to defendants.  I'm not so sure since that was the only case that was not bifurcated.  

Surprisingly, Justice Jackson also dissented in Erlinger saying she believed Apprendi was wrongly decided.  She seems fully in the Justice-Breyer-we-love-the-guidelines dojo. After all, she clerked for him and served on the Sentencing Commission.

Judge William Pryor rules for the defense

Judge Pryor, like Justice Gorsuch, has been channeling his inner-Scalia -- willing to rule for criminal defendants.  The latest is U.S. v. Harding (joined by Jordan and Brasher), which starts this way:

This appeal requires us to decide whether the district court abused its discretion by admitting evidence of drug trafficking as intrinsic evidence of a charged conspiracy that allegedly ended years earlier in a different federal district. A grand jury in the Southern District of Alabama charged James Harding with conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. At trial, the United States introduced evidence that agents, in a separate investigation, found multiple firearms and almost two kilograms of heroin at Harding’s home in the Northern District of Alabama over two years after the alleged end of the charged conspiracy. The United States offered no evidence linking the seized evidence to other members of the charged conspiracy. The district court admitted the evidence as intrinsic evidence and ruled, in the alternative, that the evidence was admissible as extrinsic evidence under Federal Rule of Evidence 404(b). But the district court rejected Harding’s several requests for a limiting instruction. The jury found Harding guilty of both charges. Because the district court abused its discretion by admitting the evidence as intrinsic and because its alternative ruling that the evidence was admissible under Rule 404(b) cannot be affirmed in the absence of a limiting instruction, we vacate Harding’s convictions and sentence and remand for a new trial. 

Bravo.  We need more judges who don't just knee-jerk for the government in every case.