Federal Criminal Lawyer Blog

Earlier this morning the United States Supreme Court issued a unanimous 9-0 decision, holding that the police engaged in a Fourth Amendment "search" when, without the benefit of a valid warrant, they put a GPS tracking device on a suspect's vehicle. The case is Jones v. United States. This is potentially a huge ruling that we need to assess more fully in the days and weeks to come, but for now, let's look at the decision itself.

Law enforcement officials in the District of Columbia suspected Antoine Jones of being a large-scale drug trafficker. Among other investigative tools, they wanted to put a Global-Positioning-System (GPS) monitor on a vehicle that Jones regularly drove. The officers got a warrant, but messed up and did not put the monitor on the vehicle within the 10-day window authorized by the judge who issued the warrant. As a result, the monitor was put on the vehicle without the benefit of a valid warrant. The GPS monitor tracked Jones' travels for about a month, resulting in evidence that tied him to a large drug stash-house, among other information. This evidence was then used to convict Jones.

All nine justices on the Supreme Court agreed that this was an illegal search under the Fourth Amendment. Although they all reached the same result, there is a big difference between the justices as to the underlying rationale for the decision.

Justice Scalia wrote the majority opinion for himself and four other justices. Scalia basically resurrected the property-based view of the Fourth Amendment, noting that the officers engaged in an old-fashioned common law trespass when they placed the GPS monitor on the vehicle. Such a trespass is always a "search" when accompanied by an intention to obtain information.

Justice Alioto wrote a concurrence for he and three other justices. Alito wanted to retain the "reasonable expectation of privacy" ruling from the seminal Katz v. United States decision. Under Alito's theory, suppression decisions would turn not on who owned property but on whether society currently recognizes that a person has an expectation that certain information would not be exposed to law enforcement. Alito almost always tries to help the prosecution, so his theory would often result in a ruling that no "search" occurred.

Justice Sotomayor sided with Justice Scalia's majority opinion, but her concurrence may be the most prescient part of the whole case. Proving that she is beginning to be the intellectual force on the Court that many predicted, Justice Sotomayor noted that both views may become more important in light of the rapid advance of technology in our modern day world. "GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail abouther familial, political, professional, religious, and sexual associations." She further notes that because it is so cheap to do, the police will resort to such secret electronic monitoring more and more. She ponders whether most people really expect that their government might track their daily movements.

Justice Sotomayor also ponders whether we should re-think the line of cases holding that people abandon their expectation of privacy when they turn property over to a third party. She notes that we expose vast quantities of private information when communicating with a bank, or even using our internet service provider to surf for a new restaurant. She doubts whether most Americans would believe they surrendered their privacy rights in this situation just because they agreed to the ISP's terms of service.

This is a fascinating decision with roots in the past but application for the present and future. We are glad to see the Supreme Court issue a decision that recognizes the importance of personal property rights, privacy, and the need to keep government in check.

Today, by a 7-2 vote, the United States Supreme Court sided with a man on Alabama's death row. The Supreme Court overturned a decision where the Eleventh Circuit held that a death-row inmate should lose his ability to challenge his conviction just because the mail containing an order never got to the out-of-state attorneys then representing him. The case is Maples v. Thomas.

Cory Maples was convicted and sentenced to death in 1997 when represented by two attorneys who operated within Alabama's then-$1,000 limit to pay lawyers for out-of-court preparation prior to a death penalty trial. After the conviction, no local attorneys were assigned to handle his post-conviction challenges to his sentence. As has become common, a big law firm (New York's Sullivan & Cromwell) assigned two associates to work on the post-conviction portion of Mr. Maples' case. These young lawyers enlisted an Alabama lawyer to act as local counsel, as required by local rules and custom. The Sullivan & Cromwell attorneys began formulating an attack as to whether trial counsel were constitutionally effective when representing Maples at the sentencing phase of the trial.

In 2003 the judge handling the post-conviction aspect issued a ruling denying the claims raised by the Sullivan & Cromwell attorneys. Unfortunately, these lawyers had by then moved on to greener pastures, one taking a clerkship with a federal judge, the other getting a position in Europe. The Sullivan & Cromwell mailroom returned the letters as being "undeliverable." The clerk never bothered to check with Sullivan & Cromwell, or contact the personal addresses or phone numbers that the young attorneys had listed when applying for permission to practice in Alabama. The local attorney likewise did nothing.

The time for appealing from the judge's order passed. Someone at Sullivan & Cromwell figured out the problem, and petitioned for permission to file a tardy appeal of that order. From that point forward, Alabama prosecutors successfully argued that Mr. Maples was therefore forever barred from raising his claims. All of the Alabama courts agreed with the prosecutors, as did the U.S. District Judge to whom the matter was assigned.

On appeal to the Eleventh Circuit, Maples made persuasive arguments showing that he did not have an "adequate" method for challenging the failure to let him litigate his claims. More importantly, he demonstrated that the interests of justice demanded that a death sentence should not turn on the performance of mail room employees or clerks, and he should not be prevented from challenging his sentence just because changes of address prevented his lawyers from receiving a court order. As seems to be standard practice in the Eleventh Circuit, that court gleefully denied his claims, pointing to the raft of prosecution-oriented decisions saying that clients can sometimes suffer because of their lawyer's missteps. The majority in the Eleventh Circuit did not seem to care that a man's life was in the balance. Fortunately, Judge Rosemary Barkett on the Eleventh Circuit did care. She penned a strenuous dissent, and her arguments were echoed in the Supreme Court ruling issued today.

In technical terms, today's decision holds that these facts were sufficient "cause" so as to excuse his "procedural default" in not filing a timely challenge to the 2003 order denying relief. But in a broader sense, this ruling stands for the proposition that at least seven justices were able to see the forest for the trees, and would not let a petty and cramped view of justice prevail. Bravo!

In criminal trials throughout the United States, whether here in Atlanta or elsewhere, the Sixth Amendment's Confrontation Clause protects defendants from being convicted based on out-of-court statements by people who never show up to testify. The Confrontation Clause means what it says, our clients can "confront" the evidence against them and prosecutors should not be allowed to put up one person to say what some other person told him or her. However, the Supreme Court's relatively recent decision in Michigan v. Bryant is a step backward and lets prosecutors get convictions even when the accuser never gets on the witness stand.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court ruled that the Confrontation Clause is violated when a prosecutor uses hearsay which is "testimonial," the hearsay is admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial. The Court in Crawford used various formulations of the term "testimonial." Now, the most commonly adopted version defines a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), finding that "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

The basics facts in the recent Bryant case are that police found Anthony Covington in a gas station parking lot. Covington claimed he had been shot by Richard Bryant outside Bryant's house. Covington's story was that he had then driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial.

The Supreme Court used the "primary purpose test" to decide whether Covington's statements were testimonial or nontestimonial. If the "primary purpose" was to investigate a crime, then the statements are "testimonial" and thus inadmissible, unless the declarant gets on the witness stand. On the other hand, if the "primary purpose" of the session was to respond to an emergency, then the statements are nontestimonial, and can later be used by a prosecutor even if the declarant is unavailable.

In applying this test that looks for the "primary purpose", the Court first decided that an objective, and not a subjective view, should be used by judges who are deciding whether a prior statement was testimonial or nontestimonial. According to the Court, it doesn't matter what the officer (or the dying Mr. Covington) thought they were doing. Instead, judges should take an "objective" view of what was going on. Here, the majority decided that the police were responding to an emergency, and not merely trying to investigate a crime. Justice Scalia in his dissent calls this view of the facts a "transparently false ...tale", because in fact the cops and the dying Mr. Convington all were concerned about the same thing: making a case against the guy who had just plugged Covington with bullet holes.

Next, the Court ruled that judges should look to both the Declarant (here, the dying Mr.Covington) and the Interrogator (the 5 cops who kept asking questions like, "Who" "Where" "When" and "How long ago?") when deciding the "primary purpose" of the session. The Supreme Court decided that judges should not look merely to what the person said, but should also see what the questioners did or did not do.

The bottom line here is that the Court's decision in Michigan v. Bryant made it a lot easier for prosecutors to get around the Confrontation Clause. While the decision somewhat reduces the protections offered by the Sixth Amendment, we hope that judges everywhere will zealously guard our rights and not allow wholesale use of out-of-court statements in criminal trials.

We represent a lot of criminal defendants in federal courts, many here in Atlanta but also throughout Georgia, Alabama, Tennessee, Florida and other states. Since 2005, such criminal defendants have had good luck in the United States Supreme Court when challenging various aspects of the Federal Sentencing Guidelines. One more such success took place on March 2, 2011 when the Supreme Court issued its opinion in Pepper v. United States.

Readers will recall that like most criminal defense attorneys who specialize in federal cases, I have railed against the Sentencing Guidelines since their inception in 1987. These mechanical rules turned judges into soulless automatons, who were reduced to calculating various complex formulae when imposing a prison sentence on the human being standing in court. In 2005, the famous Booker decision held that the Guidelines are unconstitutional, and the only way to "save" them was to hold that these rules are no longer mandatory, but are merely "advisory." After Booker, judges began using their new-found freedom to impose shorter sentences than otherwise called for by the Guidelines. In a series of cases in the ensuing years, the Supreme Court ruled that a judge who gives a below-Guidelines sentence should be afforded great deference, and sentencing judges could even impose lower sentences based on policy disagreements with particular aspects of the Guidelines.

Then came Mr. Pepper's case. His judge used this new sentencing freedom to impose a 24-month sentence, far below what the Guidelines called for. The prosecutors appealed, and the Eighth Circuit agreed with them, sending the matter back for a new sentencing hearing. Along the way, Mr. Pepper had completed a lengthy drug treatment program, and got out from the 24-month sentence 3 days after the case was sent back for a new sentencing hearing.

Again, the judge imposed 24 months. This time, the judge looked at how well Mr. Pepper had fared since the first sentencing hearing. The judge noted how Pepper had truly rehabilitated himself, was in college, and had re-established ties with his family. Again, the prosecutors appealed, arguing that such "post-sentencing rehabilitation" could not support a lower sentence. Once again, the Eighth Circuit agreed with the government, sending the case back for a third hearing, and this time snatching the case away from the reasonable judge who had imposed the 24 month term. At the third sentencing hearing, this new judge imposed 65 months and made Mr. Pepper go back to prison. Mr. Pepper's lawyers asked the Supreme Court to look at his case, and he was released from the new sentence when they agreed to review the matter.

In its March 2, 2011 decision, the Supreme Court soundly rebuked the Eighth Circuit. In an opinion written by Justice Sotomayor, the Court noted that there generally are no limits on what a sentencing judge can consider, and post-sentence rehabilitation is clearly a factor that can justify a lower sentence. Along the way, the Supreme Court also chided the U.S. Sentencing Commission for a rule it had created that supposedly prohibited judges from using such post-sentencing efforts to justify lower sentences.

The Pepper decision is one more case showing how federal criminal sentencing has changed. When we stand with our clients, the Guidelines are merely "advisory". A judge is duty-bound to impose a sentence for that person, not just a sentence that is spit out after a complex formula created by a "commission". We have returned to the time when a lawyer can make arguments about his or her client's personal situation. We like representing people, so this trend makes our jobs easier and more enjoyable.

Next Monday, the federal Supreme Court will hear arguments in Pepper v. United States. In this fascinating case, the Court will consider whether judges can take a prisoner’s efforts at rehabilitation into consideration when that prisoner is resentenced. This case is interesting both because the government has changed its stance and because of the uncommon circumstance that Mr. Pepper was resentenced to three additional years in prison after four years of freedom.

Mr. Pepper pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 24 months in prison, although the Sentencing Guidelines range was 97 to 127 months. The government successfully appealed that sentence, but the judge resentenced Mr. Pepper to the same amount of time, in part because of the prisoner’s efforts at rehabilitation following the first sentence. Prosecutors again appealed, arguing that such a consideration was an abuse of discretion. The Eighth Circuit agreed. Upon resentencing by a different judge, Mr. Pepper was ordered to return to prison to serve an additional 41 months.

After successfully appealing Mr. Pepper’s below-guidelines sentence twice, the Department of Justice has switched sides and is supporting Mr. Pepper’s contention on appeal to the Supreme Court that rehabilitation should be taken into account. As reported in this Des Moines Register article, when she was Solicitor General, Justice Kagan sided with Mr. Pepper, arguing that court rules do not prohibit “a court from considering at resentencing a defendant's efforts at rehabilitation undertaken after his initial sentencing.” Rather, a federal law “specifically instructs sentencing courts to consider ‘the history and characteristics of the defendant.’” Justice Kagan will not take part in the Supreme Court’s decision.

The Court appointed a private lawyer as amicus curie to defend the Eighth Circuit’s decision below. The appointment of amici to defend the appellate court’s decision is discussed in this Stanford Law Review note by Brian Goldman, which is summarized here at ScotusBlog.

Briefs and the Eighth Circuit’s decision below are available here.

This Monday the federal Supreme Court issued its opinion in Abbott v. United States, together with Gould v. United States. The Court held 8-0 (Justice Kagan took no part in the decision) that a defendant is subject to the highest mandatory minimum sentence specified in § 924(c) unless another provision of law directed to conduct proscribed by that subsection imposes an even greater minimum. We are disappointed that the Court disregarded the plain language of the statute.

As we discussed in this post when the Court granted certiorari, § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” We read that clause as plainly prohibiting the application of § 924(c) where “any other” greater minimum sentence applies. The government disagreed, arguing that the clause is triggered only when another provision commands a longer term for conduct that violates §924(c).

Gould argued the plain language of the clause: that it applied whenever any count of conviction at sentencing required a greater minimum sentence. Abbott proposed two potential happy mediums: that the minimum sentence “otherwise provided” must be one imposed for the §924(c) predicate crime or, in the alternative, for a firearm offense involving the same firearm that triggered §924(c). The Court rejected all three arguments.

The Court relied on the legislative history of § 924(c), reasoning that when enacting the “except” clause, Congress intended to treat gun possession more harshly.

The opinion in Abbott is available here.

Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held in Davis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.
The petition for certiorari is available here.
The brief in opposition is available here.

The United States Supreme Court announced last month that it will review a case involving the "exigent circumstances" exception to the Constitution's requirement that the police get a search warrant before conducting a search or seizing property. We regularly confront similar matters when we litigate federal cases here in Georgia, Alabama and Florida and when one of these cases is taken up to the U.S. Court of Appeals for the Eleventh Circuit. This case, Kentucky v. King, likely will clear up whether this particular exception to the warrant requirement can apply when the police themselves create the exigency that otherwise mandates that they act before getting a search warrant.

The police chased a suspected drug dealer into a hallway where he could have entered one of two doors. A strong smell of marijuana came from one of the doors. The officers knocked on that door and announced their presence, after which they heard sounds consistent with destruction of evidence. They then broke open the door, discovering drugs and the unfortunate Mr. King inside.

Our Constitution says that it is unreasonable to conduct a search and seizure unless a judicial officer has issued a warrant. Over the years, the courts have created so many exceptions to the warrant requirement that it looks more like Swiss cheese than a rule to protect privacy. The "exigent circumstances" exception means that the police get to break down doors without a warrant if there is some immediate need to act, for example when persons inside are destroying evidence, someone inside needs immediate help, or there is an immediate danger to the police coming from inside the residence. However, over the years the police have gotten smart and often create the exigent circumstance that lets them get around the warrant requirement. The courts have reacted to these situations in a variety of ways.

In Kentucky v. King the State lost in the lower courts when the Kentucky Supreme Court said that the officers should have reasonably anticipated that their knocking would goad those inside into making noise similar to destroying evidence, thus creating the very exigency that authorized the officers to enter without a warrant. The State explained in its Petition for a Writ of Certiorari that there are at least five different tests being applied by the various lower courts when dealing with similar situations.

We look forward to seeing how the U.S. Supreme Court rules, which likely will not occur until next year. The opinion below and briefs supporting and opposing the petition for certiorari are available here.

In this post last week, we announced the Supreme Court’s decision in Skilling v. U.S. The Court held that 18 U.S.C. § 1346, the honest services law that the government has been using to prosecute nearly everything as a federal crime, applies only to bribery and kickback schemes.

The honest services fraud statute simply defines “scheme or artifice to defraud” as used in the mail- and wire fraud statutes to “include a scheme or artifice to deprive another of the intangible right of honest services.” Congress enacted this statute quickly after the Supreme Court, in McNally, held that the fraud statutes were “limited in scope to the protection of property rights.” Congress intended to incorporate pre-McNally case law that had recognized fiduciary duties as intangible rights to honest services and a breach of those duties as fraud.

The majority’s rationale for limiting the honest services fraud statute to only bribes and kickbacks was that such cases constituted the “core” of pre-McNally honest services fraud cases and that statutes should be construed, where possible, rather than invalidated. Because, the Court said, circuit conflicts and disagreements regarding honest services fraud cases were primarily outside the bribery and kickback scheme cases, limiting the application of the statute to those cases would avoid vagueness troubles.

The government argued that undisclosed self-dealing cases should be included, but the Court held that the relative infrequency of and intercircuit inconsistencies regarding such cases disallowed the statute’s application to undisclosed self-dealing. In a lengthy footnote, the Court indicated numerous questions Congress would need to clearly address to include such cases in the statute.

Justice Scalia, an open critic of the honest services fraud statute, disagreed with the majority’s limitation of honest services fraud to bribery and kickback schemes. In his concurring opinion, he argued that the Court had no precedent for “paring down” a statute to save it from invalidity and that, even with the limitation, the statute remains unconstitutionally vague. Although the Court clarifies what acts constitute a breach of the “honest services” obligation, the statute and case law do not clearly determine the character of the fiduciary capacity to which the restriction applies. What is the source of fiduciary obligations; who qualifies as a fiduciary; and is anything beyond a breach of fiduciary duty necessary for conviction?

As Justice Scalia recognized, the majority's decision fails to resolve a host of issues surrounding the honest services doctrine. For this reason, litigation surrounding the meaning of this amorphous doctrine will not end with the Court's decision in Skilling. Also, by extending the Yates decision to cases on direct appeal, the impact of the favorable ruling in Mr. Skilling's case is yet to be determined.

While we are relieved that the previously outrageous reach of this statute has finally been limited, we are disappointed that Justice Scalia’s analysis did not gain the support of the majority of the Court.

Earlier this month, the Supreme Court announced its decision in Dolan v. United States, resolving a circuit court split. This decision abrogates U.S. v. Maung, a 2001 Eleventh Circuit case that held that a federal court imposing a criminal sentence lacks the authority to enter a restitution order after the 90-day deadline has expired. The Supreme Court held that, at least where the sentencing court clearly advised before the deadline that it would order restitution, that court may order the specific amount after the deadline has expired.

The majority opinion by Justice Breyer is available here, along with a dissenting opinion by Chief Justice Roberts, joined by Justices Stevens, Scalia, and Kennedy.

This morning, the United States Supreme Court issued its opinions in three honest services fraud cases: Skilling, Black, and Weyhrauch. We have previously discussed these cases here (discussion of cases and background of honest services fraud,) here (Skilling,) here (Black), and here (Weyhrauch.) In Skilling, the Court limited the federal criminal honest services fraud statute to only bribery and kickback schemes. Based upon that opinion, the Court reversed in Black and Weyhruach. The Court also held that Jeffrey Skilling of Enron fame was not denied a fair trial due to publicity and community prejudice.

We will provide analysis of these opinions next week. In the meantime, the opinion in Skilling is available here; the opinion in Black is available here; and the single-sentence per curium opinion in Weyhrauch is available here.

Last Monday, the Supreme Court of the United States reversed the Eleventh Circuit’s decision in Holland v. Florida. The Court held, as have all Courts of Appeal, that the AEDPA’s statute of limitations in habeas corpus cases is subject to equitable tolling. The Court further held that the Eleventh Circuit’s per se rule regarding when such equitable tolling applies is “too rigid.” The Court reversed and remanded without explaining a precise standard for when equitable tolling should apply.

In determining that equitable tolling is available, the Court reasoned that the AEDPA’s statute of limitations is nonjurisdictional and such statutes of limitations are normally subject to a rebuttable presumption in favor of equitable tolling. In addition, equitable principles have traditionally governed the law regarding habeas corpus. The Court distinguished cases in which nonjurisdictional statutes of limitations were interpreted as not subject to equitable tolling.

The Court then explained that, for equitable tolling to be available, a petitioner must show diligence in pursuing his rights and some extraordinary circumstance that prevented timely filing. Emphasizing that equity requires decisions on a case-by-case basis, flexibility, and avoidance of mechanical rules, the Court pointed out that equity’s intent is relief from hardships resulting from “evils of archaic rigidity.”

The Court viewed the Eleventh Circuit’s per se rule as “difficult to reconcile with more general equitable principles.” The Eleventh Circuit had held that an attorney’s unprofessional conduct, even if grossly negligent, could not justify equitable tolling without bad faith, dishonesty, divided loyalty, mental impairment, or the like.

The Court admitted that a “garden variety claim of excusable neglect does not warrant equitable tolling,” but stated this case involved more serious instances of attorney misconduct, that may well qualify as extraordinary circumstances. The Court remanded to the Eleventh Circuit on this question. The Court also commented that Holland had been reasonably diligent in pursuing his rights, although that issue was not part of the question presented.

The opinion in Holland v. Florida is available here. Justice Alito issued a concurring opinion, in which he further analyzed the appropriate standard for when equitable tolling should be available. Justice Scalia issued a dissent. In Part I he explained that equitable tolling should not be available at all, then the rest of his dissent explained why Holland should not receive relief, even if equitable tolling did apply. Justice Thomas joined his dissent, except as to Part I. The concurring and dissenting opinions are also available at the link above.

This morning, the United States Supreme Court issued its opinion in Barber v. Thomas. In a 6-3 decision, the Court held that the calculation method used by the Bureau of Prisons (BOP) to determine the amount of “good time” earned on federal criminal sentences is lawful. The Court rejected two other methods for calculating good time, one proposed by federal prisoners and one suggested by the dissenting justices. As a result of this holding, the taxpayers will be forced to continue paying for prisoners longer than Congress may have wanted.

This case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. … [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

Two federal prisoners argued that the BOP has been interpreting the good time provision incorrectly, resulting in prisoners serving longer sentences than intended by Congress. The Court, using an example 10-year sentence with maximum good time credits earned, evaluated three distinct methods of calculating good time: the method currently used by the BOP, the method proposed by the prisoner petitioners, and a third method supported by the dissent.

The BOP’s method, which the Court upheld, interprets “term of imprisonment” in the statute to mean “entire imposed sentence” in some places, but “time actually served” when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner’s release date. In the Court’s 10-year example, the prisoner receives 470 days of good time credit under this method.

The petitioners’ method is the most simple, interpreting “term of imprisonment” as “entire imposed sentence” throughout the statute. The petitioners would have BOP add 54 days of good time credit for each year in the imposed sentence. For a sentence of 10 years, the prisoner would receive 540 days of good time credit. Both the majority and dissenting justices rejected this method as irreconcilable with the statute.

The dissent’s method interprets “term of imprisonment” consistently as “the span of time that a prisoner must account for to obtain release.” This method would count each year’s good time credit toward the next year, so some “years” of a prisoner’s term may be completed in less than 365 days. In the 10-year example, this approach gives a prisoner a maximum of 533 days of good time credit.

Although the dissent’s approach is the most consistent use of the statutory text, makes the most logical sense, and would save taxpayers “untold millions of dollars,” the majority “conclude[d] that the Bureau’s method reflects the most natural reading of the statute.”

Justice Breyer delivered the opinion and Justice Kennedy issued the dissenting opinion, joined by Justices Stevens and Ginsburg. The opinion and dissent in Barber v. Thomas are available here.

The United States Supreme Court decided two important federal criminal cases yesterday. We discussed the reasonable opinion in U.S. v. Carr, a SORNA case, in this post yesterday. We must now address the disappointing decision in Berghuis v. Thompkins, which we briefly explained in this post last October.

The Court divided along traditional ideological lines, with Justice Kennedy issuing the majority opinion joined by the conservative bloc and Justice Sotomayor writing a lengthy dissent for the liberal justices. The majority held, counter-intuitively, that a person must make an unambiguous statement to invoke his right to remain silent.

In this case, Mr. Thompkins was in custody, awaiting transfer to another state. He was seated in a hard, straight-backed chair in a small room. With the exception of declining a peppermint and commenting on his chair’s discomfort, he remained silent for nearly three hours of interrogation, until asked whether he believed in God. He said, “Yes.” and began to cry. When asked if he prayed, he again said, “Yes.” He was then asked if he prayed to God for forgiveness “for shooting that boy down.” Again, he said, “Yes,” and looked away. He refused to sign a Miranda waiver form or make a written statement.

The Court analogized the issue to the Miranda right to counsel, which must be invoked unambiguously and unequivocally. The majority opinion noted a desire to avoid difficulties of proof and provide guidance to officers. In addition, the Court held that Thompkins waived his right to remain silent because he chose to speak and there was no basis to conclude that he did not understand his rights. Police are not required to rewarn suspects and, the Court held, nearly three hours of interrogatory monologue in a straight-backed chair did not amount to coercion.

Both the majority opinion and dissent in Berghuis v. Thompkins are available here.

SCOTUSblog rounded up comments from and links to articles regarding the controversial opinion in this post this morning.

This morning the United States Supreme Court held that 18 U.S.C. § 2250, a part of of the Sex Offender Registration and Notification Act (SORNA), does not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date in July 2006. This case resolves a circuit court split in which the Eleventh Circuit, which hears appeals from federal cases in Georgia, Florida, and Alabama, took the opposite view.

In an opinion by Justice Sotomayor, the Court explained that the three elements of Section 2250 (requirement to register, interstate travel, and failure to register) “must be satisfied in sequence.” The interpretation that the statute does not impose liability unless a person travels and fails to register after becoming subject to SORNA’s requirements accords with the text of the statute, which sets forth the travel requirement in the present tense. The Court also noted that Section 2250 is just one of several provisions of SORNA and that SORNA’s overall structure also indicates that Section 2250 should be limited to its specific purpose, rather than expanded to tackle all of SORNA’s broader intent.

The Court noted that because Section 2250 liability could not be predicated on pre-SORNA travel, the Court needed not address whether the statute violated the Ex Post Facto Clause.

The Court’s opinion, as well as a concurring opinion by Justice Scalia and a dissent by Justice Alito and joined by Justices Thomas and Ginsburg, is available here.

This morning the United States Supreme Court issued three opinions.

In Graham v. Florida, the Court held that the Eighth Amendment’s Cruel and Unusual Punishment Clause does not permit a juvenile offender to be sentenced to life in prison without the opportunity for parole for a nonhomicide crime.

Justice Kennedy wrote the opinion, joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor. Chief Justice Roberts concurred only in the judgment. Justice Stevens filed a concurring opinion, joined by Justices Ginsburg and Sotomayor. Justice Thomas filed a dissenting opinion joined by Justice Scalia and in part by Justice Alito, who also filed a dissent. The opinions in Graham v. Florida are available here.

In U.S. v. Comstock, the Court upheld 18 U.S.C. § 4248, which allows a federal district court to order the civil commitment of a mentally ill, sexually dangerous prisoner after the date he would otherwise be released.

Justice Breyer delivered the opinion, joined by Chief Justice Roberts and Justices Stevens, Ginsburg, and Sotomayor. Justices Kennedy and Alito filed concurring opinions. Justice Thomas dissented, joined in part by Justice Scalia. The opinion in U.S. v. Comstock is available here.

In Abbott v. Abbott, the Court held that a parent has a right of custody under the Hague Convention by reason of that parent’s ne exeat right, which is the authority to veto the other parent’s decision to leave the child’s country of residence.

Justice Kennedy wrote the opinion and was joined by Chief Justice Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor. Justice Stevens dissented, joined by Justices Thomas and Breyer. The opinion in Abbott v. Abbott is available here.

This week, the Supreme Court held that 18 U.S.C. § 48, which criminalized the creation, sale, or possession of depictions of animals being harmed in illegal ways for commercial gain, is unconstitutionally overbroad. Although it had an exemption clause for portrayals with “serious religious, political, scientific, educational, journalistic, historical, or artistic value” the statute criminalized a significant amount of speech protected by the First Amendment.

The statute defines “depictions of animal cruelty” as including portrayals of animals being “wounded or killed,” among other actions with more cruel connotations. The Court held that, because “wound” and “kill” are not ambiguous, they may not be interpreted in light of neighboring words that imply cruelty. In addition, “depictions of animal cruelty” include any wounding or killing that is illegal where the depiction is sold or possessed, regardless of whether that action was legal where it occurred.

Thus, depictions of any animal being harmed legally could be criminalized if possessed or sold in a place where such actions were not legal. The prime example of criminalized protected speech was hunting magazines and television shows that are distributed or aired in Washington, D.C., where all hunting is illegal. It could also criminalize representations of the treatment of livestock where states have different agricultural regulations.

The legislative intent of this statute was to criminalize so-called “crush videos,” in which helpless animals are tortured and killed by women’s feet and which are enjoyed by some fetishists. The prosecution argued that prosecutorial discretion would limit the government’s use of this statute to cases of “extreme cruelty.” The Court noted, however, that when the statute was enacted, the Executive Branch announced that it would limit prosecutions to portrayals of “wanton cruelty to animals designed to appeal to a prurient interest in sex,” i.e. crush videos. In this very case, the prosecution went beyond that initial declaration of prosecutorial restraint: Mr. Stevens was prosecuted for selling videos of pit bulls in dogfights and attacking farm animals, where such conduct was allegedly legal.

We should emphasize that the Court began its discussion by acknowledging that the underlying conduct of animal cruelty was not at issue here. Cruelty to animals is still illegal. Stevens addressed only the First Amendment principles involved in the depictions of animals being harmed. According to PETA, a more narrowly-tailored statute is already in the works.

The opinion is available here.

Last week the Supreme Court decided Berghuis v. Smith in favor of the government. The Court held that criminal defendant Smith was not entitled to federal habeas corpus relief on his claim that the jury selection process had violated his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community.

Because Smith was challenging his state conviction in a federal habeas corpus petition, under AEDPA, the federal courts could grant relief only if the state court decisions involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. The Supreme Court unanimously held that Smith had not met this burden under the law established by Duren v. Mississippi in 1979.

Under Duren, to establish a prima facie violation of this Sixth Amendment right, a defendant must show:
(1) that the group alleged to be excluded is a distinctive group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

The dispositive issue in Smith, and in Duren, was whether underrepresentation was due to systematic exclusion. The Court noted that Smith lacked evidence showing that the jury-selection process caused underrepresentation. He failed to compare the representation in the circuit court of his trial with that of the state district court or federal district court for the same region. Thus, the Court held that the state supreme court decision denying the claim was consistent with Duren.

The unanimous opinion, written by Justice Ginsburg, is available here. Justice Thomas filed a concurring opinion to express that he "would be willing to reconsider [the Court's] precedents articulating the "fair cross section" requirement."

Yesterday the federal Supreme Court decided Padilla v. Kentucky. The Court recognized its “responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel. To satisfy this responsibility, [the Court held] that counsel must inform her client whether his plea carries a risk of deportation.”

Until yesterday’s decision, the lower federal courts almost unanimously held that lawyers are required to tell their clients about only ‘direct’ consequences of pleading guilty. Deportation (now called “removal”) has long been seen as a potential collateral consequence of certain convictions. While professional norms have long required such advice, until Padilla, failure to so advise did not meet the Strickland test for ineffectiveness. The Court held that the direct/collateral distinction is inappropriate in a Strickland claim concerning deportation risk.

The Strickland test has two prongs. First the Court must decide whether the attorney’s representation “fell below an objective standard of reasonableness.” The second prong, prejudice to the defendant, was not at issue in Padilla because the lower courts had not reached it. This second prong may be difficult to satisfy in many of these cases because many states require trial courts to advise defendants who plead guilty of potential immigration offenses. Here in Georgia, in 2000 trial courts began advising defendants that a guilty plea “may have an impact” on the defendant’s immigration status. However, Padilla may be a useful tool for challenging certain guilty plea convictions in Georgia prior to 2000.

The opinion, written by Justice Stevens, is available here. Justice Alito issued a concurring opinion, joined by Justice Roberts. They would have limited the rule to prohibit only completely incorrect legal advice. Justice Scalia dissented, joined by Justice Thomas, writing that the Sixth Amendment guarantees the defendant a lawyer only for the defense of the criminal case and not for advice regarding any collateral matters.

The Supreme Court has granted certiorari in Harrington v. Richter, a federal habeas corpus case out of the Ninth Circuit. The Ninth Circuit held that Richter was prejudiced by his defense lawyer’s unreasonable failure to investigate and present expert testimony on blood evidence and that the state court’s determination that he was not denied effective assistance of counsel was an unreasonable application of clearly established federal law.

The question presented is whether the Ninth Circuit denied the state court the deference mandated by AEDPA and impermissibly enlarged the Sixth Amendment right to counsel by elevating the value of expert opinion testimony to virtually always require criminal defense attorneys to produce such testimony. In addition, the Court asked the parties to brief whether AEDPA deference applies to a state court’s summary disposition of a claim, including under the Strickland test for ineffective assistance of counsel.

The facts of this case would make for an interesting episode of CSI. Both parties agreed that two defendants, Richter and Branscombe, socialized for several hours in Johnson’s house with Johnson and Klein until 2:30 a.m., when they left but Klein decided to spend the night. The prosecution and defense presented divergent theories at trial of the events occurring later that morning, when Klein was killed and Johnson received gunshot wounds.

The central dispute between the prosecution and the defense was Klein's location at the time he was shot. Blood-spatter evidence could have confirmed either the defense’s or the prosecution’s theory of the case, but the state conducted an inadequate forensic investigation. Had Richter’s lawyer chosen to consult a forensic expert for the defense, that expert could have assisted him in evaluating the testimony of the prosecution’s experts or guided him in developing effective cross-examination of those witnesses.

The Ninth Circuit’s lengthy opinion is available here.
The briefs are available at the following links:
Petition for Writ of Certiorari
Brief in Opposition
Reply to Opposition

This morning the Supreme Court issued its opinion in Bloate v. U.S. The Court resolved a circuit court split, holding that additional time granted to criminal defendants to prepare pretrial motions is not automatically excludable from the federal Speedy Trial Act’s 70-day limit under subsection (h)(1). The Eleventh Circuit Court of Appeals, which sits here in Atlanta, previously held the opposite, so this decision marks a change in the law of this circuit. We explained the issues in this case and the Eleventh Circuit case in this post last year.

The government argued that defendants could “lay a trap” for judges by requesting time to prepare motions. The Court noted that a district court judge may still exclude such time from the Speedy Trial Act under subsection (h)(7) if it finds “that the ends of justice served by [a continuance for time to prepare pretrial motions] outweigh the best interest of the public and the defendant in a speedy trial.” The judge need only place these reasons on the record.

The Speedy Trial Act is available here.
The Court’s opinion is available here. The majority was written by Justice Thomas. Justice Ginsburg filed a concurring opinion and Justice Alito filed a dissenting opinion, in which Justice Breyer joined.

This week, the United States Supreme Court handed down its opinion in Maryland v. Shatzer. The case examined the parameters of the protections afforded by Edwards v. Arizona regarding reinterrogation of a criminal suspect after he has requested counsel. The court held that 1) a break in custody lasting more than two weeks between attempts at interrogation is sufficient to avoid the coercive pressures against which Edwards protected and 2) a return to the general prison population amounts to a break in custody for the purposes of this rule.

Justice Scalia delivered the opinion of the Court. Justices Thomas and Stevens each concurred in the judgment but disagreed with the 14-day break in custody rule. Justice Thomas would prefer Edwards be limited to “the circumstances present in Edwards itself” whereas Justice Stevens did not find the bright-line rule to provide enough protection against coerced confessions. We agree with Justice Stevens.

The facts of the case involve allegations of sexual child abuse against Mr. Shatzer while he was incarcerated for another offense. In 2003 a detective attempted to interview Mr. Shatzer about sexual abuse of his 3-year-old son, but Mr. Shatzer declined to speak without an attorney. The investigation was closed.

Two and a half years later, another detective was assigned, who interviewed the son (who had somehow aged 5 years in that period) and acquired more details. That detective then interrogated Mr. Shatzer after obtaining a Miranda waiver. Mr. Shatzer had been transferred to another prison, but had been incarcerated for the entire time. Detectives later administered a polygraph exam. Mr. Shatzer failed, then became upset and incriminated himself.

In the majority opinion, Justice Scalia explained the rationale behind Miranda and Edwards, describing the Edwards protections as “not a constitutional mandate, but judicially prescribed prophylaxis.” He explained that in cases following Edwards, the rule had been applied where the suspects had been in continuous custody without a chance to regain “a sense of control or normalcy after they were initially taken into custody.” Due to the diminished benefits and increased costs of extending Edwards, an extension of Edwards without time limits is not justified. Justice Scalia seemed to choose a 14-day bright-line rule arbitrarily, assuming that two weeks is long enough to “shake off any residual coercive effects of his prior custody.”

In his concurring opinion, Justice Stevens expressed his qualms that “[t]he Court’s analysis today is insufficiently sensitive to the concerns that motivated the Edwards line of cases.” He disagrees with the assertion that Edwards is not a constitutional command because the Fifth Amendment is the source of that protection. He also worries that allowing reinterrogation after only 14 days “disregards the compulsion caused” by a subsequent interrogation of a suspect who has requested a lawyer after being told that one would be provided for him, but have not received counsel. That suspect is likely to feel that the police lied, so he does not really have any right to a lawyer. Justice Stevens suggested a concrete event, such as police providing counsel, rather than or in addition to the time-based rule.

The other issue decided in this case was whether Mr. Shatzer was “in custody” for purposes of the break-in-custody rule. Although he was incarcerated, the Court determined that a return to the general prison population amounts to a “return to their accustomed surroundings and daily routine” with “the degree of control they had over their lives prior to the interrogation.” The Court also assumes that the prisoner suspect understands that the interrogator has no power to increase or decrease his time served. Because of those circumstances, a return to prison qualified as a break in custody.

We believe Justice Stevens took a more reasonable approach to this issue in his concurring opinion. He recognizes that “[a] prisoner’s freedom is severely limited, and his entire life remains subject to government control,” which is “not conducive to shaking off any residual coercive effects of his prior custody. Nor can a prisoner easily seek advice from an attorney, family members, or friends [as emphasized in the majority opinion,] especially not within 14 days; prisoners are frequently subject to restrictions on communications.” In addition, “[p]risoners are uniquely vulnerable to the officials who control every aspect of their lives; prison guards may not look kindly upon a prisoner who refuses to cooperate with police. And cooperation is frequently relevant to whether the prisoner can obtain parole.”

While Justice Stevens agreed that the 2½ year period between interrogations is a basis for treating the second interrogation as no more coercive than the first, he acknowledged that “[n]either a break in custody nor the passage of time has an inherent, curative power.” We agree. Unfortunately, the majority held otherwise.

The full opinion is available here.

Tom Goldstein at SCOTUSblog discussed his predictions for the future of the Supreme Court yesterday. He predicts that Justice Stevens will retire, but Justice Ginsburg will remain on the bench. His entry includes an in-depth analysis of potential nominees to replace Justice Stevens, concluding that Solicitor General Elena Kagan is the most likely choice for the Obama Administration.

Read the full post here.