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July 21st, 2009UncategorizedThe New York Times is reporting today the imminent release of a study conducted by the National Academy of Sciences, at the request of Congress, reviewing the methodology employed by many crime labs across the country. The article states that "the National Academy wrote that the field suffered from a reliance on outmoded and untested theories by analysts who often have no background in science, statistics, or other empirical disciplines." The news report also states that "the National Institute of Justice, a research arm of the Justice Department, tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication." Obviously this will be huge news when it is actually released, and defense attorneys should be looking for its release in the near future. Unfortunately the Times does not give any indication when that release might actually occur. -
July 20th, 2009UncategorizedSue Carlton published a column in the St. Petersburg Times today regarding Florida's policy to have individuals performing executions wear hoods and hide their identities. I found her column well worth reading.
Facts of note on Florida executioners - the executioner need only be 18, is appointed by a warden, and makes $150 per execution. Ah, the selectee must also "get training." What does that mean? There are horror stories in Florida (and other states) about botched executions, about men's heads on fire or failed IVs or improper drug application that caused an execution to take significantly too long. Just how much training is required? Do they get pyschological training to assure they know exactly what they are doing?
It makes me ill to think of an 18 year old taking the life of another human being for the mere sum of $150. OK, well, I admit, it makes me sick to think of an 18 year old taking a human life at all, but that "service" to the State is only worth $150?
Carlton indicates in her column that, every time an execution looms or the death penalty is in the news, the Florida Department of Corrections receives at least a dozen requests by email to become an executioner. I have to wonder - where does this overwhelming desire to kill someone stem from? Do the volunteers have some sort of sick fantasy to let go of that the legality of the State proceeding allows them to do without consequence? I suppose if he performed more than one, it might qualify him (or her) as a serial killer. Does that make someone feel more important? More "god" like? Shouldn't the executioner have to look his victim in the eye before he kills him?
I understand the State's concern about protecting the executioner from retaliation, but if the person is willing to perform the act and believes that it is moral and proper to do so, then that person should be willing to identify his or herself - at the very least, to the life he or she is ending. -
July 19th, 2009UncategorizedIn U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).
The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment. The Court found no Fourth Amendment violation. The police officer had reasonable suspicion to stop Lopez-Garcia’s vehicle based on its observation that he seemed to have been engaging in a drug transaction. [In a footnote, the Court noted that the government had not demonstrated that the "particular circumstances" showed a violation of the Georgia traffic code, and thus a traffic violation alone did not justify the stop]. The Court also found that probable cause supported Lopez-Garcia’s arrest, because the consensual search of the vehicle uncovered a drug substance and paraphernalia. The Court added that even if there had been a Fourth Amendment violation, the statements Lopez-Garcia later gave were "too attenuated from his arrest to be regarded as fruit of the poisonous tree." The statements were made the day after the arrest. The arrest and the questioning were conducted by different individuals. The arrest was not motivated by the ulterior purpose to determine Lopez-Garcia’s immigration status.
The Court also rejected the argument that Miranda required suppression of the statements. The parties did not dispute that Lopez-Garcia was in "custody." However, the Court found that no "interrogation" occurred, because the law enforcement agent who questioned Lopez-Garcia would not have reasonably known that his questions would elicit a self-incriminating statement. The questioner was not aware that Lopez-Garcia had previously been deported, nor that he had entered the country illegally. Therefore, he would not have thought it "especially likely" that Lopez-Garcia would confess to having re-entered the country illegally.
The Court further rejected the argument that the "fruit of the poisonous tree" doctrine required suppression of a second Mirandized confession Lopez-Garcia gave 10 days after his first confession. These later statements were "far too attenuated" from the earlier ones to have been tainted by them. In addition, the Court rejected a Missouri v. Seibert challenge to the second confession, finding that the absence of Miranda warnings in a first interview was not purposeful, but merely reflected the fact that the interrogator did not anticipate that his questions would result in self-incriminating statements.
The Court rejected the argument that Lopez-Garcia’s immigration files should have been suppressed. The Court again found the "fruit of the poisonous tree" doctrine inapplicable. It also noted that identification information is not excludable, citing its recent decision in U.S. v. Farias-Gonzalez (identity evidence not subject to exclusionary rule).
Turning to sentencing, the Court affirmed the imposition of a 16-level sentence enhancement based on a prior conviction for a felony firearms offense under Georgia law. The Court found that the Georgia offense was the equivalent of an 18 U.S.C. § 924(c) violation. The Court noted that the nexus of the firearm to a drug trafficking offense in Lopez-Garcia’s firearm offense would have satisfied the "possession" prong of the § 924(c) offense. The Court rejected Lopez-Garcia’s U.S. v. Shepard challenge to the district court’s fact-finding on this point, noting that the district court relied on the PSI, and the PSI information regarding the prior Georgia offense’s nexus to drug trafficking was undisputed. Without deciding whether reliance on a PSI is always justified, the Court, citing U.S. v. Hedges, noted that when statements in a PSI are undisputed, a sentencing court is permitted to rely on them despite the absence of supporting evidence. -
July 18th, 2009UncategorizedMcKnight v. Torres, No. 08-55459 (4-20-09). Can a plea agreement be lost in translation? The defendant entered into a plea agreement with the US Atty regarding ecstasy trafficking. The defendant was also wanted by the French, and France requested extradition. The defendant's plea agreement with the US Atty granted immunity for his cooperation proffer. The language, though, explicitly stated it was for any prosecution by US Attorneys. The defendant thought this would apply to the French, but the information was handed over. Defendant brought this habeas challenge, arguing that the US Attorney acted in bad faith. Not so, said the 9th (Hawkins joined by Berzon and Clifton). The plea's language explicitly stated that it only bound US Attorneys. The 9th goes on to warn US Attorneys that they should expect in extradition cases and in pleas that language will now be requested to cover foreign jurisdictions.
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July 17th, 2009UncategorizedIn U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States.
The sentencing judge described the conduct as "horrific." The Guideline sentence was 360 months. The statutory maximum was also 360 months; the minimum was 180 months. The district court correctly computed the guideline sentence, and directly discussed the § 3553(a) factors on the record.
Affirming the sentence, the court noted that a 17-1/2 year sentence was not "a trifle." Further, the defendant was 50; thus the consequences of the sentence were "severe." A life term of "rigorous" supervised release was imposed. The sentence was "years beyond" the statutory minimum. The Court stated: "If we were responsible for sentencing Defendant in the first instance, we might have imposed a different sentence: we clearly believe that sentences other than the one actually imposed might also be appropriate. But we must respect the district court as the sentencer, and we accept that the sentence imposed by the district court is within the outside borders of reasonable sentences for this case. . . . The sentence must be affirmed." -
July 16th, 2009Uncategorized
In United States v. Ford, No. 08–5091 (6th Cir. Mar. 18, 2009), the panel of Judges Merritt, Cole, and Sutton found that a walkaway escape is not a crime of violence. Use of force is not an element of Kentucky’s second-degree escape offense. Analysis therefore proceeded under the "otherwise clause" of 4B1.2(a)(2). Court used some good language. For example, "[t]hat an offense presents a risk of physical injury to others, as Begay demonstrates, does not by itself suffice to show that it is a crime of violence." Court goes on to note that "all walkaway offenders have engaged in purposeful conduct." But there is no requirement of purposeful violence or purposeful aggressiveness. Court points out that "[t]he ‘otherwise’ requirement demands not just that the offense involve a similar risk of injury but also that it involve a similar type of crime." Finally, the Court finds that if any doubt remains the benefit of that doubt must go to the defendant under the Rule of Lenity. Court still notes the Shepard issue, which is an issue (see Mr. Strong’s post of March 16, 2009). The issue is a little different, as this offense is not a "reckless" one, but the analysis still seems unsettled in the Shepard area. -
July 15th, 2009Uncategorized
A report released by the Innocence Project shows that nearly five years after Congress passed legislation to ensure that forensic negligence and misconduct are properly investigated, the law is largely being ignored due to a lack of federal guidance and, as a result, serious problems in crime labs and other forensic facilities nationwide have not been addressed.
The 84-page report lays out key problems with the U.S. Department of Justice’s administration of the program for the last several years and outlines improvements the Obama Administration can make going forward. The report focuses on the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities – as long as those grant recipients have proper oversight mechanisms in place to handle forensic problems.
Specifically, federal law says that as a condition of receiving the federal money, applicants must designate independent, external government entities to review allegations of serious negligence or misconduct affecting the quality of forensic analysis and that those entities must have a process in place for handling such allegations. The report released today includes the results of an Innocence Project survey of the oversight entities designated by grant recipients – and the survey results show that that the vast majority of them are not in compliance with federal law, based on the Innocence Project’s analysis.
“Congress wanted to ensure that serious forensic negligence or misconduct was properly investigated. Instead, the Bush Administration’s Justice Department essentially ignored federal law and let serious problems in crime labs go unaddressed,” said Stephen Saloom, policy director at the Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University. “The most serious consequence of the failure to enforce proper oversight is the risk to public safety when innocent people are convicted and perpetrators of crime remain free.”
The Innocence Project, which testified before a responsive Congress multiple times on the Department of Justice’s inadequate enforcement of the Coverdell grant program, released the new report to provide a clear roadmap for how the Obama Administration can improve the management of the program.
“With increased attention on making sure that taxpayer money is spent wisely and that the criminal justice system relies on the best evidence possible, this report outlines what has gone wrong in enforcing forensic oversight requirements and how it can be made right,” Saloom said. In order for the Coverdell grant program to operate as Congress intended, the new Administration must manage the program properly and give grant applicants the tools they need to comply with federal laws, says the report, titled “Investigating Forensic Problems in the United States: How the Federal Government Can Strengthen Oversight Through the Coverdell Grant Program.”
The report includes a survey and analysis by the Innocence Project which found that only 13% of the oversight entities meet all of the requirements under federal law – that they be external and independent, and that they have an appropriate process in place for handling investigations.
The Innocence Project compiled and analyzed data on 256 relationships between Coverdell grant applicants in 2007 and oversight entities they designated (some applicants designated multiple oversight entities, and some oversight entities were designated by multiple applicants, so the survey analyzed every relationship). Of the 256 relationships, 234 could be judged on their independence, externality or their investigative process. Of those that could be analyzed, only 32% of the oversight entities designated by Coverdell grant recipients are both independent and external, according to the survey. Among those that are both independent and external, only 40% also have an appropriate process in place to conduct investigations.
Since the oversight mechanism was passed by Congress nearly five years ago, all 50 states have received federal funding for crime labs and other forensic facilities; in all, an estimated $100 million has been dispersed. Approximately 15 allegations of serious negligence or misconduct affecting the quality of forensic analysis have been filed, which the Innocence Project said is a surprisingly low number that can be attributed to the Justice Department’s inadequate administration of the program (because people do not understand how to file allegations and the proper oversight mechanisms and process aren’t in place to handle them).
“When only 13% of applicants comply with federal law, there are serious problems that need to be fixed,” said Saloom. “The broad systemic problems we found can be directly attributed to the Justice Department’s poor administration of the program, which we hope changes under the new Administration.”
The report describes the federal forensic oversight program; outlines the problems that have plagued the program since its inception (with specific examples); explains the consequences of the federal government’s inadequate administration of the program; shows how forensic negligence and misconduct lead to wrongful convictions; and gives specific recommendations for what the federal government, states and individuals can do to strengthen forensic oversight.
Previously, the U.S. Department of Justice’s Office of the Inspector General, which monitors federal administration of the program, issued two reports outlining serious problems. One report was issued in December 2005, and the second was released in January 2008. The Inspector General’s recommendations have yet to be fully implemented.
The findings in the Innocence Project’s report, released today, include the following problems:
• Designated entities aren’t appropriate for conducting investigations.
• Entities don’t know they’ve been designated to handle investigations.
• Designated entities don’t have an appropriate process for conducting investigations.
• The Department of Justice grants funds to states that aren’t complying with the requirements.
The report also makes note of the potential consequences to the above problems:
• Forensic negligence and misconduct can result in wrongful conviction.
• Real perpetrators may commit additional crimes while innocent people are in prison.
• Problems in labs may not be corrected – further weakening the criminal justice system.
• The public and jurors may lose faith in forensic evidence and the criminal justice system generally when serious forensic problems are not properly addressed.
The report recommends what the federal government, state and local government, and the public can do: Federal government: • Provide better guidance to Coverdell applicants about what qualifies as an independent external government entity.• Provide Coverdell applicants with a clear framework for an “appropriate process” to investigate forensic errors.• Encourage each Coverdell applicant to provide supporting documentation with its grant application.• Make it easier for members of the public to file allegations under the Coverdell program.• Make sure labs are referring allegations to their investigative entities.• Monitor thoroughness and independence of investigations.• Withhold funding when the requirements are not met. State and local government: • Designate appropriate entities and communicate with them about what’s required.• Establish policies to clearly meet the certification requirement.• Facilitate the proper filing of Coverdell allegations. The public: • File allegations under the Coverdell program when appropriate.• Support legislative and executives fixes that can bolster forensic oversight.• The report is being delivered to key members of Congress, Justice Department officials, and state and local government entities who are involved in the program.
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July 14th, 2009UncategorizedThe Third Circuit, in U.S. v. Price, No. 06-4503 (3/3/09), has upheld the denial of a motion to suppress evidence found in a defendant's home, which was searched after state agents gained consent -- under disputed circumstances -- from the defendant's wife. The case ultimately boiled down to whether the consent was voluntarily given, and the court held that it was. The court avoided some difficult issues of revocation and authority by relying on the independent-source exception to the exclusionary rule.
The defendant was arrested at work on a state warrant stemming from the sale of methamphetamine to an undercover agent. After the defendant expressed concern that his young children would be left at home alone, the agents placed him in custody, went to the house, got the mother's telephone number from the children, and summoned her to the scene. Although the agents had information that the defendant operated a meth lab in his basement (and in fact discovered meth paraphernalia on the defendant at the time of his arrest), they declined to seek the defendant's consent to search his home and instead sought it from the wife at the house. The agents told the wife that they wanted to search the house (1) to make sure it was safe for her and the children, and (2) to look for a stolen ATV. They did not tell her that they were looking for a meth lab, that incriminating evidence could be used against her and her husband, or that she had the right to refuse consent.
The wife consented to a search of the house, and let an agent into a locked bedroom where he found meth paraphernalia. She then told the agent to stop searching the house, and he obliged but asked if he could look in the basement -- where the agents thought the meth lab was all along. She said she would allow it, except for the fact that the basement door was locked, she did not have a key, and did not want the door kicked in. An agent then picked the lock, and evidence of meth manufacturing was found.
The wife was then asked to sign a written consent-to-search form, which she refused to do. The agents advised her that the house was unsafe and applied for a warrant, reciting what they saw in the basement as well as other information they obtained during the search of the house and prior to the defendant's arrest. The warrant issued, and the evidence in the basement was seized.
The Third Circuit held that the wife's original consent was voluntary because (1) police do not have to tell a subject that she has the right to refuse consent; (2) the atmosphere was not coercive; and (3) the agent's half-truth about the reasons for the search did not vitiate voluntariness.
The Court dodged what it viewed as the more difficult questions of revocation and authority to search the basement through reliance on the independent-source doctrine. In these circumstance, independent source requires findings that the police would have applied for a warrant absent the constitutional violation and that the warrant would have issued. The Court ruled that, based on everything they knew before entering the basement, the agents would have applied for the warrant even if they had not entered the basement first. The Court also ruled that the warrant application, purged of the evidence from the basement, still established probable cause.
Finally, the Court upheld the terms of an appeal waiver in the defendant's plea agreement and declined to entertain his argument that the government wrongfully withheld a motion for a third-point reduction under U.S.S.G. 3E1.1(b). -
July 13th, 2009Uncategorized
In United States v. Guthrie, Nos. 07–6215/6286 (6th Cir. Mar. 2, 2009), the panel of Judges Martin, Moore, and Gwin (N.D. Ohio) considered a number of trial issues presented by the defendant and a sentencing challenge by the government. A jury convicted the defendant of car-jacking, discharging a firearm during a crime of violence, possessing a sawed-off shotgun, and being a felon in possession of a firearm. The court sentenced the defendant to 300 months of incarceration total. This sentence accounted for the mandatory minimum sentences at play.The defendant challenged several aspects of the trial proceedings: 1) The AUSA being able to speak with the victim-witness during her cross-examination; 2) introduction of audio recordings of 911 calls; 3) introduction of video of a police pursuit; 4) the trial court’s refusal to issue a writ to produce a witness at trial; 5) the court’s instruction on "intent to cause death or serious bodily injury;" and 6) the denial of his motions for a judgment of acquittal based on the insufficiency of the evidence.
The government challenged the sentence, which included a variance from the guideline range. The government argued that the sentencing court varied because of the impact of the statutory mandatory minimums on the overall sentence and that the court did not adequately explain the grounds for the sentence.
The panel affirmed the conviction and sentence.
I will focus on two issues here: the witness-sequestration issue and the sentencing issue. The sequestration issue is interesting for a number of reasons. In our office in the Western District of Michigan, we recently brought a similar challenge because of conduct during a trial. This Guthrie decision does recognize the viability of such challenges. The Guthrie defendant characterized the error he raised as a failure to sequester the witness and as a violation of his Sixth Amendment right to confront his accuser. In rejecting the challenge, the panel pointed out that the district court merely had called a routine recess at the end of the day and that the defense did not object to the handling of the situation as the decision was made—the defense only objected as the witness was being dismissed and asked that the prosecutor not talk to the witness.
The panel concluded that sequestration orders do not prohibit witnesses from speaking with counsel. The panel noted that the defense did not question the witness regarding potentially improper communications when the witness took the stand the following day. Finally, the defense did not, on appeal, allege that anything improper occurred. I think these facts are what decided the issue. Perhaps on different, less benign, facts the situation could have come out differently.
As to sentencing, the government had argued for a 40-year sentence. The guideline recommendation was for 360 months and an additional 10 years because of the 10-year, consecutive minimum for the use of the firearm during a violent crime. The appellate court upheld the 25-year sentence imposed. It found that the district court was not trying to "negate" the mandatory minimum sentence for the use of the firearm during a crime of violence, as is prohibited by United States v. Franklin, 499 F.3d 578 (6th Cir. 2007). The panel found that the sentencing court had concluded that a 40-year sentence was just too long. The panel refused to impute an improper analysis to the district court and concluded the sentence was reasonable. -
July 13th, 2009Uncategorized
A request for an Offer in Compromise from the IRS or the California Franchise Tax Board can also be used by businesses to resolve outstanding corporate income and payroll taxes.
Similar to an Offer in Compromise for an individual, the offer for a business is computed based upon the business’s current assets and financial disclosure statement. The IRS uses the company’s reasonable collection potential to determine the Offer amount. The reasonable collection potential for a business is computed in a manner similar to that of an individual. However, unlike individual expenses, the IRS does not have “national standards” for business expenses. In most circumstances the IRS will allow all ordinary and necessary expenses of the business.
The IRS’s recent revisions to its Internal Revenue Manual make these types of Offers more difficult.
Offers submitted by an in-business taxpayer with payroll/trust fund recovery penalty liabilities will not be investigated unless the trust fund portion of the taxes are paid, the trust fund recovery penalties are assessed against all responsible persons, or the trust fund package has been forwarded for assessment.
To submit an Offer for an ongoing business, all of the responsible persons must either agree to be assessed with the trust fund recovery penalties, or pay the underlying trust fund amount.Offers submitted by active businesses with trust fund liabilities no longer require that the Offer amount include the reasonable collection potential of both the entity and all responsible persons. Instead, the ongoing business is only required to offer an amount reflective of its reasonable collection potential.
This policy is likely due to the IRS’s renewed focus on the collection of the trust fund liabilities from all responsible persons, despite an Offer at the entity level.
The IRS will continue to collect the trust fund portion of the liability from the responsible persons despite the entity’s successful Offer; most responsible persons would not be motivated to file an Offer on behalf of the company due to their continued liability. The IRS’s interest in collecting from all responsible persons diminishes some of the benefits of an Offer for an ongoing business taxpayer.
These policies leave most responsible persons in a precarious situation because the Offer for the business will not alleviate their personal liabilities. Unless all of the responsible persons independently qualify for a personal Offer in Compromise, this might not be the best solution for the business. However, it may be the only solution available for the entity to remain in business.
