Judge Bruce was sworn in on Monday, November 4, 2013. Although he will begin taking civil cases almost immediately, he will not preside over any criminal cases for at least the next six months.
I have been hearing reports from panel attorneys in this district that they are sometimes receiving PDF discovery which is not electronically “searchable.” The United States Attorney’s office previously agreed to provide defense counsel with discovery that is in a searchable format. If you have received discovery in a non-searchable format, you should notify the Assistant United States Attorney in the case immediately and request a copy of the discovery in a searchable format. Please let me know if you have any problems receiving the discovery in the appropriate format.
You will occasionally see items posted here from outside our office, such as the Comment posted last week and the article posted below this week. I encourage all of you to send me items for inclusion in the Listserv, be they articles, motions, or whatever else you think federal criminal practitioners in the Seventh Circuit might find helpful. The more we collaborate, the better off our clients will be.
Christopher Ferro and Marc Kadish have authored an article in the latest issue of the Circuit Rider entitled, “You Can Have It Both Ways: Fourth Amendment Standing in the Seventh Circuit.” You can read the article by clicking HERE. Christopher Ferro is a third-year student at the Harvard Law School, where he is Managing Editor of the Harvard International Law Journal. He received a Ph.D. in Philosophy from the University of Chicago in 2007. He will joining the Chicago office of Mayer Brown as an associate following a clerkship on the Supreme Judicial Court of Massachusetts upon graduation from law school.
Marc Kadish is the Director of Pro Bono Activities and Litigation Training at Mayer Brown in Chicago. For more than 20 years before Joining Mayer Brown, Marc was a law professor. He has conducted more than 60 jury trials and numerous bench trials in state and federal courts.
This article grew out of some 150 appeals Mayer Brown’s pro bono program has done in the Seventh Circuit. Almost 60,000 hours have been devoted to these appeals since Spring 1999. I encourage you to take a look at it, and thanks to Marc for bringing this to our attention.
For an excellent analysis of the law concerning the third point for acceptance or responsibility, I recommend a Comment authored by Alexa Chu Clinton in the University of Chicago Law Review entitled “Taming the Hydra: Prosecutorial Discretion under the Acceptance of Responsibility Provision of the US sentencing Guidelines. You can read the Comment HERE.
The budget deal struck in Washington, D.C. contains what is called an “anomaly,” meaning that an additional $26 million was added to the Defender Services Budget over last year’s spending level. Federal Public Defenders, CJA Panel Representatives, and the Office of Defender Services worked for many months on getting this anomaly put into any bill Congress might pass. Exactly how these additional funds will impact Federal Public Defender budgets, the emergency “rate cut” to panel payments, or potential CJA panel payment suspensions at the end of next fiscal year is not clear yet. However, this is definitely good news no matter how one looks at it. As details become available on the impact of the anomaly, I will pass them on to you.
On Monday, the Senate confirmed First Assistant United States Attorney Colin Bruce as the new District Judge in Urbana, Illinois. He will be sworn in sometime soon in the coming days. It is my understanding that he will not hear any criminal cases for six months and, until then, Judge McCuskey will continue to preside over at least some of the new criminal cases. Congratulations to Colin!
As noted last week, outgoing Chief Judge Easterbrook and soon to be new Chief Judge Wood wrote a letter to all judges in our circuit concerning CJA appointments and vouchers. You can access the letter HERE.
Carol Brook, the Executive Director of the Federal Defender program in Chicago, wrote this response, which you can access HERE. I encourage any panel attorneys who can provide additional perspective to the judges to write your own responses as well.
In Foster, the Seventh Circuit held that CJA funds cannot be used to pay panel attorneys related to representation of defendants in 18 U.S.C. § 3582(c)(2) proceedings to reduce a sentence pursuant to a retroactive amendment to the Sentencing Guidelines, either in the district court or on appeal. The defendant filed a petition for certiorari in the case, and the Federal Defenders in the Seventh Circuit filed an amici brief arguing that the denial of CJA counsel was incorrect. On Monday, the Supreme Court denied certiorari in the case. We will keep trying when the occasion arises to seek review in the Supreme Court. In the meantime, remember that you will not be paid for work on 3582(c)(2) cases.
On Wednesday, Judge John Gleason of the United States District Court for the Eastern District of New York published a 60-page “Statement of Reasons” where he criticizes prosecutors for the 851notice of prior conviction filing practices. To give you a flavor of the “Statement,” here is an brief excerpt:
“My focus here is narrow and my point is simple: as the defendant Lulzim Kupa’s case and countless others show, the government abuses its power to file prior felony informations in drug trafficking cases. The single most important factor that influences the government’s decision whether to file or threaten to file a prior felony information (or to withdraw or promise to withdraw one that has previously been filed) is illegitimate. When it enacted § 851 in 1970, Congress had in mind the world that DOJ asked it to create, in which federal prosecutors would carefully cull from the large number of defendants with prior drug felony convictions the hardened, professional drug traffickers who should face recidivism enhancements upon conviction. But instead federal prosecutors exercise their discretion by reference to a factor that passes in the night with culpability: whether the defendant pleads guilty. To coerce guilty pleas, and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one – not even the prosecutors themselves – thinks are appropriate. And to demonstrate to defendants generally that those threats are sincere, prosecutors insist on the imposition of the unjust punishments when the threatened defendants refuse to plead guilty.
Prior felony informations don’t just tinker with sentencing outcomes; by doubling mandatory minimums and sometimes mandating life in prison, they produce the sentencing equivalent of a two-by-four to the forehead. The government’s use of them coerces guilty pleas and produces sentences so excessively severe they take your breath away. Prior felony informations have played a key role in helping to place the federal criminal trial on the endangered species list.
On the bright side, like several other features of our current federal sentencing regime that need fixing, it’s not difficult to identify where the appropriate use of prior felony informations went off the rails. The history of this prosecutorial tool explains how we got into the current situation and informs the effort to get out of it.
Please read this letter from outgoing Chief Judge Easterbrook and soon to be new Chief Judge Wood concerning CJA appointments and vouchers. This letter, written to the District and Magistrate Judges in the Seventh Circuit, notes that the appointment of successive counsel in a criminal case is disfavored due to the cost and delays involved. The judges also offer several suggestions to judges when reviewing CJA vouchers, including: 1) the need to bill in tenths of an hour; 2) the importance of establishing an advance budget for a case if it is anticipated that it will involve extraordinary expenses; and 3) the need for careful review of vouchers for reasonableness. To decrease the chances of having your voucher cut, please read this letter carefully. You can access the letter HERE.
As of September 17, 2013, the funds available to pay CJA Vouchers have been exhausted. Accordingly, from that date through September 30, 2013, payment on vouchers will be suspended. Once the new fiscal year begins on October 1, 2013, the suspended payments will be processed and paid. For more detailed information, please see the Memorandum from the Director of the Administrative Office of the United States Courts available HERE.
As I noted last week, the Illinois Supreme Court in People v. Aguilar found the statute defining the Illinois offense of aggravated unlawful use of a weapon to be unconstitutional and violative of the Second Amendment to the U.S. Constitution. United States Sentencing Guideline Section 4A1.2, Note 6 provides that convictions that “have been ruled constitutionally invalid in a prior case are not to be counted.” Accordingly, if you have a client with a prior Illinois aggravated unlawful use of a weapon conviction, you should seek to have that conviction vacated in Illinois court prior to sentencing.
George Taseff, along with material assistance from one of our University of Illinois externs, Michael Park, have drafted a motion for filing in the Illinois Circuit Court seeking to vacate a conviction based upon Aguilar. You can access the motion HERE. I encourage you to use this motion as a template when seeking to vacate your own client’s conviction.
In addition to eliminating criminal history points, there is also a potential argument that vacatur of the prior conviction will support a motion to dismiss a 922(g) conviction premised upon the Illinois offense of aggravated unlawful use of a weapon. Although there is a fair amount of precedent which is not favorable to defendants, see e.g. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 9145 (1980); US v. Lee, 72 F.3d 55 (7th Cir. 1995), and US v. Leuschen, 395F.3d 155 (3rd Cir. 2005), we are exploring ways to make this argument. If we do draft one, we will post it here.
On August 29, 2013, Attorney General issued a Memorandum to United States Attorneys entitled, “Retroactive Application and Recidivist Enhancements in Certain Drug Cases.” This is a follow-up to his August 12 memo, and it lays out DOJ policy with respect to cases prior to an adjudication of guilty, after but before sentencing, and post-sentencing. You can read the memo HERE.
Judge Bennett of the Northern District of Iowa issued an informative opinion regarding the varied practices of U.S. Attorney offices concerning 851 enhancements. To get a flavor of his opinion, here are the first few paragraphs:
“This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.
Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.
These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency. See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”). Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.”
The opinion goes on to provide statistics from the various districts throughout the country, including the Central District of Illinois. It is worth reading, and you can access it HERE. To see a table comparing every district in the country, click HERE. This table shows that in the Central District of Illinois, 79% of eligible defendants receive an 851 enhancement (5th highest in the country), whereas over half the other districts nationwide file the notice of enhancement in less than 15% of cases where a defendant is eligible.
On September 11, 2013, the Seventh Circuit will hear argument en banc in United States v. Gomez, No. 12-1104. The issues it will consider are:
“(1) Whether the four-part test for Rule 404(b) evidence in our case law is useful, or whether the court should adopt a different test, such as one that asks: (a) whether the proposed evidence is relevant to any specifically identifiable and disputed non-propensity issue(s), and if so, how the evidence is relevant to such issue(s) without relying on propensity inferences; and (b) whether, under Rule 403, the evidence would be unduly prejudicial?
(2) Whether admission of evidence under Rule 404(b) should require the use of jury instructions that identify the specific permissible use(s) of the evidence, such as language along the lines of Instruction No. 3.11 in the 2012 version of this court's Criminal Pattern Jury Instructions?”
While this case is under consideration, you may want to make any 404(b) arguments under both the existing and the proposed standards.
For application information, click HERE. The application deadline is October 4, 2013.
In both United States v. Johnson, 04cr30046 and United States v. Purham, No. 12-cr30019, Judge Myerscough varied from the guideline range using the 1:1 crack/powder ratio, rather than the 18:1 ratio called for by the Guidelines. If you have a crack case before Judge Myerscough, be sure to make the 1:1 ratio argument.
John Sands, the Federal Public Defender for Arizona and the Chairperson of the Defender Services Advisory Group, has written a letter to Panel Attorneys regarding the Executive Committee’s decision to cut panel rates and Defender Offices by 10%. Please take a look at the letter HERE.
The National Immigrant Justice Center (NIJC), through its Defenders Initiative, is committed to providing training for defenders and CJA panel attorneys, consulting with them one-on-one with immigration-related issues, and producing helpful material for distribution and posting on fd.org.
For individual case consultation on immigration-related matters, please contact the Defenders Initiative by phone at 312.660.1610, by email at firstname.lastname@example.org, or by online inquiry at http://www.immigrantjustice.org/resources/defendersinitiative.
C-Span aired a panel discussion hosted by the Federal Bar Association Criminal Law Section entitled, “The Criminal Justice Act at 50: The Past, Present, and Future of the Right to Counsel in Federal Courts.” Included among the panelists are Cait Clark, Head of Defender Services, and David Patton, the Federal Defender for the Southern District of New York. You can watch the video HERE.
As I noted last week, in response to sequestration, the Executive Committee of the Judicial Conference of the United States Courts implemented an temporary, emergency $15.00 hourly rate cut for CJA Panel work performed between September 1, 2013 and September 30, 2014. For an explanation of this action from the Administrative Office, please click HERE.
In case you missed my earlier email regarding Chief Judge Shadid’s directive concerning continuances, below is the language from that directive:
“Directive to Federal Defenders, CJA Panel Attorneys and United States Attorneys:
Last week Attorney General Holder made certain announcements regarding the issue of mandatory minimums. As a result, a number of requests to continue cases have been filed. This directive should provide some guidance for those of you wondering if pending matters should be continued based solely on the Attorney General's announced change in policy.
This is a change in prosecution policy. If requested by the defense, I believe the prosecution will look at pending cases in the context of this policy. I can foresee a continuance being necessary, due to the change in prosecution policy, where both defense counsel and the prosecutor are in the process of evaluating whether the policy affects a pending case and the Motion to Continue sets this forth. For the vast majority of cases, the determination of the applicability of the policy change to a particular defendant should be a fairly simple process which should not necessitate a continuance. As such, requested continuances based solely upon the Attorney General's policy change are disfavored unless defense counsel and the prosecutor jointly request as set out above.”
We received the following communication from the Clerk’s office regarding Magistrate Judge Cudmore:
“Chief Judge Shadid announced today [August 20th] that Judge Cudmore's current appointment as Magistrate Judge has been extended pursuant to statute. Judge Cudmore will not be serving another full term. Judge Cudmore will be tendering his resignation and will be leaving the Federal Bench Feb 7, 2014. The Court thanks Judge Cudmore and his staff for their sixteen plus years of service to the Federal Bench and Bar. Judge Cudmore advised that upon leaving the Federal Bench he will work part time as a private mediator and be the principal owner of Central Illinois Judicial Mediation located in Springfield, Illinois. The Court will take steps in due course to select a successor to Judge Cudmore.”
In response to sequestration, the Executive Committee announced Friday that it will cut CJA panel attorney rates by $15.00 per hour for work performed from September 1, 2013 through September 30, 2014. It will also defer up to four weeks of attorney payments at the end of fiscal year 2014 (which ends September 30, 2014.
Panel payments represent roughly 50% of the Defender Services budget, with Federal Public Defender offices constituting the other 50%. This year in response to sequestration, the Executive Committee cut only the Federal Defender side of the budget, which resulted in a 14% across the board cut to all Federal Defender offices. Next year, if only the Federal Defender side of the budget was cut in response to sequestration, Federal Defender offices faced another 23% reduction off of this year’s. Such a cut would have decimated the program nationwide. Recognizing this fact, the Executive Committee decided to cut both the panel and Defender side of the program by 10%.
Should Congress provide the funding needed for the Defender Services budget, some of these cuts may be reduced or eliminated. The Federal Defenders around the country, along with our Panel Attorney Representatives, have been reaching out to members of Congress aggressively to secure the needed funding. We hope those efforts will ultimately meet with success.
Attorney General Holder issued a Memorandum on August 12, 2013 to all United States Attorneys, giving new directives on charging mandatory minimum sentences and recidivist enhancements in drug changes. This memorandum represents a significant change in DOJ charging policy. I encourage you to read the memorandum in its entirety. You can access the memorandum HERE.
As many of you already know, sequestration and decisions made by the Executive Committee of the Judicial Conference of the United States Courts have dramatically impacted Federal Defender offices across the country. Specifically, Federal Defender budgets were cut by more than 10% this fiscal year (September 2012 through October 2013). For next fiscal year, we anticipate another 23% cut off this already reduced level. This will result in many branch offices being closed and offices reducing their staff by as much as half of existing levels. In other words, the Federal Defender Program as you know it will cease to exist if some action is not taken either by the Executive Committee or Congress to secure more funding for Federal Public Defenders.
For details of the impact the upcoming budget cuts will have on Federal Defenders nationally, and potential ways to avoid this crisis, please read this “Federal Defender Fact Sheet,” which was prepared by a group of Federal Defenders as one way to get the message out about what is happening to indigent defense at the federal level.
In Simpson v. United States, No. 13-2373, the Seventh Circuit refused to allow a defendant to file a successive 2255 petition premised upon Alleyne, noting that such a petition can only be filed if the Supreme Court declares the case retroactive. Not only had the court not done so, but it was unlikely to do so given that Alleyne is premised upon Apprendi, which the Court declined to find retroactive. Note that although this case clearly precludes the filing of a successive 2255 petition, the standard is different for initial 2255 petitions. To make an Alleyne claim in an initial petition, a Supreme Court declaration of retroactivity is not required. In other words, one can still file an initial 2255 petition and make the argument that the district court should find the case retroactive. Of course, the likelihood of success is slim, but the fact remains that Simpson does not preclude Alleyne claims in initial 2255 petitions; such claims are only barred in successive petitions.
Linked here is a Memorandum of Law drafted by Peter Henderson of our office on the Buyer-Seller law in the Seventh Circuit. You may find this useful in your drug-conspiracy cases. To read the Memorandum, click HERE.
The 6th edition (pdf) of the Benchbook for U.S. District Court Judges, a publication of the Federal Judicial Center, is now available online. The book, last updated in 2007, is a concise and practical guide to situations federal judges are likely to encounter on the bench. The Benchbook covers procedures that are required by statute, rule or case law, with detailed guidance from experienced trial judges. And although new judges may benefit the most from the Benchbook, even experienced judges may find useful reminders about how to deal with routine matters, suggestions for handling more complex issues, and helpful starting points in new situations.
The 6th Edition includes a primer on a prosecutor's duty to disclose favorable information to defendants under Brady v. Maryland. There's a new section on civil pretrial case management focusing on the judge's role as an active case manager, and a completely revised section on sentencing, which contains an extensive colloquy for the sentencing hearing. There also are subsections on handling disruptive or dangerous defendants, and expanded jury instructions on the use of social media. Due to budgetary constraints, this edition of the Benchbook is published in electronic format only.
You can access the book by clicking HERE.
At the direction of the United States Attorney, the U.S. Attorney's Office in the Central District of Illinois has instituted a Fast Track Policy for a limited group of illegal re-entry cases, effective March 1, 2012. To view the policy, CLICK HERE.
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