On April 3, 2010, the following report was posted on the Internet regarding how a lawyer was convicted for mortgage fraud in Washington State:
Bothell's Robert Ernest Brandt, 42, a former Kirkland attorney and escrow officer, was convicted in U.S. District Court in Seattle April 1 of conspiracy and four counts of wire fraud. The jury deliberated approximately one day following an eight-day trial. When sentenced by U.S. District Judge Richard A. Jones on June 25, Brandt faces up to 20 years in prison and a $250,000 fine. The Washington State Bar Association disbarred Brandt in 2006 after concluding he had allowed the improper use of his client trust account in the mortgage fraud scheme, and had improperly engaged in transactions in which he had a conflict of interest.
The federal case was indicted in June of 2008, as part of "Operation Malicious Mortgage," and the overall investigation was conducted jointly with the Washington State Department of Financial Institutions, the King County Prosecuting Attorney’s Office and the Kirkland Police Department. According to records in the case and testimony at trial, more than a dozen people, including Brandt, were linked to an extensive mortgage fraud scheme operating in 2004 and 2005. Those who have already pleaded guilty in the scheme include a former bank employee, mortgage brokers, as well as the owner of shell companies involved in “flipping” dozens of properties as part of the fraud.
Ten members of the scheme were charged, six in federal and four in state court. All of the charged defendants pleaded guilty, except for Brandt. A number of the charged co-conspirators testified at trial. The conspirators would identify houses and would use shell companies or third parties to purchase the homes, again according to records and testimony. At the same time, they recruited “straw buyers” who would enter into a purchase agreement to buy the same home from the conspirators at an inflated price (a “flip”). The conspirators assisted the straw buyers with phony paperwork for the home loans, making it appear that they were qualified for the mortgage loans and planned to occupy the houses. Members of the conspiracy allegedly falsified numerous documents including appraisals, verifications of deposits, employment verification and closing documents. The conspirators split the proceeds from the fraudulent mortgages, and the straw buyers defaulted on the loans after pocketing as much as $20,000 for their fee. The homes were foreclosed and financial institutions and mortgage lenders suffered substantial losses, estimated to exceed $7 million dollars.
For his part, according to records and testimony, Brandt ran a company called “Escrow Authority,” which closed all of the sales of the flipped properties. He permitted other members of the scheme to use money out of his lawyer’s trust account to acquire properties. The same properties were then quickly resold to straw buyers for significantly higher prices, and fraudulent loans were obtained to finance the fictitious resales. Brandt also helped create shell companies used as part of the scheme, and signed off on fraudulent settlement statements (HUD forms) provided to lenders that failed to disclose the fraudulent nature of the transactions.
http://www.seattlepi.com/sound/417834_sound89795637.html
Sunday, April 4, 2010
Friday, April 2, 2010
Padilla v. Kentucky
In PADILLA v. KENTUCKY, No. 08–651, 550 U.S. __ (March 31, 2010), the SCOTUS held: “when the deportation consequence is truly clear, as it was here, the duty [of that person’s attorney] to give correct advice is equally clear.” This language perhaps clears the way for collateral attacks by resident aliens (“green card holders”) who have been deported based on guilty pleas to crimes in which they were not advised such pleas would result in immediate deportation. A review of the opinion, [http://www.law.cornell.edu/supct/html/08-651.ZO.html] written by Justice Stevens, raises some interesting points:
• The Supreme Court seems to have at least partially discarded the familiar legal axiom that immigration consequences as a result of a guilty plea are a “collateral matter” and thus not the basis for post-conviction relief on the basis of ineffective assistance of counsel. The Padilla Court held: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” 550 U.S. at __, slip op. at 7-8.
• The Supreme Court seems to have laid out a bright-line rule – if a resident alien is charged with “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” (See 8 U. S. C. §1227(a)(2)(B)(i)), the defense attorney must advise that resident alien that a plea to such a charge will make him or her “eligible for deportation.” Certainly, as in Padilla, an attorney must refrain from making “false assurances that his conviction would not result in his removal from this country.” 550 U.S. at __, slip op. at 11.
• Relief may not be available on every occasion that a Defendant is not accurately advised of the immigration consequences of a particular plea. The Padilla court noted: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” 550 U.S. at __, slip op. at 11-12.
• The Supreme Court seems to have at least partially discarded the familiar legal axiom that immigration consequences as a result of a guilty plea are a “collateral matter” and thus not the basis for post-conviction relief on the basis of ineffective assistance of counsel. The Padilla Court held: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” 550 U.S. at __, slip op. at 7-8.
• The Supreme Court seems to have laid out a bright-line rule – if a resident alien is charged with “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” (See 8 U. S. C. §1227(a)(2)(B)(i)), the defense attorney must advise that resident alien that a plea to such a charge will make him or her “eligible for deportation.” Certainly, as in Padilla, an attorney must refrain from making “false assurances that his conviction would not result in his removal from this country.” 550 U.S. at __, slip op. at 11.
• Relief may not be available on every occasion that a Defendant is not accurately advised of the immigration consequences of a particular plea. The Padilla court noted: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” 550 U.S. at __, slip op. at 11-12.
Thursday, April 1, 2010
Texas Judge grants motion to treat crack the same as powder
From the Federal Public Defenders of the Eastern District of Texas:
"This past Tuesday, March 30, 2010, in a case of first impression in the Eastern District of Texas, Judge Leonard Davis granted the Defendant's Motion to treat crack the same as powder cocaine for those sentenced for crack offenses. [In United States v. Sheldon Greer, No: 6:09-CR-20 (E.D.Tex.Tyler 2010,] Judge Davis adopted the current national trend toward equalization of the two forms of the same drug, rejected the Guidelines in their current form, and declared that beginning today and from this point forward, he will sentence Defendants convicted of Federal crack cocaine offenses the same as if the form of the cocaine was powder. Kimbrough was of enormous benefit to the Court in his decision. This decision had and will have a profound impact in that the first two Defendants went from 70-87 months down to 24 months and from 108-135 months to 60 months on the second (mandatory minimum prevented further reduction)."
"This past Tuesday, March 30, 2010, in a case of first impression in the Eastern District of Texas, Judge Leonard Davis granted the Defendant's Motion to treat crack the same as powder cocaine for those sentenced for crack offenses. [In United States v. Sheldon Greer, No: 6:09-CR-20 (E.D.Tex.Tyler 2010,] Judge Davis adopted the current national trend toward equalization of the two forms of the same drug, rejected the Guidelines in their current form, and declared that beginning today and from this point forward, he will sentence Defendants convicted of Federal crack cocaine offenses the same as if the form of the cocaine was powder. Kimbrough was of enormous benefit to the Court in his decision. This decision had and will have a profound impact in that the first two Defendants went from 70-87 months down to 24 months and from 108-135 months to 60 months on the second (mandatory minimum prevented further reduction)."
Wednesday, March 25, 2009
Puckett v. United States
On March 25, 2009, the Supreme Court issued its opinion in Puckett v. United States, 07-9712. (See http://www.supremecourtus.gov/opinions/08pdf/07-9712.pdf). The decision was made by a 7-2 majority, with Justice Scalia writing the opinion for the majority. Justice Souter dissented, and was joined by Justice Stevens.
In any case that an attorney receives a decision he or she personally disagrees with, that attorney is tempted to complain that judges were unfair or did not understand the issues presented. That is not my intent at all. However, there are a couple points arising from the decision that may have unexpected consequences.
The first has to do with the type of prejudice required to satisfy a "plain error" evaluation under Rule 52(b). In Puckett, the majority stated: "Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been affected is his sentence." Puckett, Slip op. at 12, n.4.
Unfortunately, it is my belief that no defendant will ever be able to satisfy this requirement. 18 USC 3553(a) states that a district court, in determining the particular sentence to be imposed, "shall consider" many different types of factors provided in that statute in determining a sentence. A district court judge must by law consider all these factors in imposing sentence. As the 3rd Circuit recently noted: "To be procedurally reasonable, a sentence must reflect a district court's meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a). A district court "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority." Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d 203 , 2007 WL 1772146, at *12 (2007). A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account. Cooper, 437 F.3d at 329." United States v. Lessner, 498 F.3d 185, 203 (3rd Cir. 2007).
Because a district court judge is bound by law to consider all the factors listed under 3553(a), as a practical matter, it is difficult to imagine a sentence that would ever be found by an appellate court to have been determined solely by a factor not even listed under 3553(a), i.e., an agreement by the government to take or forgo taking an action that later is determined to have been breached. In effect, Puckett forecloses all Rule 52(b) relief when the defendant fails to object to the Government's breach of a plea agreement.
Another troubling point is that the Puckett decision may really be only half of the equation. The "other shoe" that may be dropping soon is when a defendant does object to a breach of the plea agreement. In Santobello v. New York, 404 U. S. 257 (1971), the Supreme Court held "that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved, but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262." Puckett, slip op. at 12. However, in Puckett, the Supreme Court indicated it was an open question whether Santobello was still good law. "We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder." Id., n.3.
Under the "harmless-error" test, an appellate court applies Rule 52(a), which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" "When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record -- a so-called "harmless error" inquiry -- to determine whether the error was prejudicial." United States v. Olano, 507 U.S. 725, 734 (1993).
Here, Puckett has seemingly answered this question- prejudice is only established when the breach affects the "outcome" of the defendant's sentence. It arguably does not matter then if the defense attorney objects. If no prejudice resulted to the defendant from the breach, the defendant cannot prevail. Further, a breach of a plea agreement is, according to the majority, not a structural error which would preclude Rule 52(a) consideration. "[B]reach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra[.]" Puckett, Slip Op. at 11. While the Puckett majority held in passing that its earlier decision in Santobello (and presumably its automatic reversal standard with no required showing of prejudice) was still applicable in cases where the Defendant objects to a plea breach, I believe that the Government will challenge an objected to breach of a plea agreement as not amounting to "harmless error" in a future appeal.
Another sign Santobello is in trouble is the Puckett majority's casting aside its brethren decisions from the same time period. In Puckett, the Supreme Court distinguished or overruled its decisions holding that a plea agreement cannot stand if induced by "misrepresentation" including "unfulfilled" promises (Brady v. United States, 397 U. S. 742 (1970) and that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." (Mabry v. Johnson, 467 U. S. 504, 509 (1984)). See Slip Op. at 8-9, n.1. If these "bedrocks" of Constitutional law are not safe, can Santobello be far behind?
As Justice Souter wrote in his dissent, "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here." While the Supreme Court majority had an easy target in Mr. Puckett, the rules it set out may have unintended adverse results. The Puckett decision unfortunately may undermine the trust and confidence in the plea system and encourage United States Attorneys to breach plea agreements.
In any case that an attorney receives a decision he or she personally disagrees with, that attorney is tempted to complain that judges were unfair or did not understand the issues presented. That is not my intent at all. However, there are a couple points arising from the decision that may have unexpected consequences.
The first has to do with the type of prejudice required to satisfy a "plain error" evaluation under Rule 52(b). In Puckett, the majority stated: "Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been affected is his sentence." Puckett, Slip op. at 12, n.4.
Unfortunately, it is my belief that no defendant will ever be able to satisfy this requirement. 18 USC 3553(a) states that a district court, in determining the particular sentence to be imposed, "shall consider" many different types of factors provided in that statute in determining a sentence. A district court judge must by law consider all these factors in imposing sentence. As the 3rd Circuit recently noted: "To be procedurally reasonable, a sentence must reflect a district court's meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a). A district court "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority." Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d 203 , 2007 WL 1772146, at *12 (2007). A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account. Cooper, 437 F.3d at 329." United States v. Lessner, 498 F.3d 185, 203 (3rd Cir. 2007).
Because a district court judge is bound by law to consider all the factors listed under 3553(a), as a practical matter, it is difficult to imagine a sentence that would ever be found by an appellate court to have been determined solely by a factor not even listed under 3553(a), i.e., an agreement by the government to take or forgo taking an action that later is determined to have been breached. In effect, Puckett forecloses all Rule 52(b) relief when the defendant fails to object to the Government's breach of a plea agreement.
Another troubling point is that the Puckett decision may really be only half of the equation. The "other shoe" that may be dropping soon is when a defendant does object to a breach of the plea agreement. In Santobello v. New York, 404 U. S. 257 (1971), the Supreme Court held "that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved, but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262." Puckett, slip op. at 12. However, in Puckett, the Supreme Court indicated it was an open question whether Santobello was still good law. "We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder." Id., n.3.
Under the "harmless-error" test, an appellate court applies Rule 52(a), which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" "When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record -- a so-called "harmless error" inquiry -- to determine whether the error was prejudicial." United States v. Olano, 507 U.S. 725, 734 (1993).
Here, Puckett has seemingly answered this question- prejudice is only established when the breach affects the "outcome" of the defendant's sentence. It arguably does not matter then if the defense attorney objects. If no prejudice resulted to the defendant from the breach, the defendant cannot prevail. Further, a breach of a plea agreement is, according to the majority, not a structural error which would preclude Rule 52(a) consideration. "[B]reach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra[.]" Puckett, Slip Op. at 11. While the Puckett majority held in passing that its earlier decision in Santobello (and presumably its automatic reversal standard with no required showing of prejudice) was still applicable in cases where the Defendant objects to a plea breach, I believe that the Government will challenge an objected to breach of a plea agreement as not amounting to "harmless error" in a future appeal.
Another sign Santobello is in trouble is the Puckett majority's casting aside its brethren decisions from the same time period. In Puckett, the Supreme Court distinguished or overruled its decisions holding that a plea agreement cannot stand if induced by "misrepresentation" including "unfulfilled" promises (Brady v. United States, 397 U. S. 742 (1970) and that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." (Mabry v. Johnson, 467 U. S. 504, 509 (1984)). See Slip Op. at 8-9, n.1. If these "bedrocks" of Constitutional law are not safe, can Santobello be far behind?
As Justice Souter wrote in his dissent, "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here." While the Supreme Court majority had an easy target in Mr. Puckett, the rules it set out may have unintended adverse results. The Puckett decision unfortunately may undermine the trust and confidence in the plea system and encourage United States Attorneys to breach plea agreements.
Sunday, January 25, 2009
Puckett v. United States
On January 14, 2009, I argued for petitioner James Benjamin Puckett in Puckett v. United States, 07-9712, before the United States Supreme Court. With me at counsel table were Jonathan Hacker, Pamela Lakatos and M. Christina Rossi. Opposing was Assistant to the Solicitor General Lisa Schertler, and with her at counsel table was Kathleen Felton. The issue granted by the United States Supreme Court for review was: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure." Amazingly, I don't think a single question was posed by the Justices to either side as to this issue.
I certainly could not have done this alone. The attorneys at O'Melveny & Meyers did a great job in preparing me for oral argument. I did five mock panels beforehand, which were all helpful. One of the these was held at the Georgetown Law School Supreme Court Institute, coordinated by Tina Drake-Zimmerman. Ms. Drake-Zimmerman was extremely friendly and of great assistance. Dahlia Fetouh wrote the excellent amicus brief for NACDL and kindly took the time to come to oral argument. Tom Vanderloo of the United States Sixth Circuit Court Library in Chattanooga was helpful and supportive. Richard Anderson, Jason Hawkins and Jerry Beard of the Federal Public Defender's Office of the Northern District of Texas were my foundation throughout this voyage.
In regard to the attorneys who sat with me a counsel table, Jonathan Hacker did a fabulous job on the briefs and was patient with this small town lawyer who had to throw his two cents in at every opportunity. Pamela Lakatos of Plano, Texas, is one of the finest attorneys I have ever known, and a real mentor to me. And M. Chris Rossi is a wonderful lawyer, and is an even more wonderful sister to assist her brother on this stressful day.
Oral argument itself was vigorous, to say the least. After my third sentence, Justice Ginsburg jumped in, and we were off to the races. All the justices, except for Justice Thomas, asked questions, some more pointed than others. Chief Justice Roberts seemed to be the most amenable to my client's position, but of course it is impossible to tell how the votes will come down. Justices Scalia and Alito seemed the least impressed with my arguments, and Justice Souter asked me a hypothetical in which he used the term "metaphysical." It was very challenging, and I did the best I could. My goal was not to appear to be hopelessly outclassed by the more experienced Assistant Solicitor General, and I like to think I achieved this goal.
All the pertinent documents can be found at: http://www.scotuswiki.com/index.php?title=Puckett_v._United_States. It is very rare that a sole practitioner gets to argue before the Supreme Court. I was aware of this, and felt the weight of history many times. One time was when we were being briefed by Clerk of the Supreme Court William Suter in the lawyers lounge on the day of oral argument. He could not have been nicer, but standing there before us in his morning coat and striped pants, and in the presence of numerous large portraits of former justices, it was a moment in which you felt a strong link to the history of the Court.
Another time I felt the weight of history was speaking with Justice Stevens during oral argument. Justice Stevens is a living link to some of the great justices of the past. Justice Stevens was preceded by Justice William O. Douglas. Justice Douglas had served with Associate then Chief Justice Harlan Stone. Associate/Chief Justice Stone had served with Justices Brandeis, Holmes, Cordozo and Taft, among others. How many poor souls had tried to match wits with these giants who have sat on the lofty bench of the Supreme Court? Not many have had this opportunity, but all probably felt as nervous as I did.
Two quotes from two very different authors seem appropriate, if not directly on point. First, Chief Justice Marshall wrote the following in his opinion in the Aaron Burr treason trial in 1807: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true." My hope is that the Supreme Court does not retreat from a bright line rule that a plea induced by a false promise cannot stand. There are many reasons why the Supreme Court loathes an automatic reversal rule- but, the repugnancy of such a rule pales in comparison to the repugnancy of allowing our government to trick a citizen into giving away his or her Constitutional rights to trial and due process of law.
The second quote is from recently-deceased author John Mortimer. In his short story "Rumpole and the Man of God," fictional aged lawyer T.C. Rowley ("Uncle Tom"), in lecturing his younger London temple-mates on the long-past workings of chambers, states: "We had no work in those days . . . No work of any kind. We spent our days practising chip shots, trying to get an old golf ball into the waste-paper basket with [a mashie niblick]. . . . Being able to defend myself with a club-like object would have been good training for my recent experience!
I certainly could not have done this alone. The attorneys at O'Melveny & Meyers did a great job in preparing me for oral argument. I did five mock panels beforehand, which were all helpful. One of the these was held at the Georgetown Law School Supreme Court Institute, coordinated by Tina Drake-Zimmerman. Ms. Drake-Zimmerman was extremely friendly and of great assistance. Dahlia Fetouh wrote the excellent amicus brief for NACDL and kindly took the time to come to oral argument. Tom Vanderloo of the United States Sixth Circuit Court Library in Chattanooga was helpful and supportive. Richard Anderson, Jason Hawkins and Jerry Beard of the Federal Public Defender's Office of the Northern District of Texas were my foundation throughout this voyage.
In regard to the attorneys who sat with me a counsel table, Jonathan Hacker did a fabulous job on the briefs and was patient with this small town lawyer who had to throw his two cents in at every opportunity. Pamela Lakatos of Plano, Texas, is one of the finest attorneys I have ever known, and a real mentor to me. And M. Chris Rossi is a wonderful lawyer, and is an even more wonderful sister to assist her brother on this stressful day.
Oral argument itself was vigorous, to say the least. After my third sentence, Justice Ginsburg jumped in, and we were off to the races. All the justices, except for Justice Thomas, asked questions, some more pointed than others. Chief Justice Roberts seemed to be the most amenable to my client's position, but of course it is impossible to tell how the votes will come down. Justices Scalia and Alito seemed the least impressed with my arguments, and Justice Souter asked me a hypothetical in which he used the term "metaphysical." It was very challenging, and I did the best I could. My goal was not to appear to be hopelessly outclassed by the more experienced Assistant Solicitor General, and I like to think I achieved this goal.
All the pertinent documents can be found at: http://www.scotuswiki.com/index.php?title=Puckett_v._United_States. It is very rare that a sole practitioner gets to argue before the Supreme Court. I was aware of this, and felt the weight of history many times. One time was when we were being briefed by Clerk of the Supreme Court William Suter in the lawyers lounge on the day of oral argument. He could not have been nicer, but standing there before us in his morning coat and striped pants, and in the presence of numerous large portraits of former justices, it was a moment in which you felt a strong link to the history of the Court.
Another time I felt the weight of history was speaking with Justice Stevens during oral argument. Justice Stevens is a living link to some of the great justices of the past. Justice Stevens was preceded by Justice William O. Douglas. Justice Douglas had served with Associate then Chief Justice Harlan Stone. Associate/Chief Justice Stone had served with Justices Brandeis, Holmes, Cordozo and Taft, among others. How many poor souls had tried to match wits with these giants who have sat on the lofty bench of the Supreme Court? Not many have had this opportunity, but all probably felt as nervous as I did.
Two quotes from two very different authors seem appropriate, if not directly on point. First, Chief Justice Marshall wrote the following in his opinion in the Aaron Burr treason trial in 1807: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true." My hope is that the Supreme Court does not retreat from a bright line rule that a plea induced by a false promise cannot stand. There are many reasons why the Supreme Court loathes an automatic reversal rule- but, the repugnancy of such a rule pales in comparison to the repugnancy of allowing our government to trick a citizen into giving away his or her Constitutional rights to trial and due process of law.
The second quote is from recently-deceased author John Mortimer. In his short story "Rumpole and the Man of God," fictional aged lawyer T.C. Rowley ("Uncle Tom"), in lecturing his younger London temple-mates on the long-past workings of chambers, states: "We had no work in those days . . . No work of any kind. We spent our days practising chip shots, trying to get an old golf ball into the waste-paper basket with [a mashie niblick]. . . . Being able to defend myself with a club-like object would have been good training for my recent experience!
Monday, September 1, 2008
Second Chance Act of 2007
On April 9, 2008, President Bush signed the “Second Chance Act of 2007.” A summary of the Act is found at: http://www.whitehouse.gov/news/releases/2008/04/20080409-15.html.
In short, “the legislation formally authorizes key elements of the successful Prisoner Reentry Initiative (PRI), announced by the President in 2004, to help prisoners effectively reintegrate into the community. Additionally, the Second Chance Act enhances drug treatment, mentoring, and transitional services for ex-offenders through partnerships with local corrections agencies and faith-based and community organizations.” The Act allocates $360 million towards a variety of reentry programs. One of the main components of the bill is the funding of demonstration projects that would provide ex-offenders with a coordinated continuum of housing, education, health, employment, and mentoring services.
However, it will be up to Congress to appropriate the funds for this program. The success of this program, even with lofty hopes and goals, will depend on whether the Government will follow through with the necessary funding.
In short, “the legislation formally authorizes key elements of the successful Prisoner Reentry Initiative (PRI), announced by the President in 2004, to help prisoners effectively reintegrate into the community. Additionally, the Second Chance Act enhances drug treatment, mentoring, and transitional services for ex-offenders through partnerships with local corrections agencies and faith-based and community organizations.” The Act allocates $360 million towards a variety of reentry programs. One of the main components of the bill is the funding of demonstration projects that would provide ex-offenders with a coordinated continuum of housing, education, health, employment, and mentoring services.
However, it will be up to Congress to appropriate the funds for this program. The success of this program, even with lofty hopes and goals, will depend on whether the Government will follow through with the necessary funding.
New Crack Cocaine Guidelines
The New “Crack Cocaine” Guidelines- an introduction
Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.
Change in guidelines
For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.
The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.
Procedure
18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).
The major points included in USSG §1B1.10 are:
• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”
• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.
• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
Northern District of Texas
In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.
A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.
It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.
Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.
Change in guidelines
For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.
The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.
Procedure
18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).
The major points included in USSG §1B1.10 are:
• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”
• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.
• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
Northern District of Texas
In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.
A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.
It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.
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