We are still here for our clients, old and new, during the coronavirus pandemic.

Articles Posted in Criminal Justice Issues

We handle lots of federal criminal cases. The various rules governing these cases are the same here in Georgia, they are the same when we take cases in Florida or Alabama, and we work under the same rules whenever we take cases in other parts of the country. Every so often, there are proposals to change the rules, and these amendments need to be first approved by the United States Supreme Court before they can be sent to Congress for ratification. Several weeks ago, the Supreme Court approved a series of rule changes that federal court practitioners need to keep up with in order to do the best job possible for their clients. Two of the bigger changes are discussed below.

One of the biggest rule changes concerns criminal cases involving immigration crimes or clients who are not U.S. Citizens Recall that under the landmark case of Padilla v. Kentucky, it is ineffective assistance of counsel if the lawyer does not tell his alien client that a guilty plea can have ramifications on the defendant’s immigration status. Rule 11 of the Federal Rules of Criminal Procedure discusses what happens when anybody pleads guilty to a crime in federal court. The Supreme Court approved a change which requires the judge, before accepting a guilty plea, to ensure that the defendant understands “that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” The rule change seems to provide protection to both defendants (who will be told about what might happen) and prosecutors (who can argue on appeal or habeas that any failure by defense counsel to provide the advice required by Padilla was harmless because the court gave the defendant the required notice).
Continue reading

Our beloved Eleventh Circuit Court of Appeals, just down the street here in Atlanta, recently refused to join the ever-growing chorus of other courts that permit expert witness testimony to illuminate the real shortcomings in eyewitness identifications. A 30-year old ruling in the 11th Circuit said that the Court of Appeals can never overrule a trial judge who won’t allow a party to bring in an expert to explain to jurors the many problems with witness identification testimony. A criminal defendant recently asked the entire court to overturn this old decision, but the judges refused to take the case. Judge Rosemary Barkett issued a scathing dissent, which is worth reading. The case is US v. Owens, and can be found here

Judge Barkett first notes her amazement that the 11th Circuit wouldn’t join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.'”

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

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

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

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. We have been posting analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

In this post in August, we summarized the impact of the Fair Sentencing Act of 2010, which reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. The Act also provides for higher sentencing guidelines for all drugs in some cases. This amendment brings about the changes made by the Act.

Specifically, the emergency amendment makes the following changes to the Sentencing Guidelines to implement the Fair Sentencing Act:

The Ninth Circuit Court of Appeals issued its opinion in U.S. v. Goyal on December 10th. The case involved the former CFO of Network Associates, Inc., which is better known by its previous name, McAfee. Mr. Goyal was charged in 15 counts with securities fraud, false filings with the SEC, and lying to auditors. The Ninth Circuit held that the government failed to prove materiality on the securities counts and scienter on the lying-to-auditors counts and, thus, reversed the convictions on all counts.

The concurring opinion by Chief Judge Kozinski eloquently describes the reality of many white-collar criminal prosecutions that we see in our federal defense practice. All too often, federal prosecutors go after defendants in prosecutions that would more appropriately be located on the civil docket.

The full opinion in Goyal is available here, but the Chief Judge’s concurrence is worth reprinting in full:

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. We are posting analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

This amendment responds to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. The Act created a new offense at 18 U.S.C. § 249 for injuring any person because of actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. That offense is now referred to §2H1.1 (Offenses Involving Individual Rights). It also broadened the definition of “hate crime” to include crimes motivated by actual or perceived “gender identity.” §3A1.1 (Hate Crime Motivation or Vulnerable Victim) gained an application note to account for the expanded definition.

The Act created a second new offense at 18 U.S.C. § 1389, prohibiting attacks on members of the military, which is now referred to §§2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction, and Fraud).

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The third amendment to the Sentencing Guidelines addresses judges’ discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.

The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, “may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service “may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines”.

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. In the coming weeks, we will post analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

As we noted in this post in April, the U.S. Sentencing Commission has amended the Guidelines to expand the availability of alternatives to incarceration, such as residential treatment programs, home detention, and intermittent confinement. This amendment expands Zones B and C of the Sentencing Table by one level each. It also amends Application Note 6 of § 5C1.1 (Imposition of a Term of Imprisonment) to say that a departure from the options allowed for Zone C to those of Zone B for a specific treatment purpose should be considered only when the court finds that the defendant is an addict, alcoholic, or mentally ill and his or her criminality is related to the treatment problem to be addressed.

Under Zone B, the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment. Under Zone C, at least half of the sentence must be served in prison. Defendants falling under Zone D must serve their entire sentences in prison.

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

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

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

Contact Information