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Archive for October 9th, 2015

Weekend Series on Crime History: Crack in the 1980s

Lengel: President Obama Needs to Show Backbone and Nominate an ATF Director

Thomas Brandon

Thomas Brandon

By Allan Lengel
ticklethewire.com

President Obama gets very angry and expresses frustration when he talks about how common mass shooting have become in this country. He wants America to get tougher and implement stricter gun laws.

Enough talk. Step up, Mr. President. Show some backbone.

Start by standing up to the NRA by nominating acting director Tom Brandon as permanent director of ATF, you know, the agency that is tasked with enforcing the current gun laws and fighting gun violence. Show the public that you’re willing to expend some political capital and take on the NRA, a bully-organization that has done everything it can to undermine gun control and ATF’s mission.

In general, the NRA has historically opposed confirmation of a permanent director for ATF, its nemesis. Lawmakers on the Hill – and presidents for that matter – have bowed to the NRA, which realizes ATF is weaker without a director.

Why is this directorship issue so important?

Politico reports that the Obama administration has no plans to name Brandon permanent director for the agency. It doesn’t want to expend political capital on what would be a tough battle. And mind you, Brandon is one of the best to come along. He was named Ticklethewire.com Fed of The Year in 2011. It’s not as if the President would be fighting for a candidate that’s not worthy (and believe me, there have been some that have not been).

By law, Politico notes, that Brandon can’t hold that interim title for longer than 210 days. It runs out Oct. 27. That means after that date, Brandon will still run the agency, but ATF will not officially have a director. He’ll be the deputy director.

That’s not good.

First off, it’s bad for morale for agents not to have a director.  It sends a message that the President and Congress don’t think much of the agency.  That can impact funding, staffing and mission. The DEA was without a permanent director for years, and I think that hurt the agency and morale.

The White House would never leave the FBI director’s post open. Why? Because it believes that agency’s mission is far too important.

In this case, the message is: We fear the NRA far more than we respect ATF.

Don’t be mistaken:  To be sure,  ATF is not the answer to our gun violence. Yes, we need tougher federal gun control laws that apply uniformly across the county.  And the president needs to push again for tougher laws and see what he can accomplish through executive orders.

That being said, ATF is part of the answer.

So President Obama, if you really care about the gun crisis in this country, you need to show it.

Talk is cheap. And with these mass shootings, so are lives.

Have some balls. Keep pushing for tougher gun control laws. And while you’re at it, nominate Tom Brandon.

A Look at Some Upcoming Supreme Court Cases of Note

By Ross Parker
ticklethewire.com

Supreme Court Justices have a busy November with, among their other duties, six days of Oral Argument, including five cases of interest to criminal justice folks on both sides of the aisle.

US Supreme Court

Death Penalty Jury Selection:   No Court calendar would be complete without a contentious death penalty case. Foster v. Chatman involves the issue of whether Georgia courts bungled in failing to recognize and remedy a racially discriminatory jury selection.

In Batson v. Kentucky (1986) the Supreme Court held that equal protection is denied to an African American defendant if members of his race are purposefully excluded from the jury. That includes the prosecution’s use of peremptory challenges. Once the defendant makes a prima facie (on the first appearance) case of discrimination, the prosecution must prove that the challenges had a neutral, non-racial basis.

In this case the defendant, an 18 year old African American man with an IQ measured to be between 58 and 80, was charged with killing an elderly white woman. The prosecution challenged all four of the black prospective jurors but presented numerous neutral explanations for having done so.

In the habeas corpus proceeding decades after the defendant’s conviction and sentence to death, the defendant obtained the prosecutor’s jury selection notes. These marked the names of the black jurors with a “B,” highlighted their names, and ranked them against each other in case “it comes down to having to pick one of the black jurors.” The notes were contradictory as to neutral bases for challenges and listed all of the black jurors as ”Definite NOs,” along with a single white juror.

The Georgia courts during direct appeal and habeas proceedings blithely rejected the defendant’s arguments and accepted the prosecutor’s assertions, despite the clear plan evidenced in the notes.

Prediction—reversal by a 7-2 vote. Affirming this conviction would confirm the opinion of many that Batson challenges are meaningless as long as the trial prosecutor has disingenuously prepared neutral explanations which have been found acceptable in previous cases and as long as trial judges lack the courage to challenge the prosecutor’s veracity in the face of such questionable circumstances. The case does a disservice to all of the honest prosecutors who seek a fair and impartial jury regardless of race.

Substitute Assets in Forfeiture Actions  — Luis v. United States pits the government’s statutory authority to use substitute assets to satisfy a forfeiture conviction against a criminal defendant’s right to use non-criminal but forfeitable assets to retain counsel of choice.

The defendants were charged in a massive Medicare kickback scheme in south Florida. At a pretrial hearing the government presented probable cause that the defendant had so dissipated his assets on luxury purchases that a preliminary injunction restraining even non-traceable assets was justified since their seizure, on conviction, would be necessary as substitute assets to satisfy a forfeiture verdict. The defendant argued that those non-criminal assets were needed to pay the attorney chosen to defend him in the case. The trial court restrained the assets.

In the Kaley case last term the Court upheld the restraint of criminally tainted assets, the only ones sought for forfeiture in the case, but did not rule on the restraint of legitimate assets. In the oral argument in the case there was some ambiguous indication that the Solicitor General arguing the case for the government, along with three of the Justices, assumed that such an injunction would pose constitutional problems. The context of the discussion, however, may well have been limited to cases in which only criminally traceable assets were sought for forfeiture.

In weighing the policy issues of the case, the question is whether a defendant should be able to use forfeitable (but legitimate) assets to pay his attorney even though the interests of forfeiture will be defeated by doing so. If so, there will be little disincentive to keep wealthy defendants from hiding and spending criminal proceeds to avoid government seizure. Defendants will essentially be authorized to use forfeitable assets to pay legal fees.

Prediction—Affirmed 6-3 in favor of the government’s injunction restraining forfeitable assets.

Prisoner Litigation Fees:  In Bruce v. Sanders the Court will resolve a split in the Circuits on an interpretation of the Prison Litigation Reform Act. The purpose of that statute was to stem the flood of frivolous prisoner cases by requiring them to pay filing fees if they are able to do so. If they cannot pay the fee at the filing, the statute provides a formula for assessing installments from the prisoner’s trust account, with two limitations. No “exaction” from the account is permissible if it has a balance of $10 or less, and if the prisoner has no balance the filing is still permitted without assessment of cost.

The statute provides an exaction formula of 20% of the prisoner’s monthly income toward the payment of the filing fees, to be forwarded by the prison to the court where the case is filed. The provision, however, fails to make clear how this process is to be administered when the prisoner files multiple cases—does he have to pay 20% for each case (5 Circuits say “yes”) or is the 20% capped regardless of the number of cases (3 Circuits) ?

In the per-case interpretation, when a prisoner has 5 or more cases pending, the warden will exact his entire monthly income (minus the $10 minimum balance) until all fees are satisfied. In the per-defendant interpretation the warden will continue to exact the account until all fees are satisfied. For some prisoners, such as the plaintiff in this case who has over 100 cases filed, this process can consume the entire period of the sentence.

The Circuit split revolves around the construction of the statutory language. The subsection which precedes the formula requirement appears to be reasonably clear as referring to a per-defendant approach, but the subsection in question is ambiguous.

The case has attracted attention on both sides of the issue. Amici curiae briefs have been filed by the Southern Poverty Law Center, as well as by 20 states. Regardless of the result, the resolution will be welcome news for the Bureau of Prisons, which presently has to figure out the diverging views of the Circuits in administering the program.

Prediction—5-4 in favor of the per-case interpretation, meaning that prisoners who file multiple cases will pay the price in having less to spend on sundries.

Sexual Exploitation of Children Statutory Sentence Enhancement:  The case of Lockhart v. United States involves yet another split in the Circuits over statutory interpretation. The issue involves the mandatory minimum enhancement for possession of child pornography convictions. This enhancement is triggered by a prior conviction under state law relating to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

The disagreement is whether the latter phrase “involving a minor or ward” applies to all three of the categories of predicate offenses or just the third one involving abusive sexual conduct. If it applies only to the last category, prior sexual abuse convictions involving adults would qualify, thus enhancing the sentences of a broader scope of defendants.

The defendant is one of those affected since his prior conviction was the attempted rape of his 53 year old girlfriend. He pled guilty to possessing child pornography but argued that his sentence should not be bumped up to the 10 year mandatory minimum since the enhancement statute requires that all three categories of predicate offenses involve minors.

The trial court rejected this interpretation, following 4 circuits which have ruled that the phrase “involving minors” modifies only the third category of predicates. Two circuits have held to the contrary, that all predicates must involve minors.

The battle revolves around a contest between the “last antecedent rule” (modifying only the phrase it immediately follows) versus the “series qualifier rule” (modifying all of the terms in a series). The statutory history and context seem to support the former, broader approach.

Prediction—Affirm the broader interpretation of predicate offenses as applying to all categories of prior sex abuse convictions, by a slim majority.

Immigration Act Predicate Offenses: The issue in Torres v. Lynch involves yet another Circuit split over the statutory interpretation of a state predicate offense, this one in the context of what constitutes an aggravated felony under the Immigration and Nationality Act (INA). Such a prior conviction subjects the alien to removal from the country without the benefit of eligibility for “cancellation,” i.e., discretionary relief from removal.

One of the categories of aggravated felonies includes those “described in” certain federal statutes, such as in this case, arson. The petitioner’s argument is that state arson convictions do not qualify since they do not, as federal arson convictions, include an element of affecting interstate commerce. The 3rd Circuit has adopted this position; 4 others have included analogous state offenses as predicate aggravated felonies without the interstate commerce requirement.

Prediction—Affirm following the majority of Circuits which have found logic and legislative history to support giving the Bureau of Immigration Affairs some deference in interpreting the statute to support the purpose of facilitating removal of aliens with prior aggravated felonies.

So be prepared for a lot of arcane statutory construction arguments, bread and butter for lawyers, but one of the reasons good fathers urge their children to do something socially useful like bull-riding or being a PR consultant for venal pharmaceutical companies, rather than going to law school.

 

Ross Parker Takes A Look At Some Key Supreme Court Cases That Impact the Legal System

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

By Ross Parker
ticklethewire.com

Supreme Court Justices have a busy November with, among their other duties, six days of Oral Argument, including five cases of interest to criminal justice folks on both sides of the aisle.

US Supreme Court

Death Penalty Jury Selection:   No Court calendar would be complete without a contentious death penalty case. Foster v. Chatman involves the issue of whether Georgia courts bungled in failing to recognize and remedy a racially discriminatory jury selection.

In Batson v. Kentucky (1986) the Supreme Court held that equal protection is denied to an African American defendant if members of his race are purposefully excluded from the jury. That includes the prosecution’s use of peremptory challenges. Once the defendant makes a prima facie (on the first appearance) case of discrimination, the prosecution must prove that the challenges had a neutral, non-racial basis.

In this case the defendant, an 18 year old African American man with an IQ measured to be between 58 and 80, was charged with killing an elderly white woman. The prosecution challenged all four of the black prospective jurors but presented numerous neutral explanations for having done so.

Ross Parker

Ross Parker

In the habeas corpus proceeding decades after the defendant’s conviction and sentence to death, the defendant obtained the prosecutor’s jury selection notes. These marked the names of the black jurors with a “B,” highlighted their names, and ranked them against each other in case “it comes down to having to pick one of the black jurors.” The notes were contradictory as to neutral bases for challenges and listed all of the black jurors as ”Definite NOs,” along with a single white juror.

The Georgia courts during direct appeal and habeas proceedings blithely rejected the defendant’s arguments and accepted the prosecutor’s assertions, despite the clear plan evidenced in the notes.

Prediction—reversal by a 7-2 vote. Affirming this conviction would confirm the opinion of many that Batson challenges are meaningless as long as the trial prosecutor has disingenuously prepared neutral explanations which have been found acceptable in previous cases and as long as trial judges lack the courage to challenge the prosecutor’s veracity in the face of such questionable circumstances. The case does a disservice to all of the honest prosecutors who seek a fair and impartial jury regardless of race.

Read more »

Journalist Convicted of Hacking, Accused FBI of Manipulating Evidence

Matthew Keys

Matthew Keys

By Steve Neavling
ticklethewire.com

A journalist convicted of hacking Wednesday claims the FBI provided misleading evidence in his case because he would not reveal a source, the Washington Post reports. 

Matthew Keys, a former Reuters social media editor, was accused of providing login credentials to a group of hackers who broke into the Los Angeles Times’ networks to alter an online story.

“The FBI agent admitted on the stand to editing chat logs,” Matthew Keys said in an interview Wednesday night. “They presented this case with edited and misleading evidence and facts that told a brilliant story that was total bulls––t.”

Keys, who was found guilty on three counts of hacking, faces up to 25 years in prison when sentenced.

The Justice Department denied any wrongdoing.

Three ex-East Cleveland Cops Charged with Stealing Money from Suspected Drug Dealers

eastclevelandpdBy Steve Neavling
ticklethewire.com

Three former East Cleveland police officers accused of stealing money from suspected drug dealers, often while conducting illegal searches, were charged in federal court Thursday.

Charged were Torris Moore, Antonio Malone and Eric Jones.

“The three officers charged today—unlike the overwhelming majority of police officers—did not protect and serve, but rather pillaged and plundered,” Steven M. Dettelbach, U.S. attorney for the Northern District of Ohio, said in an FBI press release. “They viewed the drug trade as an opportunity to enrich themselves, and lied to the court, their fellow officers and the citizens of East Cleveland to pull off their criminal conspiracy.”

Moore was a sergeant supervising the Street Crimes Unit, where Malone and Jones were detectives.

They also are accused of fabricating reports.

“These three officers acted like cunning criminals rather than honorable public servants that are sworn to protect and serve,” said Stephen D. Anthony, special agent in charge of the FBI’s Cleveland Office. “They will be held accountable for their reprehensible conduct.”

Border Patrol to Hire 1,000 New Agents in Largest Hiring Spree in Nearly a Decade

Border PatrolBy Steve Neavling
ticklethewire.com

Border Patrol is taking up to 30,000 applications for field agent jobs, marking its largest recruitment effort in nearly a decade, the Monitor reports. 

“With the arrival of the UTRGV School of Medicine, SpaceX, increased international trade, increased private businesses and government jobs there is no doubt the Rio Grande Valley is experiencing economic growth,” said RGV sector Acting Chief Raul Ortiz.

Congress enacted a law in 2006 requiring Border Patrol to have at least 21,000 agents.

Border Patrol plans to hire about 1,000 agents.

Applicants must be between the agents of 18 and 37.

The process is expected to take about seven months.