New from the District of Vermont; News from the Sentencing Commission; Supreme Court & Second Circuit update
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The Defense Post
October 2014
   This issue of The Defense Post contains news that we hope will be interesting to you and useful in your practice.  Thus, you will find news about developments in this district as well as a discussion of some of the amendments to the Sentencing Guidelines that will take effect on November 1.  You will also find a review of recent Supreme Court and Second Circuit cases as well as a preview of some of the cases the Supreme Court will hear this term.
   We frequently field questions on legal issues and remain ready and willing to provide assistance to you and your clients.  We are also available to answer questions that—while not legal in nature—have an impact on the practice of law.  In this regard, the Office will soon provide a guide for dealing with discovery received in electronic format.  This is in response to questions and concerns we have heard about discovery that is provided using iPro, the government’s litigation-support software.

Michael L. Desautels
Federal Public Defender—District of Vermont

U.S. Court House & Post Office - Windsor, VT

News from the District of Vermont

   A recent brown bag meeting conducted by the office featured information from U.S. Magistrate Judge Conroy (October 10, 2014).  Panel attorneys should expect to receive a letter from the Court alerting them to the implementation of an e-voucher system for processing CJA vouchers.  This system will go into effect on January 1, 2015, and panel attorneys will be trained in December.  Further information about the system is available here.
   The slowdown in criminal cases is not all in your head.  Only 8 cases were filed in September and only 2 cases have been filed in October (as of the 10th of the month).  By contrast, the Court has seen an increase in habeas claims alleging ineffective assistance of counsel.  The Court intends to continue its practice of seeking an affidavit from the attorney rather than holding a hearing, at least in the first instance.
   Pretrial release statistics for Vermont continue to be ahead of those for the Second Circuit and the nation as a whole.  In Vermont, 70.2% of non-immigration defendants were released as compared with 54.0% in the Second Circuit and 43.0% for the nation as a whole.

News from the Sentencing Commission

   Practitioners with clients still incarcerated have likely received calls regarding the Sentencing Commission’s two-point reduction.  In July, the Commission announced that it would make the two-point reduction retroactive, for all drug offenders.  See U.S.S.C. News Release (July 18, 2014).  According to the Commission, some 46,000 offenders will be eligible for the reduction and sentences could be reduced by an average of 25 months.  The hitch?  The Sentencing Commission has added “a requirement that reduced sentences cannot take effect until November 1, 2015.”  Id
   The Sentencing Commission estimates that thirty-seven defendants from this district are eligible for a reduction.  In the next few days, the Office of the Federal Public Defender will notify prior counsel that these individuals have been identified as being eligible for a reduction.  Unless prior counsel wishes to file the 18 U.S.C. § 3582(c) motion, the Office plans to file a motion on behalf of these individuals. 
   It bears mentioning that the 2010 two-point reduction had limited effect in this district because of related, contemporaneous amendments to U.S.S.G. § 1B1.10.  These amendments prevented judges from doing more than simply resentencing defendants within the new, lower Guideline range; that is to say, a judge could not recalculate the sentence and then also depart as he or she had with the original sentence.  In a district where sentences are often below the Guideline range, this means that relatively fewer defendants are likely to benefit from a retroactive reduction as compared with a district where Guideline sentences are the norm.
   Also notable are two amendments to § 5G1.3, which deals with undischarged terms of imprisonment.  The first amendment is to subsection (b) and removes language that limited an adjustment to relevant conduct “that was the basis for an increase in the offense level for the instant offense.”  Thus, subsection (b) now applies to all relevant conduct that results in an undischarged term of imprisonment. 
   The second amendment to § 5G1.3 adds a new subsection (c), which calls for a concurrent sentence whenever “a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense.”  Commentary from the Sentencing Commission indicates that the “amendment is a further response to the Supreme Court’s decision in Setser v. United States, 132 S.Ct. 1463 (2012).”  In Setser, the Supreme Court held that it is a federal court, and not the Bureau of Prisons, that has the authority to determine whether a federal sentenced is served concurrent with, or consecutive to, a state sentence. 
   A related amendment to the commentary to § 2L1.2—dealing with illegal reentry offenses—makes it clear that a court may depart on the basis of state time served by the defendant that will not be credited by other provisions of the Sentencing Guidelines or by the Bureau of Prisons.  The commentary explains that the departure may apply when “the defendant is located by immigration authorities while the defendant is serving time in state custody.”  The text of the Sentencing Commission’s amendments is available here.

Supreme Court review and preview

Warrantless searches of cell phones 
The Supreme Court’s conclusion that police cannot ordinarily search a cell phone without a warrant leads the list of Supreme Court cases that merit review.  In Riley v. California, 134 S.Ct. 2473 (2014), the Supreme Court considered two cases in which individuals were arrested for one offense and then law enforcement used information on the individuals’ phones to tie the individuals to other, more serious crimes.  In a unanimous opinion, the Court appeared to have little trouble concluding that cell phones cannot be searched as part of the arrest process and that police must usually get a warrant to search a cell phone.  Id. at 2485.  Perhaps more notable than the unanimity of the Court was its professed familiarity with app stores (both Apple and Android), cloud computing, and the integration of digital devices into modern life.  Id. at 2490 (indicating familiarity with “the phrase ‘there's an app for that’” and that “[a]ccording to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”).  The Court’s willingness to embrace these technological advances may indicate a willingness to reconsider traditional rules governing the Fourth Amendment.  See United States v. Jones, 132 S.Ct. 945, 957 (2012) (Sotomayor, J., concurring) (“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.  This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”).
Anonymous tips
   A traffic stop often marks the beginning of a case and the Supreme Court’s decision in Navarette v. California, 134 S.Ct. 1683 (2014), sheds some light on when an anonymous tip can provide reasonable suspicion for a stop.  In Navarette, the police received a 911 call that claimed a truck had run the caller off the road.  Id. at 1687.  The truck in question was identified by its model, color and license plate number.  The caller was identified by name, but that name was not included in the radio dispatch that followed.  Id. at 1687 n.1.  A patrolling California Highway Patrol officer heard the dispatch and saw a vehicle matching the description.  The officer did not observe a moving violation and stopped the truck solely on the basis of the tip.  Id. at 1695 (Scalia, J., dissenting).  Naturally, when the officer searched the truck after smelling marijuana, he found four large bags of marijuana. 
   While the majority thought this was a “close case,” id. at 1692, it affirmed the lower courts’ conclusion that “the stop complied with the Fourth Amendment because, under a totality of the circumstances, the officer had reasonable suspicion that the driver was intoxicated,” id. at 1686.  The case thus fell somewhere between prior cases where there was no question that the detailed tip provided reasonable suspicion for the stop, Alabama v. White, 496 U.S. 325 (1990), and those “bare bones tips[s]” that will not provide reasonable suspicion, Florida v. J. L., 529 U.S. 266 (2000).  The Second Circuit recently dealt with a similar case, United States v. Freeman, 735 F.3d 92 (2d Cir. 2013), which was discussed in the last issue of The Defense Post.
Accomplice liability
   In Rosemond v. United States, 134 S.Ct. 1240 (2014), the Supreme Court considered accomplice liability in the context of an 18 U.S.C. § 924(c) prosecution for using or carrying “a firearm during and in relation to any crime of violence or drug trafficking crime.”  While someone convicted of aiding and abetting an offense need not take part in the entire offense, that person must possess the intent to further the whole offense.  Id. at 1246-1247.  With respect to § 924(c), which contemplates both the use of a firearm as well as a drug trafficking offense, someone charged with aiding and abetting the offense must have the specific intent that “an armed drug sale” take place.  Id. at 1249.  That is, the person must intend that there be a drug trafficking crime (or crime of violence) and that a firearm be used.  Notably, this level of specific intent can only be shown if the defendant knew about the firearm in advance of the transaction (or violent crime):
[T]he § 924(c) defendant's knowledge of a firearm must be advance knowledge—or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice.  When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense.  But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime.  And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun.
Id. at 1249.
Supreme Court preview (traffic stops & First Amendment issues)
   This term, the Supreme Court will hear at least two cases involving traffic stops.  In Heien v. North Carolina, 737 S.E.2d 351 (N.C. 2013), the Supreme Court granted certiorari to consider whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.  In Heien, the defendant was stopped after a police officer observed that he had a brake light out.  Id. at 352.  Apparently, North Carolina does not require that all brake lights function and so the officer was mistaken that a traffic violation had occurred.  Id. at 353.  The North Carolina Supreme Court concluded that the mistake was reasonable and that suppression was not warranted. 
   In Rodriguez v. United States, the Supreme Court will consider whether a dog sniff conducted after the conclusion of a legitimate traffic stop violates the Fourth Amendment.  The Court has previously held that “the use of a well-trained narcotics-detection dog . . . during a lawful traffic stop, generally does not implicate legitimate privacy interests.”  Illinois v. Caballes, 543 U.S. 405, 409 (2005).  In Rodriguez, 741 F.3d 905, 907-908 (8th Cir. 2014), the Eighth Circuit extended Caballes and approved the use of a narcotics-detection dog to conduct a sniff shortly after the conclusion of the otherwise legitimate stop.  In this regard, the Rodriguez Court concluded that the “seven- or eight-minute delay . . . constituted a de minimis intrusion on Rodriguez’s personal liberty.”  Id. at 907-908.
   Elonis v. United States, presents a First Amendment question for the Court’s review involving whether proof of a defendant’s subjective intent is required to prove a true threat.  For its part, the Third Circuit concluded that proof of a defendant’s subjective intent is not required.  United States v. Elonis, 730 F.3d 321, 332 (3d Cir. 2013).  In so holding, the Elonis Court rejected the defendant’s claim that Virginia v. Black, 538 U.S. 343 (2003), overruled the reasonable speaker standard, which requires that:
the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President, and that the statement not be the result of mistake, duress, or coercion.
Elonis, 730 F.3d at 328 (citations omitted).  The Third Circuit thus explained that language in Black that seemed to require proof of a subjective intent to threaten could be explained by virtue of the unique state statute at issue in the case.  Id. at 329 (quoting Black, 538 U.S. at 360, where the Court explained that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).  In so holding, the Third Circuit joined the majority of circuits, whereas the Ninth Circuit and the supreme court of several states, including Vermont, have held otherwise.
Second Circuit review
   In recent months, the Second Circuit has issued notable opinions dealing with trial practice, prosecutorial misconduct, and the Fourth and Fifth Amendments.  In United States v. Groysman, --- F.3d ----, 2014 WL 4337798 (Sept. 3, 2014), the defendant was convicted of various fraud offenses following a trial.  On appeal, the government conceded that significant portions of its case agent’s testimony were hearsay and that a number of summary exhibits had been improperly admitted.  Id. at *8-9.  The Second Circuit rejected the government’s claim that the errors were harmless and instead vacated the conviction because it concluded that
[T]he government's entire strategy was dependent on, and tainted by, the egregious errors that the government now admits.  These errors . . . so infected the fairness of the trial that Groysman's conviction would have been overturned in all but perhaps the most airtight of cases.
Id. at *10.  The Second Circuit explained that the effect of the conceded errors was magnified by the government’s use of the case agent as a kind of expert.  The use of the case agent in this type of role had special dangers because:
When “a case agent also functions as an expert for the government, the government confers upon him” an “aura of special reliability and trustworthiness,” creating a “risk of prejudice . . . that increases when the witness has supervised the case.”
Id. *14 (citation omitted).  This, plus the fact that the case agent engaged in significant bolstering of lesser witnesses, lent weight to the court’s conclusion that the “errors, would seriously affect the fairness, integrity, and public reputation of these judicial proceedings” and required that the conviction be vacated.  Id. at *15.
Miranda and Fifth Amendment
   In Jackson v. Conway, 763 F.3d 115 (2d Cir. 2014), the Second Circuit affirmed in part a limited grant of habeas relief based on the state court’s error in denying the defendant’s motion to suppress his statements.  The defendant in Jackson was prosecuted for several sexual assaults and statements made by him (while in custody) to a child protective services investigator were introduced by the government at trial.  Id. at 127-128.  Writing for the court in a lengthy opinion, Judge Hall explained that the state trial court’s decision not to suppress statements made by the defendant to child protective services “constituted an objectively unreasonable application of . . . Supreme Court precedent.”  Id. at 136.  It was readily apparent, the Second Circuit observed, that the Supreme Court’s decision in Mathis v. United States, 391 U.S. 1 (1968), largely resolved the question.  In Mathis, the defendant was in custody on state charges when he was interviewed by an IRS agent.  Id. at 2.  The Supreme Court concluded that such an interview violated Miranda and thus the statements had to be excluded.  Id. at 4-5.  The Second Circuit concluded that in Mathis it was the possibility that the IRS investigation would lead to charges that was important to the Supreme Court’s conclusion that there was a Miranda violation.  Id. at 138-139.  In Jackson, there was also a strong possibility that the child protective services investigation would lead to a prosecution and that the questions asked could elicit incriminating responses.  Accordingly, the statements should have been suppressed.
Fourth Amendment
   In June, the Second Circuit issued what the Washington Post called “a very important new Fourth Amendment case.”  Orin Kerr, Court adopts a Fourth Amendment right to the deletion of non-responsive computer files, Washington Post (June 18, 2014).  Thus, in United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014), the Second Circuit held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.  The panel in Ganias was divided over the question of whether the violation required exclusion of the evidence and Judge Hall dissented from that portion of the opinion requiring that the evidence be excluded.
   The Ganias case began with a November 2003 search of an accountant’s office by Army investigators.  Id. at 128.  Although the warrant limited the search to files related to only two of the accountant’s clients, investigators made forensic mirror copies of all the hard drives in the office.  Investigators did not immediately segregate or purge non-relevant information, but had isolated and extracted relevant files by December 2004, prior to the start of the case against the accountant.  Id. at 129.  Eventually, in April 2006, the government obtained a warrant to search the balance of the retained files and the accountant was convicted of various tax charges following a jury trial.  Id. at 130.
   Important to the Second Circuit’s opinion was the close analogy between the use of general warrants by Great Britain and the government’s actions in this case:
“The chief evil that prompted the framing and adoption of the Fourth Amendment was the ‘indiscriminate searches and seizures' conducted by the British ‘under the authority of general warrants.’”  General warrants were ones “not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application.”  The British Crown had long used these questionable instruments to enter a political opponent's home and seize all his books and papers, hoping to find among them evidence of criminal activity.
Id. at 134 (citations omitted).  Against this background, the Ganias Court concluded that the Fourth Amendment would not “permit[] officials executing a warrant for the seizure of particular data on a computer to seize and indefinitely retain every file on that computer for use in future criminal investigations.”  Id. at 137.  Because the government had effectively executed a general warrant, the Second Circuit concluded that the Fourth Amendment had been violated:
The Fourth Amendment was intended to prevent the Government from entering individuals' homes and indiscriminately seizing all their papers in the hopes of discovering evidence about previously unknown crimes.  Yet this is exactly what the Government claims it may do when it executes a warrant calling for the seizure of particular electronic data relevant to a different crime.  Perhaps the “wholesale removal” of intermingled computer records is permissible where off-site sorting is necessary and reasonable, but this accommodation does not somehow authorize the Government to retain all non-responsive documents indefinitely, for possible use in future criminal investigations.
Id. at 139-140 (citations omitted).  The opinion is replete with useful language and reasoning.  Although the panel rejected the defendant’s juror misconduct claim, the opinion contains a noteworthy discussion about jurors’ use of social media.  Id. at 131-133. 
   Several other cases merit mention and deal with:  prosecutorial misconduct and cumulative error, United States v. Cert. Envtl. Servs., 753 F.3d 72 (2d Cir. 2014) (explaining that “we would hesitate to vacate and remand this case for a new trial based on any one of the errors discussed above in isolation” but “evidentiary errors and prosecutorial misconducted infected every stage of the trial below”); limitations on cross examination and the Sixth Amendment, Alvarez v. Ercole, 763 F.3d 223 (2d Cir. 2014); jury instructions and entrapment, United States v. Kopstein, 759 F.3d 168 (2d Cir. 2014); and the cost of incarceration as a permissible sentencing factor, United States v. Park, 758 F.3d 193 (2d Cir. 2014).
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