THE OFFICES OF THE FEDERAL PUBLIC DEFENDERS FOR THE EASTERN AND WESTERN DISTRICTS OF VIRGINIA JOINTLY PRESENT THE EIGHTH FRANK DUNHAM FEDERAL CRIMINAL DEFENSE CONFERENCE Thursday, April 9 - Friday, April 10, 2015 DoubleTree Hotel, Charlottesville, Virginia
TABLE OF CONTENTS Program Schedule.................................................. Faculty Information................................................. iv vi Supreme Court Review............................................... 1 Paul M. Rashkind, United States Supreme Court: Review, Preview, and Overview of Criminal Cases (as of April 1, 2015)..................... 2 Ethics: Representing the Sovereign Citizen.............................. 35 Patrick R. Hanes & Andrea Lantz Harris, Ethics: Representing the Sovereign Citizen............................................. 36 Excerpts, Virginia Rules of Professional Conduct.................... 51 J.J. MacNab, Sovereign Citizen Kane, Southern Poverty Law Center Intelligence Report (Fall 2010)................................... 57 The Sovereigns: A Dictionary of the Peculiar, Southern Poverty Law Center Intelligence Report (Fall 2010)............................. 64 Fourth Circuit Update............................................... 67 Discussion Overview.......................................... 67 Frances H. Pratt, Fourth Circuit Decisions on Criminal Law and Procedure (April 1, 2014 - March 31, 2015)........................ 69 Case Budgeting in the Fourth Circuit................................... 97 Presentation Slides............................................ 98 Indicators of a Possible Mega-Case.............................. 106 Mega-Case Budgeting Forms................................... 107 FDFCDC i
Capital Case Budgeting Forms.................................. 110 Sample, Ex Parte Memorandum in Support of Proposed Case Budget... 113 Engagement Letters for Service Providers......................... 116 Service Provider Time Worksheet............................... 120 Interpreting Opioid Overdose Death: A Medical Toxicologist s Perspective..................................... 121 Gregory G. Davis et al, Recommendations for the Investigation, Diagnosis, and Certification of Deaths Related to Opioid Drugs: Technical Report, 3 Acad. Forensic Pathol. 62 (2013)............... 122 Gregory G. Davis et al, Recommendations for the Investigation, Diagnosis, and Certification of Deaths Related to Opioid Drugs: Position Paper, 3 Acad. Forensic Pathol. 77 (2013)................. 137 William Osler, Edema of Left Lung Morphia Poisoning, 1880 Mont. Gen. Hosp. Reports 291....................................... 144 The Science of Persuasion: How Cognitive Science Can Improve the Way We Write................................. 145 Christopher Corts & Laura A. Webb, Thinking Like a Lawyer Scientist: Using Cognitive Science to Persuade............................. 146 Determining What Is, or Is Not, a Crime of Violence or Violent Felony............................................ 157 Violent Crime Cheat Sheet................................... 158 How to Determine If Your Client Is a Career Offender or an Armed Career Criminal.............................................. 159 Elements of the Generic Enumerated Offenses for ACCA and Career Offender.................................................... 164 Selected Statutes and Guidelines................................ 166 FDFCDC ii
Selected Recent Fourth Circuit Decisions on ACCA, Career Offender, and Aggravated Felonies....................................... 168 Ethics: Game Show Potpourri, Round II................................ 173 Discussion Overview......................................... 173 Professionalism Course 2014-2015: Major Disciplinary Problems...... 176 Christine Harvey et al., 10 Tips for Avoiding Ethical Lapses When Using Social Media, Business Law Today (ABA Business Law Section January 2014)............................................... 182 Proposed Legal Ethics Opinion, LEO 1880 (re. duties of attorney in advising indigent client about appeal)............................ 190 Comment of Federal Public Defender in Opposition to Proposed LEO 1880....................................................... 199 James M. McCauley, Ethics Update 2012 Hot Topics in Legal Ethics........................................................... 202 FDFCDC iii
PROGRAM SCHEDULE Thursday, April 9 1:30 Program check-in begins 2:25 Welcome and Introduction Geremy Kamens, Acting FPD E.D. Va. Larry Shelton, FPD W.D.Va. 2:30 Supreme Court Review Paul Rashkind, AFPD S.D. Fla. 3:45 Break 4:00 Ethics: Representing the Patrick Hanes, Esq., CJA E.D. Va. Sovereign Citizen Andrea Harris, AFPD W.D. Va.. 5:00 Adjourn for evening Friday, April 10 7:30 Breakfast begins 8:00 Program check-in continues 8:25 Welcome and Introduction Geremy Kamens, Acting FPD E.D. Va. Larry Shelton, FPD W.D. Va. 8:30 Fourth Circuit Update Alan DuBois, AFPD E.D.N.C. Patrick Bryant, RWA E.D. Va. 9:30 Case Budgeting in the Fourth Circuit Larry Dash, Fourth Circuit CJA Case Budgeting Attorney 10:15 Break 10:30 Interpreting Opioid Overdose Death: Edward Boyer, MD, PhD A Medical Toxicologist s Perspective FDFCDC iv
11:30 Keynote Address Hon. Julian Bond (lunch provided) 1:00 The Science of Persuasion: How Prof. Christopher Corts Cognitive Science Can Improve Prof. Laura Webb the Way We Write 2:00 Determining What Is, or Is Not, Elizabeth Hanes, AFPD, E.D. Va. a Crime of Violence or Violent Mary Maguire, AFPD, E.D. Va. Felony 3:00 Break 3:15 Ethics: Game Show Potpourri, Ken Troccoli, AFPD E.D. Va. Round II Aamra Ahmad, Esq. 4:15 Complete evaluations 4:30 Program concludes FDFCDC v
FACULTY INFORMATION AAMRA S. AHMAD Assistant Federal Public Defender Emerita, Eastern District of Virginia Education: Professional: B.A. 1999, Wellesley College; J.D. 2003, University of Michigan Law School Law clerk, Hon. James P. Jones, U.S. District Court, Western District of Virginia, 2003-04; associate, Terris Pravlik & Millian, Washington, DC, 2004-07; assistant federal public defender, Alexandria, Virginia, 2007-14 EDWARD W. BOYER Chief, Division of Medical Toxicology, UMass-Memorial Medical Center, Boston, Massachusetts Education: Experience: B.A. 1983, Vanderbilt University; M.A. 1984, Columbia University; M. Phil. 1986, Columbia University; Ph.D. 1988, Columbia University; NIH Postdoctoral Fellow 1989-90, The Rockefeller University; M.D. 1995, Columbia College of Physicians and Surgeons Residency in Emergency Medicine, Hospital of the University of Pennsylvania; Fellowship in Medical Toxicology, Boston Children s Hospital, Boston, Massachusetts; currently chief, Division of Medical Toxicology, UMass-Memorial Medical Center, Boston, Massachusetts; Professor of Emergency Medicine, University of Massachusetts Medical School PATRICK L. BRYANT Appellate Attorney, Office of the Federal Public Defender, Eastern District of Virginia Education: B.A. 1998, Duke University; J.D. 2002, Washington and Lee University School of Law FDFCDC vi
Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2002-04 and 2005-07; law clerk, Hon. Charles R. Wilson, U.S. Court of Appeals for the Eleventh Circuit, Tampa, Florida, 2004-05; appellate attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2007-present CHRISTOPHER CORTS Assistant Professor of Legal Writing, University of Richmond School of Law Education: Professional: B.A. 1994, Otterbein College; M.A. 2008, Fuller Theological Seminary; J.D. 2011, University of Virginia School of Law Associate, Carlton Fields, Miami, Florida, 2011-13; assistant professor of legal writing, University of Richmond School of Law, 2013-present LARRY M. DASH CJA Case Budgeting Attorney, U.S. Court of Appeals for the Fourth Circuit Education: Professional: B.A. 1982, Columbia College (Missouri); J.D. 1989, Touro College, Jacob D. Fuchsberg Law Center Assistant staff judge advocate, U.S. Air Force, 1991-94; circuit trial counsel, U.S. Air Force, 1994-97; associate, Greg D. McCormack, P.C., Virginia Beach, Virginia, 1997-98; private practice, Newport News, Virginia, 1998-2001; assistant federal public defender, Norfolk, Virginia, 2001-14; CJA case budgeting attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2014-present G. ALAN DUBOIS First Assistant Federal Public Defender, Eastern District of North Carolina Education: B.A. 1984, Duke University; J.D. 1987, University of Virginia School of Law FDFCDC vii
Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 1988-89; assistant federal public defender (senior appellate attorney), Raleigh, North Carolina, 1989-2013; first assistant federal public defender, Raleigh, North Carolina, 2013-present ELIZABETH W. HANES Assistant Federal Public Defender, Eastern District of Virginia Education: Professional: B.A. 2000, University of Richmond; J.D. 2007, University of Richmond School of Law Law clerk, Hon. Joseph R. Goodwin, U.S. District Court, Southern District of West Virginia, Charleston, West Virginia, 2007-08; law clerk, Hon. Robert B. King, U.S. Court of Appeals for the Fourth Circuit, Charleston, West Virginia, 2008-09; assistant federal public defender, Richmond, Virginia, 2009-present; adjunct professor, Virginia Commonwealth University, 2014-present PATRICK R. HANES Partner, Williams Mullen, Richmond, Virginia Education: Professional: B.A. 1988, University of Virginia; J.D. 1994, University of Virginia School of Law Law clerk, Hon. Albert V. Bryan, Jr., U.S. District Court, Eastern District of Virginia, 1994-95; associate, Williams Mullen, Richmond, Virginia, 1994-2002; partner, Williams Mullen, 2002- present; deputy counsel, Williams Mullen, 2014-present; adjunct professor, Washington and Lee School of Law, 2013-present ANDREA LANTZ HARRIS Assistant Federal Public Defender, Western District of Virginia Education: B.A. 1988, University of Notre Dame; J.D. 1994, University of Louisville FDFCDC viii
Professional: Solo practitioner, Charlottesville, Virginia, 1995-99; assistant public defender, Charlottesville Public Defender Office, 1999-2006; assistant federal public defender, Charlottesville, Virginia, 2006-present MARY E. MAGUIRE Assistant Federal Public Defender, Eastern District of Virginia Education: Professional: B.A. 1986, Middlebury College; J.D. 1991, Georgetown University Law Center Legislative assistant & assembly fellow, California State Assembly, 1986-88; assistant federal defender, Federal Defenders of San Diego, Inc., 1991-94; associate, Cohen & Hubachek, San Diego, California, 1994-96; Law Office of Mary E. Maguire, San Diego, California, 1996-97; project associate, ABA Death Penalty Representation Project, Washington, DC, 1997-98; senior assistant public defender, Alexandria, Virginia, 1998-2001; assistant federal public defender, Richmond, Virginia, 2001- present; adjunct professor, University of Richmond School of Law, 2004-present; adjunct professor, Virginia Commonwealth University, 2013-present PAUL M. RASHKIND Supervisory Assistant Federal Public Defender, Southern District of Florida Education: Professional: B.B.A. 1972, University of Miami; J.D. 1975, University of Miami School of Law Assistant state attorney, Miami, Florida, 1975-78; chief assistant state attorney (appeals), Miami, Florida, 1977-78; associate, Sams Gerstein & Ward, 1978-83; partner, Bailey, Gerstein, Rashkind & Dresnick, 1984-92; chief of appeals and supervisory assistant federal public defender, Miami, Florida, 1992-present FDFCDC ix
KENNETH P. TROCCOLI Assistant Federal Public Defender, Eastern District of Virginia Education: Professional: B.A. 1981, Boston College; J.D. 1984, George Washington University Law School; LL.M. 2001, Georgetown University Law Center Law clerk, Hon. H. Carl Moultrie, Superior Court of the District of Columbia, Washington, DC, 1984-85; associate, Krooth & Altman, Washington, DC, 1986-88; associate, Arent Fox Kintner Plotkin & Kahn, Washington, DC, 1988-91; associate, Cadwalader Wickersham & Taft, Washington, DC, 1991-92; assistant/senior assistant public defender, Alexandria, Virginia, 1992-99; assistant federal public defender, Alexandria, Virginia, 2002-present; adjunct professor, American University Washington College of Law, 2012-present LAURA A. WEBB Assistant Professor of Legal Writing, University of Richmond School of Law Education: Professional: B.A. 1996, George Washington University; J.D. 1999, University of Virginia School of Law Associate, McCandlish Holton, PC, Richmond, Virginia, 1999-2003; associate, Reed Smith, LLP, Richmond, Virginia, 2003-04; adjunct associate professor, University of Richmond School of Law, 2006-13; assistant professor of legal writing, University of Richmond School of Law, 2013-present FDFCDC x
SUPREME COURT REVIEW Paul M. Rashkind NOTES FDFCDC 1
I. SEARCH & SEIZURE UNITED STATES SUPREME COURT REVIEW - PREVIEW - OVERVIEW CRIMINAL CASES DECIDED AND GRANTED REVIEW FOR THE OCTOBER 2014-15 TERMS THRU APRIL 1, 2015 PAUL M. RASHKIND CHIEF, APPELLATE DIVISION OFFICE OF THE FEDERAL PUBLIC DEFENDER, S.D. FLA. A. Electronic Privacy 1. Satellite Based Monitoring of Felon. Grady v. North Carolina, 135 S. Ct. (March 30, 2015) (per curiam). Torrey Dale Grady was convicted in North Carolina trial courts of a second degree sexual offense in 1997 and of taking indecent liberties with a child in 2006. After serving his sentence for the latter crime, Grady was ordered to appear in New Hanover County Superior Court for a hearing to determine whether he should be subjected to satellite-based monitoring (SBM) as a recidivist sex offender under state law. The law provides, The satellite-based monitoring program shall use a system that provides all of the following: (1) Time-correlated and continuous tracking of the geographic location of the subject.... (2) Reporting of subject s violations of prescriptive and proscriptive schedule or location requirements. N.C. Gen. Stat. Ann. 14 208.40(c). Grady did not dispute that his prior convictions rendered him a recidivist under the relevant North Carolina statutes, but argued that the monitoring program under which he would be forced to wear tracking devices at all times would violate his Fourth Amendment right to be free from unreasonable searches and seizures. Unpersuaded, the trial court ordered Grady to enroll in the program and be monitored for the rest of his life. Grady renewed his Fourth Amendment challenge on appeal, relying on the Supreme Court s decision in United States v. Jones, 565 U.S. (2012) (police officers engaged in a search within the meaning of the Fourth Amendment when they installed and monitored a Global Positioning System (GPS) tracking device on a suspect s car). The North Carolina Court of Appeals rejected Grady s argument, concluding that it was foreclosed by one of its earlier decisions. The North Carolina Supreme Court summarily dismissed Grady s appeal and denied his petition for discretionary review. The U.S. Supreme Court reversed and remanded, finding that SBM is a search under the Fourth Amendment: The State s program is plainly designed to obtain information. And since it does so by physically intruding on a subject s body, it effects a Fourth Amendment search. That said, the Court noted that the second component of Fourth Prepared by Paul M. Rashkind 1 FDFCDC 2
Amendment analysis is the reasonableness of the search. It remanded to the state court to make the reasonableness determination. That conclusion [that SBM is a search], however, does not decide the ultimate question of the program s constitutionality. The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. See, e.g., Samson v. California, 547 U.S. 843 (2006) (suspicionless search of parolee was reasonable); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of student athletes was reasonable). The North Carolina courts did not examine whether the State s monitoring program is reasonable when properly viewed as a search and we will not do so in the first instance. 2. Cell Phone Privacy. Riley v. California and United States v. Wurie, 134 S. Ct. 2473 (June 25, 2014). In a consolidated opinion denominated Riley v. California, the unanimous Supreme Court held that officers must generally secure a warrant before searching digital information on a cell phone seized from an individual who has been arrested. Chief Justice Roberts wrote an opinion, beginning with the reminder that, In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. See Kentucky v. King, 563 U.S., (2011). Search incident to lawful arrest, the Court held, is not such an exception. Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life, Boyd [v. United States, 116 U.S. 616, 630 (1886)]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple get a warrant. Although the search-incident-to-arrest exception to the Fourth Amendment does not apply, the Court s opinion indicates that the exigentcircumstances exception may apply to cell phone searches, but only when there are case-specific exigent circumstances, requir[ing] a court to examine whether an emergency justified a warrantless search in each particular case. Although the decision was unanimous, Justice Alito wrote an opinion concurring in part and concurring in the judgment. To put the decision in context, the facts of the Riley and Wurie cases follow: Riley Police stopped David Riley, a local college student, who was driving his Lexus near his home in San Diego. The officer who initiated the stop told Riley that he had pulled him over for having expired tags. The officer soon learned that Riley was driving with a suspended license and decided to impound Riley s car. During the inventory search, officers discovered two firearms under the car s hood. Based on this discovery, Riley was arrested for carrying concealed and loaded weapons. The arresting officer seized Riley s cell phone from his Prepared by Paul M. Rashkind 2 FDFCDC 3
person. It was a Samsung Instinct M800, a smartphone similar to an iphone, capable of accessing the internet, capturing photos and videos, and storing both voice and text messages, among other functions. Police officers performed two separate, warrantless searches of its digital contents: (1) The arresting officer scrolled through the phone s contents at the scene. He noticed that some words (apparently in text messages and the phone s contacts list) normally beginning with the letter K were preceded by the letter C. The officer believed that the CK prefix referred to Crip Killers, a slang term for members of a criminal gang known as the Bloods. (2) The second search took place hours later at the police station. After conducting an interrogation in which Riley was nonresponsive, a detective specializing in gang investigations, went through Riley s cell phone. The detective searched through a lot of stuff on the phone looking for evidence. He found several photographs and videos that suggested Riley was a member of a gang. He also found a photo of Riley with another person posing in front of a red Oldsmobile that the police suspected had been involved in an earlier gang-related shooting. Riley was eventually charged and convicted of shooting at an occupied vehicle, attempted murder, and assault with a semiautomatic firearm, all for the benefit of a criminal street gang. Prosecutors tied him to the crime, in part, due to the photograph on his smartphone that showed him posing in front of a car similar to one seen at the crime scene. After losing his search and seizure challenges in state court, Riley petitioned the Supreme Court to consider, Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual s cell phone seized from the person at the time of arrest. In granting cert, the Supreme Court reworded the question presented as: Whether evidence admitted at petitioner s trial was obtained in a search of petitioner s cell phone that violated petitioner s Fourth Amendment rights. Wurie A police officer noticed Brima Wurie make an apparent drug sale out of his car that the officer believed to have been arranged by cell phone. After the transaction, the officer confronted the buyer and found two bags of crack cocaine in his pocket. The buyer told the officer that he had purchased the drugs from B, the driver of the car, who was a crack dealer living in South Boston. Officers following Wurie then arrested him for drug distribution, read him the Miranda warnings, and drove him to a nearby police station, where they seized two cell phones, a set of keys, and more than one thousand dollars in cash from his person. Five to ten minutes after Wurie arrived at the station, officers noticed that one of Wurie s cell phones, a flip phone that a user must open to make calls, was repeatedly receiving calls from a number identified as my house on the phone s external screen. Minutes later, the officers opened the phone to check its call log. They saw a photo of a woman holding a baby set as the internal screen s wallpaper. The officers pressed one button to navigate to the phone s call log, then pressed another button to obtain the number for my house. They did not view any other information Prepared by Paul M. Rashkind 3 FDFCDC 4
B. Motor Vehicles stored on the phone. The officers typed the number for my house into an online directory and learned that it was associated with an address on Silver Street in South Boston near where Wurie had parked his car before his arrest. The officers drove to the Silver Street address, where they found a mailbox labeled with Wurie s name and observed through the window of a first-floor apartment a woman who closely resembled the woman in the wallpaper on Wurie s phone. The officers then obtained and executed a search warrant for the apartment. They ultimately seized crack cocaine, marijuana, cash, a firearm, and ammunition from inside. Based on this evidence, Wurie was convicted of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922(g); distributing crack cocaine, in violation of 21 U.S.C. 841(a); and possessing crack cocaine with intent to distribute, in violation of 21 U.S.C. 841(a). He was sentenced to 262 months in prison. He successfully challenged the search on appeal, but the government sought review in the Supreme Court. The Court had granted cert to resolve the question: Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested. 1. Anonymous Tip as Reasonable Suspicion to Stop Vehicle. Prado Navarette v. California, 134 S. Ct. 1683 (Apr. 22, 2014). A police dispatcher received a 911 call saying a silver Ford 150 truck had run the caller off the road. The vehicle was identified by its model, color and license plate. The caller was identified by name, but that name was not included in the radio dispatch that followed. A patrolling California Highway Patrol officer heard the dispatch, saw the vehicle matching the description, and stopped the truck. The officer did not observe erratic driving, but acted solely on the tip. The officer searched the truck after smelling marijuana, finding four large bags of pot. The driver and passenger were arrested, and later pleaded guilty to transporting marijuana. Before pleading guilty, they unsuccessfully sought to suppress evidence derived from the stop. They argued that the anonymous tip received by police was insufficient to provide reasonable suspicion of criminal activity justifying an investigative stop of the vehicle, where the officers directly confirmed only significant innocent details of the tip but did not directly observe any illegal activity. They appealed that adverse ruling, but the California Court of Appeal concluded that the totality of the circumstances supported a finding of reasonable suspicion, justifying the traffic stop. The Supreme Court granted cert to determine whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle. In a 5-4 decision authored by Justice Thomas, the majority affirmed, holding that the stop complied with the Fourth Amendment because, under a totality of the circumstances, the officer had reasonable Prepared by Paul M. Rashkind 4 FDFCDC 5
suspicion that the driver was intoxicated. The majority noted this is a close case but that the indicia of reliability here is stronger than in other Supreme Court cases in which there was only a bare-bones tip, e.g., Florida v. J.L. (bare-bones tip unreliable). The underlying premise of the decision was simple: We have firmly rejected the argument that reasonable cause for a[n] investigative stop] can only be based on the officers s personal observation, rather than information supplied by another person. Justice Scalia dissented (joined by Ginsburg, Sotomayor and Kagan), noting that the majority opinion purports to adhere to our prior cases and does not explicitly adopt... a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated. The California Court of Appeal in this case relied on jurisprudence from the California Supreme Court (adopted as well by other courts) to the effect that an anonymous and uncorroborated tip regarding the possibility of an intoxicated driver provides without more reasonable suspicion to justify a stop.... Today s decision does not explicitly adopt such a departure from our normal Fourth Amendment requirement that anonymous tips must be corroborated; it purports to adhere to our prior cases, such as Florida v. J.L. and Alabama v. White. But, Justice Scalia cautions: Be not deceived. The Court s opinion serves up a freedom-destroying cocktail. He explains: Law enforcement agencies follow closely our judgments on matters such as this, and they will identify at once our new rule: So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers, of a people secure from unreasonable searches and seizures. [A portion of this summary was prepared by Sentencing Resource Counsel Laura Mate]. 2. Extending Traffic Stop for Dog Sniff Absent Reasonable Suspicion. Rodriguez v. United States, 135 S. Ct. 43 (cert. granted Oct. 2, 2014); decision below at 741 F.3d 905 (8th Cir. 2014). Just after midnight, police officer Morgan Struble observed a vehicle veer slowly onto the shoulder of the highway, before it jerked back onto the road. Struble initiated a traffic stop of the vehicle at 12:06 a.m. Struble is a K-9 officer, and his dog Floyd was with him that night. Struble approached the vehicle on the passenger s side. The driver identified himself as Rodriguez. When asked why he drove onto the shoulder, Rodriguez replied that he had swerved to avoid a pothole. The passenger, who would not make eye contact with Struble, identified himself as Scott Pollman. Struble gathered Rodriguez s license, registration, and proof of insurance and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble said that he was not. Rodriguez then decided to wait in his own vehicle. Struble went to his patrol car to complete a records check on Rodriguez. When he returned to Rodriguez s vehicle, Struble asked Pollman for his identification and inquired where Pollman and Rodriguez had been. Pollman explained that Prepared by Paul M. Rashkind 5 FDFCDC 6
they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska. When Struble went to his patrol car for a second time, he completed a records check on Pollman and called for a second officer. Struble issued a written warning to Rodriguez at 12:27 or 12:28 a.m. Struble then asked for permission to walk his dog around Rodriguez s vehicle. When Rodriguez refused consent, Struble instructed him to exit the vehicle. Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive. At 12:33 a.m., a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez s car. The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later. All told, seven or eight minutes had passed from the time Struble had issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. Rodriguez was eventually charged with possessing with intent to distribute methamphetamine. Question presented: This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are de minimis intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification. 3. Traffic Stop Based on Mistake of Law Is Reasonable. Heien v. North Carolina, 135 S. Ct. 530 (Dec. 15, 2014). Vasquez was driving Heien s vehicle in North Carolina, but was stopped by a police officer because one of his brake lights was out. Heien was a passenger in the back seat. Following a license and registration check, Vasquez was asked for permission to search the vehicle, which he declined, noting that the vehicle belonged to Heien. Heien was then asked for permission to search, which he gave. Police found a plastic bag of cocaine and charged them both. Vasquez pleaded guilty, but Heien moved to suppress, arguing that police had no valid Fourth Amendment basis for the stop because there was no articulable suspicion of criminal activity, nor of a traffic infraction. The trial court denied the motion and Heien pleaded guilty, reserving the right to appeal the suppression ruling. The state court of appeals reversed, finding that state law only requires one working taillight and held that an officer s mistaken belief that a defendant has committed a traffic violation is not an objectively reasonable justification for a traffic stop. The North Carolina Supreme Court vacated that ruling, despite noting that [v]arious federal and state courts have provided different answers to the question whether a stop is... permissible when an officer witnesses what he reasonably, though mistakenly, believes to be a traffic violation. In doing so, the state supreme court adopted the minority view on Prepared by Paul M. Rashkind 6 FDFCDC 7
the issue, holding that so long as an officer s mistake is reasonable, it may give rise to reasonable suspicion. [R]equiring an officer to be more than reasonable, mandating that he be perfect, would impose a greater burden than that required under the Fourth Amendment. The North Carolina Supreme Court further held that the officer s mistake was reasonable because [w]hen the stop at issue in this case occurred, neither this Court nor the Court of Appeals had ever interpreted our motor vehicle laws to require only one properly functioning brake light. The U.S. Supreme Court affirmed (8-1) in a decision authored by Chief Justice Roberts: The Fourth Amendment prohibits unreasonable searches and seizures. Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment. But what if the police officer s reasonable mistake is not one of fact but of law? In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment. Justices Kagan and Ginsburg concurred, stressing that the officer s error had to be objectively reasonable, and that errors of law concerning the contours of the Fourth Amendment itself can never support a valid search and seizure. Justice Sotomayor dissented, preferring a subjective analysis of the officer s knowledge: I would hold that determining whether a search or seizure is reasonable requires evaluating an officer s understanding of the facts against the actual state of the law. 4. Qualified Immunity for Use of Deadly Force in High Speed Chase. Plumhoff v. Rickard, 134 S. Ct. 2012 (May 27, 2014). In 2004, Donald Rickard was killed when he lost control of his vehicle after being shot by police officers following a high-speed pursuit that began at a gas station next to an interstate highway entrance in West Memphis, Arkansas, and ended on the streets of Memphis, Tennessee. His estate filed a 1983 suit against police officers for excessive force, in violation of the Fourth and Fourteenth Amendments. In such cases, a court must grant qualified immunity unless the use of force was prohibited by clearly established law. Here, the Sixth Circuit denied qualified immunity for force used in to end a vehicular pursuit that is similar to the force ruled permissible by the Supreme Court in Scott v. Harris, 550 U.S. 372 (2007). The Sixth Circuit denied qualified immunity by distinguishing Scott in the details from the force used three years earlier in this case. The Sixth Circuit applied a similar analysis in Walker v. Davis, 649 Prepared by Paul M. Rashkind 7 FDFCDC 8
F.3d 502 (6th Cir. 2011), where it also distinguished Scott to deny qualified immunity for pre-2007 conduct. According to a dissent, the Sixth Circuit stands alone in its interpretation. The Supreme Court reversed in a unanimous, yet somewhat fragmented, decision, with Justice Alito writing the majority opinion. The majority held that the Sixth Circuit erred in concluding that officers were not entitled to qualified immunity, where: (1) the Sixth Circuit properly exercised jurisdiction under 28 U.S.C. 1291, which gives courts of appeals jurisdiction to hear appeals from final decisions of the district court, and the general rule that an order denying a summary judgment motion is not a final decision, and thus not immediately appealable, does not apply when it is based on a qualified immunity claim; (2) officers conduct did not violate the Fourth Amendment; and 3) even if officers conduct had violated the Fourth Amendment, defendants would still be entitled to summary judgment based on qualified immunity because plaintiff points to no cases that could be said to have clearly established the unconstitutionality of using lethal force to end a high-speed car chase. Justice Ginsburg and Breyer withheld support for the entire opinion, although they did not author dissents or concurrences. II. RIGHT TO COUNSEL A. Right to Counsel for Capital Habeas Proceedings. Redd v. Chappell, 135 S. Ct. 712 (cert. denied Dec. 1, 2014). The Court declined to review California s inordinate delay in appointing habeas counsel in a death penalty case, with two justices (Sotomayor and Breyer) concurring based on the following circumstances: Seventeen years after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings counsel to which he is entitled as a matter of state law. See Cal. Govt. Code Ann. 68662 (West 2009). He has suffered this delay notwithstanding the California Supreme Court s observation that [i]deally, the appointment of habeas corpus counsel should occur shortly after an indigent defendant s judgment of death,... and our own general exhortation that [f]inality is essential to both the retributive and the deterrent functions of criminal law, Calderon v. Thompson, 523 U.S. 538, 555 (1998). At the same time, the California Supreme Court refuses to consider capital inmates pro se submissions relating to matters for which they have a continuing right to representation. See In re Barnett, 31 Cal. 4th 466, 476-477, 73 P. 3d 1106, 1113 1114 (2003). Petitioner therefore remains in limbo: To raise any claims challenging his conviction and sentence in state habeas proceedings, he must either waive his right to counsel or continue to wait for counsel to be finally appointed. Despite this Catch-22, even these two justices did not vote to grant cert because it is not clear that petitioner has been denied all access to the courts. In fact, a number of alternative avenues may remain open to him. He may, for example, seek appointment of counsel for his federal habeas proceedings. See 18 U.S.C. 3599(a)(2). And he may argue that he should not be required to exhaust any claims Prepared by Paul M. Rashkind 8 FDFCDC 9
that he might otherwise bring in state habeas proceedings, as circumstances exist that render [the state corrective] process ineffective to protect his rights. 28 U.S.C. 2254(b)(1)(B)(ii). Moreover, petitioner might seek to bring a 42 U.S.C. 1983 suit contending that the State s failure to provide him with the counsel to which he is entitled violates the Due Process Clause. Our denial of certiorari reflects in no way on the merits of these possible arguments. Finally, I also note that the State represents that state habeas counsel will be appointed for petitioner [i]n due course by which I hope it means, soon. III. CRIMES A. Constitutional Limitations on Congressional Authority to Legislate. Bond v. United States, 134 S. Ct. 2077 (June 2, 2014). Carol Bond was a microbiologist who had access to rare and potentially fatal poison. Federal postal inspectors videotaped Bond stealing mail and putting poison in the muffler of the car of her husband s pregnant lover. She was convicted of stealing mail and violating a federal criminal law promulgated to implement an international treaty, the Chemical Weapons Convention, codified at 18 U.S.C. 229. She challenged the latter conviction as a violation of the Tenth Amendment. Three years ago, the Supreme Court held that Bond had standing to challenge her criminal conviction as a violation of the Constitution s structural limits on federal authority. See Bond v. United States, 131 S. Ct. 2355 (2011). The Court rejected the argument that Congress s reliance on the treaty power somehow defeated petitioner s standing. On remand, however, the court of appeals held that, while petitioner had standing, her constitutional challenge was a nonstarter because the basic limits on the federal government s power are not applicable to statutes purporting to implement a valid treaty. Although it had grave misgivings about its decision, the Third Circuit viewed this startling result as compelled by dictum in Missouri v. Holland, which states that if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. 252 U.S. 416, 432 (1920). The court thus broadly construed Holland as allowing the Senate and the President to expand the federal government s constitutional authority by negotiating a valid treaty requiring implementing legislation otherwise in excess of Congress s enumerated powers. The Supreme Court reversed (9-0), in a majority opinion written by Chief Justice Roberts. Sidestepping the Holland holding, the majority determined that the unique facts of this case do not permit federal prosecution since the treaty and statute have to be read consistent with principles of federalism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute s expansive language in a way that intrudes on the police power of the States. It is also clear that the laws of the Commonwealth of Pennsylvania (and every other State) are sufficient to prosecute Bond. Noting that [t]his case is unusual, and our analysis is appropriately limited, the majority nevertheless made clear that federalism drives its statutory interpretation: As James Madison explained, the constitutional process in our compound republic keeps Prepared by Paul M. Rashkind 9 FDFCDC 10
power divided between two distinct governments. The Federalist No. 51, p. 323 C. Rossiter ed. 1961). If section 229 reached Bond s conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority. Justices Scalia, Thomas and Alito concurred in the judgment but did not agree with the statutory construction approach they would have decided the challenge on constitutional grounds: So we are forced to decide there is no way around it whether the Act s application to what Bond did was constitutional. [We] would hold that it was not, and for that reason would reverse the judgment of the Court of Appeals for the Third Circuit. B. Fish as Tangible Objects Under Sarbanes-Oxley. Yates v. United States, 135 S. Ct. 1074 (Feb. 25, 2015); decision below at 733 F.3d 1059 (11th Cir. 2013). Yates was the captain of the Miss Katie, a commercial fish harvesting vessel operating in the Gulf of Mexico. A Florida Fish and Wildlife Conservation Commission officer (who had been was deputized by the federal Fisheries Service to enforce federal fisheries laws), encountered the Miss Katie offshore in federal waters. Noting that the boat s occupants were engaged in a commercial fish harvest, the officer boarded the vessel to inspect for gear, fishery, and boating-safety compliance. While on board, he noticed several red grouper that appeared to be less than 20 inches long, the minimum legal limit for harvesting red grouper. He measured the fish with their mouths closed and tails pinched, a protocol authorized by the governing federal regulation and which the officer determined was the most accurate way to measure red grouper. He gave Yates the benefit of the doubt on fish that measured close to 20 inches but separated the fish that clearly measured less than 20 inches. In all, he determined that 72 red grouper measured less than 20 inches; the officer placed them in wooden crates, instructed Yates not to disturb them, and informed him that the Fisheries Service would seize them upon the vessel s return to port. Yates did not comply. Instead, he directed crew members to throw the undersized fish overboard and fill the crate with other red grouper. Yates also told a crewman to tell authorities that the fish in the crates were the same fish that the officer had identified as undersized. Yates was convicted of disposing of undersized fish for the purpose of preventing the United States Coast Guard and the National Marine Fisheries Service (Fisheries Service) of the National Oceanic and Atmospheric Administration (NOAA) from exercising their lawful authority to take such property into their custody, in violation of 18 U.S.C. 2232(a); and of destroying, concealing and covering up an undersized fish with the intent to impede, obstruct, and influence the investigation and proper administration of the catching of red grouper under the legal minimum size limit, in violation of 18 U.S.C. 1519. He was sentenced to 30 days of imprisonment, followed by three years of supervised release, which was affirmed by the Eleventh Circuit. Question presented: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. 1519, which makes it a crime for anyone who knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or Prepared by Paul M. Rashkind 10 FDFCDC 11
tangible object with the intent to impede or obstruct an investigation, where the term tangible object is ambiguous and undefined in the statute, and unlike the nouns accompanying tangible object in section 1519, possesses no record-keeping, documentary, or informational content or purpose. The Eleventh Circuit had held that a fish qualified as a tangible object for purposes of 18 U.S.C. 1519, which makes it unlawful to tamper with any record, document or tangible object in an attempt to obstruct a federal investigation. The Supreme Court reversed (4-1-4), in a plurality opinion written by Justice Ginsburg (joined by Roberts, CJ, and Breyer and Sotomayor, JJ). The plurality noted that ordinarily a word s usage accords with its dictionary definition but also noted that the same words, placed in different contexts, sometimes mean different things. Here the heading of the statute, which was enacted as part of the Sarbanes-Oxley Act in response to Enron s document destruction, conveyed no suggestion that it addressed all physical evidence, however remote from records. The Court further noted 1519 s placement adjacent to specialized provisions and the section s overlap with 1512(c)(1), which would render the latter provision superfluous if 1519 were broadly interpreted. The Court cited the principle of noscitur a sociis a word is known by the company it keeps and here the company were the words record or document. The Court also invoked the rule of lenity, pointing out that a broad reading of the statute would expose individuals to a 20-year sentence for tampering with any object that might have evidentiary value in any federal investigation. Justice Alito concurred, on the narrow grounds of noscitur a sociis, pointing out that the other words in 1519 point toward filekeeping, not fish. Four justices dissented in an opinion written by Justice Kagan (joined by Scalia, Kennedy and Thomas), which begins with the proposition that [a] fish is, of course, a discrete thing, that possesses physical form, citing Dr. Seuess s One Fish Two Fish Red Fish Blue Fish. The dissent agrees that the underlying problem is an over-federalization of crime, but cannot find valid rules for statutory construction that yield the result obtained by the plurality and Justice Alito. C. Facebook Threats. Elonis v. United States, 134 S. Ct. 2819 (cert. granted June 16, 2014); decision below at 730 F.3d 321 (3d Cir. 2013). It is a federal crime to transmit[] in interstate or foreign commerce any communication containing... any threat to injure the person of another, 18 U.S.C. 875(c). Numerous states have adopted analogous crimes. Elonis was convicted and sentenced to 44 months imprisonment based on a series of Facebook posts he made about his estranged wife, which made her feel afraid, as though she was being stalked. The postings began after she and their children moved out of the marital home. Anthony Elonis began exhibiting troubling behavior at his workplace, the Dorney Park and Wildwater Kingdom Amusement Park. He was sent home several times after he was seen crying at work, and five sexual harassment complaints were filed against him by coworkers. He posted on his Facebook account a photograph taken for the Park s Halloween Haunt, showing him in costume with a knife to a woman s neck, including the caption I wish. He was fired the same day. Two days after he was fired, he posted additional violent statements on his Facebook page, concerning both Prepared by Paul M. Rashkind 11 FDFCDC 12
the amusement park and his estranged wife. When his wife secured a protectionfrom-abuse court order, he continued to make bizarre posts on Facebook, including: Did you know that it s illegal for me to say I want to kill my wife? It s illegal. It s indirect criminal contempt. It s one of the only sentences that I m not allowed to say. Now it was okay for me to say it right then because I was just telling you that it s illegal for me to say I want to kill my wife. I m not actually saying it.... Um, what s interesting is that it s very illegal to say I really, really think someone out there should kill my wife. That s illegal. Very, very illegal. But not illegal to say with a mortar launcher. Because that s its own sentence. It s an incomplete sentence but it may have nothing to do with the sentence before that. So that s perfectly Fine. Perfectly legal. I also found out that it s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you d have a clear line of sight through the sun room. Insanely illegal. Ridiculously, wrecklessly, insanely illegal. Yet even more illegal to show an illustrated diagram. He was eventually charged for those postings and others. He was convicted of those against his wife, but acquitted of those against the amusement park. The question presented by Elonis covers the intent required under the Constitution: Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a reasonable person would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort. In granting the petition for cert, the Court added a statutory construction question to the constitutional question presented in the petition: Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. 875(c) requires proof of the defendant s subjective intent to threaten. D. Requisite Proof of Controlled Substance Analogue. McFadden v. United States, 135 S. Ct. 1039 (cert. granted Jan 16, 2015); decision below at 753 F.3d 432 (4th Cir. 2014). Federal law criminalizes knowingly or intentionally manufacturing, distributing, or dispensing a controlled substance. 21 U.S.C. 841(a). Prohibited controlled substance[s] ordinarily are listed in schedules updated through notice-and-comment rulemaking. However, the Controlled Substance Analogue Enforcement Act of 1986 provides that a controlled substance analogue also shall be treated as a Schedule I controlled substance. 21 U.S.C. 813. A controlled substance analogue is defined as a substance with a chemical structure that is substantially similar to a schedule I or II drug and has a substantially similar effect on the user (or is believed or represented by the defendant to have such a Prepared by Paul M. Rashkind 12 FDFCDC 13
similar effect). Id. 802(32)(A). The government does not publish lists of controlled substance analogues; instead, it prosecutes individuals who sell what prosecutors believe to be substances meeting the statutory definition, leaving lay juries to decide whether any given alleged analogue is substantially similar in chemical structure and effect to a scheduled controlled substance, often on the basis of conflicting expert testimony. Here, McFadden, a construction worker, began operating a small business buying overstocked items and reselling them on the internet. In early 2011, he noticed that a variety of businesses in his Staten Island neighborhood were openly selling products referred to as bath salts that he believed to be aroma therapy products that, when burned, produced a stimulating vapor. Prior to selling bath salts himself, on the advice of his brother, a federal Immigration and Customs Enforcement officer, McFadden researched the legality of the substances by examining the online list of controlled substances on the DEA s website. Finding nothing to indicate that the substance he intended to sell were illegal, McFadden began selling bath salts containing various ingredients. When the government subsequently listed two of the compounds in some of his products on the controlled substances schedule, he flushed his supply of the affected products down the toilet. And when an undercover DEA agent subsequently attempted to purchase the illegal substance, he refused. Nevertheless, a grand jury indicted him for distributing, and conspiring to distribute, analogues of controlled substances. Although none of the substances sold were listed as a controlled substance, during the relevant time period, the government nonetheless insisted that these compounds were substantially similar to controlled substances, and therefore that McFadden had committed a criminal violation of the Analogue Act. A four-day jury trial focused primarily on the issue of whether the chemicals at issue constituted controlled substances analogues. The jury heard from competing expert witnesses, including a chemist, a drug science specialist, and a pharmacist. The experts based their conflicting conclusions in significant part on their review of the scientific literature, animal studies, and their own analyses of the chemical structure of the substances. The parties experts disagreed about how to compare chemicals for substantial similarity, whether the chemicals were in fact substantially similar, and even on whether scientists can offer an opinion on substantial similarity, when that phrase is not a scientific term. At the close of evidence, the district court rejected McFadden s request that the jury be instructed that the government was required to prove that he knew, had a strong suspicion, or deliberately avoided knowledge that the [substances at issue] possessed the characteristics of controlled substance analogues. Instead, over his objection, the court gave a jury instruction under which the only state of mind requirement relating to the nature of the substance was that he intended for the mixture or substance to be consumed by humans. He was found guilty. Question presented: Whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits. Prepared by Paul M. Rashkind 13 FDFCDC 14
E. Elements of Bank Fraud. Loughrin v. United States, 134 S. Ct. 2384 (June 23, 2014). Loughrin executed a scheme to convert altered or forged checks into cash. Pretending to be a Mormon missionary going door-to-door in a neighborhood in Salt Lake City, he rifled through residential mailboxes and stole any checks he found. Sometimes, he washed, bleached, ironed, and dried the checks to remove the existing writing, and then filled them out as he wanted; other times, he did nothing more than cross out the name of the original payee and add another. And when he was lucky enough to stumble upon a blank check, he completed it and forged the account holder s signature. Over several months, Loughrin made out six such checks to Target, for amounts of up to $250. He would go to a local Target store and, posing as the account holder, present an altered check to a cashier to purchase merchandise. After the cashier accepted the check (which happened time after time), Loughrin would leave the store, then turn around and walk back inside to return the goods for cash. Each of the six checks that Loughrin presented to Target was drawn on an account at a federally insured bank, including Bank of America and Wells Fargo. Employees in Target s back office identified three of the checks as fraudulent, and so declined to submit them for payment. Target deposited the other three checks. The bank refused payment on one, after the accountholder notified the bank that she had seen a man steal her mail. Target apparently received payment for the other two checks. The federal government eventually caught up with Loughrin and charged him with six counts of committing bank fraud one for each of the altered checks presented to Target, under 18 U.S.C. 1344(1) & (2). At trial, Loughrin moved for a Rule 29 judgment of acquittal based on insufficiency of the evidence, which the court granted in part. The district court explained that under Tenth Circuit precedent, the federal bank fraud provision creates two different crimes with different elements. The first subsection of 1344 which criminalizes attempts to defraud a financial institution requires proof of an intent to defraud the bank, and therefore, proof that the scheme put the bank at risk of loss (citing United States v. Sapp, 53 F.3d 1100 (10th Cir. 1995)). Finding that [t]here s simply nothing to show risk of loss or putting a bank, a financial institution, at risk in this case, the court held that there was insufficient evidence for conviction under Section 1344(1). However, the court permitted the government to proceed under subsection (2), which, it concluded, establishes a separate offense that dispenses with the risk of loss element. Section 1344(2), makes criminal a knowing scheme to obtain property owned by, or in the custody of, a bank by means of false or fraudulent pretenses, representations, or promises. The court instructed the jury that it could convict Loughrin under that clause if, in offering the fraudulent checks to Target, he had knowingly executed or attempted to execute a scheme or artifice to obtain money or property from the banks on which the checks were drawn by means of false or fraudulent pretenses, representations, or promises. Loughrin asked for another instruction: The jury must also find that he acted with intent to defraud a financial institution. The trial court declined to give that charge and the Tenth Circuit affirmed. The Supreme Court granted cert. In an opinion by Justice Kagan, the Court ruled that the government need not prove that a defendant charged with violating that provision intended to defraud a bank. In reaching this conclusion, the Court rejected the claim that its Prepared by Paul M. Rashkind 14 FDFCDC 15
decision in McNally v. United States, 483 U.S. 350 (1987), required courts to read 1344 the same as it reads the mail fraud law, as setting forth a single offense. The majority opinion also rejected a federalism argument made by Loughrin, that without the element of intent to defraud a bank, the statute will sweep in all frauds, even those traditionally reserved to state prosecution. In rejecting the federalism argument, the Court noted that the statute requires a misrepresentation. It read 1344 to have a textual limitation because it requires that in a federal bank fraud prosecution the defendant acquire (or attempt to acquire) the bank s property by means of a misrepresentation. The decision was unanimous, even though the Court s reasoning was not. Justice Scalia concurred in part and concurred in the judgment (Thomas joined), critical only of the by means of portion of the holding. Justice Alito also concurred and concurred in the judgment, taking issue with the majority s suggestion that 1344(2) requires a mens rea of purpose. F. Enhanced Penalty for Bank Robbery with Forced Accompaniment. Whitfield v. United States, 135 S. Ct. 785 (Jan. 13, 2015). A conviction under the federal bank robbery statute carries a maximum sentence of 20 years in prison, but no minimum sentence. 18 U.S.C. 2113(a). If the bank robber forces another person to accompany him during the robbery or while in flight, however, that additional offense carries a minimum sentence of 10 years in prison and a maximum sentence of life imprisonment. 18 U.S.C. 2113(e). Here, while Whitfield was in flight, he entered the home of Parnell and had her move from the hallway into a room, so she could be seated and they would remain out of sight. Whitfield argued that 2113(e) s forced-accompaniment offense requires proof of more than a de minimis movement of the victim. The Supreme Court rejected this position (9-0) in an opinion written by Justice Scalia. Relying on the dictionary definition of accompany, the Court held that this word does not connote movement over a substantial distance, but over a relatively short distance. A bank robber forces [a] person to accompany him, for purposes of 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance, as was the case here. At the time the forced accompaniment provision was enacted, just as today, to accompany someone meant to go with him. The word does not, as Whitfield contends, connote movement over a substantial distance. Accompaniment requires movement that would normally be described as from one place to another. Here, Whitfield forced Parnell to accompany him for at least several feet, from one room to another, and that surely sufficed. The Court rejected Whitfield s argument that the severity of the punishment for the accompaniment offense militated against accompaniments involving short distances, pointing out that the danger of a forced accompaniment can involve short distances, as when a victim is used as a human shield. The Court also rejected the argument that its interpretation of the statute would render the other subsections of 2113 superfluous. The Court found that forcing others to accompany is distinct from the other conduct covered by the other subsections of 2113. The severity of the penalties for a forced-accompaniment conviction a mandatory minimum of 10 years, and a maximum of life Prepared by Paul M. Rashkind 15 FDFCDC 16
imprisonment does not militate against this interpretation, for the danger of a forced accompaniment does not vary depending on the distance traversed. G. Materiality of Statements Made in Straw Firearms Purchases. Abramski v. United States, 134 S. Ct. 2259 (June 16, 2014). When a person buys a gun intending to later sell it to someone else, the government often prosecutes the initial buyer under 18 U.S.C. 922(a)(6) for making a false statement about the identity of the buyer that is material to the lawfulness of the sale. These prosecutions rely on the court-created straw purchaser doctrine, a legal fiction that treats the ultimate recipient of a firearm as the actual buyer, and the immediate purchaser as a mere straw man. Lower courts uniformly agreed that a buyer s intent to resell a gun to someone who cannot lawfully buy it is a fact material to the lawfulness of the sale. But the Fourth, Sixth, and Eleventh Circuits have split with the Fifth and Ninth Circuits about whether the same is true when the ultimate recipient can lawfully buy a gun. Here, Bruce Abramski, a former police officer, bought a gun for his uncle. Abramski s uncle is a law abiding citizen legally entitled to buy a gun himself. But because Abramski worked in law enforcement, he receives a discount at many gun stores. So Abramski bought the gun to save his uncle some money, then drove to his uncle s hometown, met his uncle at a nearby gun store, and signed the necessary ATF paperwork to transfer ownership. When Abramski bought the gun initially, he checked a box on an ATF form indicating that he was the actual buyer. However, the instructions on the form indicate that a person who buys a gun intending to later transfer it to someone else is not an actual buyer. After discovering that Abramski bought the gun for his uncle but had checked the actual buyer box on the ATF form, the government indicted him for making a false statement that is intended or likely to deceive a licensed gun dealer with respect to any fact material to the lawfulness of the sale. 18 U.S.C. 922(a)(6). The government relied on the courtcreated straw purchaser doctrine, a legal fiction which treated the ultimate recipient of a firearm the uncle as the true purchaser. Abramski moved to dismiss the indictment, asserting that the straw purchaser doctrine only applies when the ultimate recipient of the firearm is not eligible to buy or possess a gun. Thus, because Abramski s uncle was legally entitled to buy and own a gun himself, federal law did not prohibit a gun dealer from selling the gun to Abramski even if the dealer knew Abramski later planned to resell it to his uncle. As a result, Abramski s answer to the actual buyer question was not material to the lawfulness of the sale. His motion was denied, an order that was affirmed by the Fourth Circuit. The Supreme Court affirmed (5-4) in an opinion authored by Justice Kagan, holding that the federal ban on straw purchases of guns can be enforced even if the ultimate buyer is legally allowed to own a gun. In a statutory interpretation duel, the majority concluded that Mr. Abramski s indication on the form he completed when purchasing the gun, representing that he was the actual transferee/buyer, was a misrepresentation punishable under 922(a)(6) whether or not the true buyer could have purchased the gun without the straw. The majority opinion found that the federal government s elaborate system of background checks and record-keeping requirements help law enforcement investigate crimes by tracing guns to their buyers. Those provisions Prepared by Paul M. Rashkind 16 FDFCDC 17
would mean little if a would-be gun buyer could evade them by simply getting another person to buy the gun and fill out the form. Justice Scalia dissented (joined by the Chief Justice, and Justices Alito and Thomas), contending that the language of the law does not support making it a crime for one lawful gun owner to buy a gun for another lawful gun owner. The dissent argues the plain language of the statute compels a different conclusion: the false statement was not material to the lawfulness of the sale since the truth that Abramski was buying the gun for his uncle with his uncle s money would not have made the sale unlawful. The dissent also questions the continuing vitality of the rule of lenity in light of its avoidance in so many cases If lenity has no role to play in a clear case such as this one, we ought to stop pretending it is a genuine part of our jurisprudence. H. ACCA Possession of Short-Barreled Shotgun as Predicate Offense. Johnson v. United States, 134 S. Ct. 1871(cert. granted Apr. 21, 2014); decision below at 526 F. App x 708 ( 8th Cir. 2013). Johnson pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). His plea agreement conceded that the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e), might apply, raising the available penalties from no more than 10 years in prison to a term of 15 years to life imprisonment. However, Mr. Johnson reserved the right to challenge the application of the ACCA. His PSI concluded that his criminal history contained three prior convictions which qualified as violent felonies under 18 U.S.C. 924(e)(2)(B): two convictions for simple robbery (which are not at issue) and a 2007 conviction for possession of a short-barreled shotgun in violation of Minnesota Statute 609.67, sub. 2. Mr. Johnson objected to his treatment as an armed career criminal in his sentencing filings to the district court, including an argument that mere possession of a short-barreled shotgun should not count as a violent felony. Absent that conviction, Mr. Johnson was not subject to an ACCA enhanced sentence. The district court overruled his objections and sentenced him to 180 months imprisonment, which the Eighth Circuit affirmed under its existing precedent. The Supreme Court granted cert. Question presented: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act? Following full briefing and oral argument, the Court set the case for reargument on April 20, 2015, with supplemental briefing in the interim on a second issue: Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(2)(B)(ii), is unconstitutionally vague. I. Hobbs Act: Conspiracy to Commit Extortion. Ocasio v. United States, 135 S. Ct. (cert. granted Mar. 2, 2015); decision below at 750 F.3d 399 (4th Cir. 2014). The Hobbs Act defines extortion, in relevant part, as the obtaining of property from another, with his consent,... under color of official right. 18 U.S.C. 1951(b)(2). The Supreme Court has held that a public official violates that statute when he obtain[s] a payment to which he was not entitled, knowing that the payment was made in return for official acts. Evans v. United States, 504 U.S. 255, 268 (1992). A jury found Ocasio, a former Baltimore Police officer, guilty of four offenses relating to his involvement in a kickback scheme to funnel wrecked automobiles to Prepared by Paul M. Rashkind 17 FDFCDC 18
a Baltimore auto repair shop in exchange for cash kickbacks. The trial evidence established a wide-ranging kickback scheme involving the Majestic Repair Shop and Baltimore Police officers, who referred accident victims to Majestic for body work, in exchange for kickbacks of $150 $300 per vehicle. Ocasio was convicted on three Hobbs Act extortion counts plus a charge of conspiracy to commit such extortion. On appeal, he maintained that his conspiracy conviction is fatally flawed because the kickbacks were from one co-conspirator to another. The Fourth Circuit affirmed. The Supreme Court granted cert to consider a question on which the Fourth and Sixth Circuits explicitly disagree: Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy? IV. TRIAL AND PLEA A. Confrontation Clause: Student s Statements to Teacher About Child Abuse. Ohio v. Clark, 135 S. Ct. 43 (cert. granted Oct. 2, 2014); decision below at 137 Ohio St. 3d 346, 999 N.E. 2d 592 (Ohio 2013). In all fifty states, certain individuals most often, teachers, social workers, and medical professionals have a mandatory duty to report suspected child abuse that they notice in the course of their work. In this case, the Ohio Supreme Court held both that this mandatory-reporting duty turned daycare teachers into agents of the state for law enforcement purposes and that a child s out-of-court statements to the teachers qualified as testimonial under the Confrontation Clause. It did so even though there was no police involvement in the encounter between the teachers and child. Several other state supreme courts, by contrast, have rejected arguments that these mandatory-reporting statutes turn an individual subject to them into law enforcement, and have held instead that a child s statements to the individual were non-testimonial and thus not subject to the Confrontation Clause. The two questions presented are: (1) Does an individual s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause? (2) Do a child s out-of-court statements to a teacher in response to the teacher s concerns about potential child abuse qualify as testimonial statements subject to the Confrontation Clause? B. Rule 606(b) Prohibits New Trial Relief Based on Lying Juror. Warger v. Shauers, 135 S. Ct. 521 (Dec. 9, 2014). Gregory Warger, a computer systems engineer and former Navy officer, filed a civil suit after Shauer s truck collided with his motorcycle, resulting in amputation of his leg. During voir dire, the woman who later became jury foreperson stated that she could remain impartial and that she could award damages to Warger if the evidence supported it. During deliberations, however, the foreperson told the other jurors that her own daughter had been at fault in a fatal automobile accident and that, if her daughter had been sued, it would have ruined her life. The jury returned a verdict in favor of the civil defendant. After obtaining an affidavit from another juror in which the juror reported the foreperson s statements during deliberations, Warger moved for a new trial based on the foreperson s dishonesty during voir dire. The district court denied his motion and the Eighth Circuit affirmed, although it recognized that (t)here is a split among the Prepared by Paul M. Rashkind 18 FDFCDC 19
circuits as to whether (juror) testimony may be used to seek a new trial based on juror dishonesty during voir dire. The lower court rulings relied on Fed. R. Evid. 606(b), which seemingly prohibits the use of juror testimony in this manner. The Supreme Court affirmed, unanimously, in a decision written by Justice Sotomayor, holding that Rule 606(b) precludes a party seeking a new trial from using one juror s affidavit of what another juror said in deliberations to demonstrate the other juror s dishonesty during voir dire. Its ruling simply accord[s] Rule 606(b) s terms their plain meaning. The Rule, after all, applies [d]uring an inquiry into the validity of a verdict. Rule 606(b)(1). A postverdict motion for a new trial on the ground of voir dire dishonesty plainly entails an inquiry into the validity of [the] verdict : If a juror was dishonest during voir dire and an honest response would have provided a valid basis to challenge that juror for cause, the verdict must be invalidated. See McDonough, 464 U.S. [548,] 556 [(1984)]. This understanding of the text of Rule 606(b) is consistent with the underlying common-law rule on which it was based. Although some common-law courts would have permitted evidence of jury deliberations to be introduced to demonstrate juror dishonesty during voir dire, the majority would not, and the language of Rule 606(b) reflects Congress enactment of the more restrictive version of the common-law rule. C. Double Jeopardy. Martinez v. Illinois, 134 S. Ct. 2070 (May 27, 2014) (per curiam). Martinez was charged in state court with aggravated battery and mob action. On the day his trial was set to begin, he was ready for trial but the state was not. The jury had already been selected when the state realized its two witnesses had not appeared for trial. The state sought a continuance, which the trial court denied, and the judge proceeded to swear in the jury. He then invited the state to present its first witness. The state declined to present any evidence: Respectfully, your Honor, the State is not participating in this matter. The defendant moved for a directed not-guilty verdict, based on the absence of evidence. When asked if there was any response, the prosecutor said: No, your Honor. Respectfully, the State is not participating. The trial judge directed a verdict of not-guilty. The state attempted to appeal the notguilty verdict, hoping to retry the defendant, arguing that the trial court should have granted a continuance. Martinez responded that the State s appeal was improper because he had been acquitted. The Illinois Appellate Court sided with the State, holding that jeopardy had never attached and that the trial court had erred in failing to grant a continuance. It held that Martinez was never at risk of conviction and jeopardy therefore did not attach because [t]he State indicated it would not participate prior to the jury being sworn. And because Martinez was not placed in jeopardy, the court held, the trial court s entry of directed verdicts of not guilty did not constitute true acquittals. Indeed, the court remarked, the trial court repeatedly referred to its action as a dismissal rather than an acquittal. The U.S. Supreme Court reversed, unanimously in a per curiam decision, that the Double Jeopardy Clause bars the state s attempt to appeal in the hope of subjecting defendant to a new trial because (1) Martinez was subjected to jeopardy when the jury was impaneled and sworn; and (2) the trial court found the state s evidence insufficient to sustain a conviction. Following its own bright-line rule and precedent on the issue, Crist v. Prepared by Paul M. Rashkind 19 FDFCDC 20
V. SENTENCING Bretz, 437 U.S. 28, 35 (1978) ( jeopardy attaches when the jury is empaneled and sworn), the Supreme Court held that there is no doubt that defendant may not be retried. A. Acquitted Conduct and Substantive Reasonableness. Jones, Thurston, Ball v. United States, 135 S. Ct. 8 (cert. denied Oct. 14, 2014). Although the court voted to deny certiorari, Justice Scalia (joined by Thomas and Ginsburg) dissented and filed an opinion about the use of acquitted conduct in federal sentencing. The three petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that they had engaged in the conspiracy of which the jury acquitted them. The Guidelines recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months imprisonment. The justices dissented from the refusal to grant review, taking two alternative tacks: (1) the use of acquitted conduct makes a sentence substantively unreasonable because it violates the Sixth Amendment, citing Rita, Alleyne, and Apprendi; Cunningham and Gall; or (2) the Court should grant cert to eliminate the Sixth Amendment concern by ruling that all sentences below the mandatory minimum are substantively unreasonable. B. Restitution 1. Restitution to Victims in Child Pornography Prosecutions. Paroline v. United States, 134 S. Ct. 1710 (Apr. 23, 2014). In a 5-4 decision authored by Justice Kennedy, the Court established apportionment guidelines for restitution in child pornography cases, rejecting arguments of both parties and the formulas used by the courts below. This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed. The relevant statutory provisions are set forth at 18 U.S.C. 2259. Enacted as a component of the Violence Against Women Act of 1994, 2259 requires district courts to award restitution for certain federal criminal offenses, including child pornography possession. Paroline pleaded guilty to such an offense. He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym Amy for this litigation. The question is what causal relationship must be established between the defendant s conduct and a victim s losses for purposes of determining the right to, and the amount of, restitution under 2259. The Court rejected application of an aggregate causation theory making the defendant jointly liable for all of the victim s losses. Even if the victim s losses are fully indivisible in this sense, treating [the defendant] as a proximate cause of all the victim s losses especially in the absence of a Prepared by Paul M. Rashkind 20 FDFCDC 21
workable system of contribution stretches the fiction of aggregate causation to its breaking point. Treating him as a cause of a smaller amount of the victim s general losses, taking account of his role in the overall process behind those losses, effects the statute s purposes; avoids the nonsensical result of turning away victims empty-handed; and does so without sacrificing the need for proportionality in sentencing. In the end, the majority opinion provides no hard rules, but rather guideposts for the district court to apply. In this special context, where it can be shown both that a defendant possessed a victim s images and that a victim has outstanding losses caused by the continuing traffic in those images (but where it is impossible to trace a particular amount of losses to the individual defendant by recourse to a more traditional causal inquiry), a court applying 2259 should order restitution in an amount that comports with the defendant s relative role in the causal process that underlies the victim s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims. There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant s conduct in light of the broader causal process that produced the victim s losses. Chief Justice Roberts dissented (joined by Scalia and Thomas), contending that the statute, as worded, authorizes no restitution for Amy. Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government s ability to prove, by the preponderance of the evidence, the amount of the loss sustained by a victim as a result of the defendant s crime. 18 U.S.C. 3664(e). When it comes to Paroline s crime possession of two of Amy s images it is not possible to do anything more than pick an arbitrary number for that amount. And arbitrary is not good enough for the criminal law. Justice Sotomayor dissented because she would have affirmed the decision of the Fifth Circuit and objected to the majority s apportionment approach. 2. Mortgage Fraud: Offset Value. Robers v. United States, 134 S. Ct. 1854 (May 5, 2014). Robers pleaded guilty in a mortgage fraud case. Restitution was to include the loss attributable to his crime. He had returned the collateral Prepared by Paul M. Rashkind 21 FDFCDC 22
for the mortgage, which the lender did not immediately sell. The value of the collateral may diminish due to market forces, between the time of foreclosure and the time the lender sells the collateral. A question arose as to how to calculate offset value under the Mandatory Victims Restitution Act when, as here, some of the loss is returned to the lenders by returning the collateral. In a unanimous opinion written by Justice Breyer, the Court held that the Mandatory Victims Restitution Act requires a sentencing court [to] reduce the restitution amount by the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it. In other words, the property returned is the money lent by the victim, not the collateral. When the collateral has not yet been sold by the time of sentencing, or will not be sold, the Act permits sentencing court to adjust the restitution order as appropriate. Justice Sotomayor (joined by Justice Ginsburg) wrote separately to recognize that there may be situations (not present here) where the victim holds the collateral for so long that the defendant should not be held responsible for any decline in value. VI. CAPITAL PUNISHMENT A. Cruel and Unusual Punishment: Lethal Injection. Glossip v. Gross, 135 S. Ct. 1173 (cert. granted Jan. 23, 2015); decision below at 776 F.3d 721 (10th Cir. 2015). This is a joint petition filed by a number of Oklahoma inmates scheduled for execution, challenging the use of midazolam as the first drug in the three-drug protocol used for execution. In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky s three-drug execution protocol was constitutional based on the uncontested fact that proper administration of the first drug which was a fast-acting barbiturate that created a deep, comalike unconsciousness will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. The Baze plurality established a stay standard to prevent unwarranted last-minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a demonstrated risk of severe pain that was substantial when compared to the known and available alternatives. In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze. However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness. For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures. Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution. Oklahoma s intention to use midazolam to execute the Petitioners raises the following questions, left Prepared by Paul M. Rashkind 22 FDFCDC 23
unanswered by this Court in Baze: Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious. Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze? Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state s lethal-injection protocol, as properly administered, will violate the Eighth Amendment? NOTE: Although the Court granted certiorari on Jan. 23, it denied a stay of execution (5-4) for the first petitioner earlier, on Jan. 15; as a result, Charles Warner was executed before the Court agreed to hear the petition. Justice Sotomayor dissented from the denial of a stay (joined by Ginsburg, Breyer and Kagan). A stay of execution requires five votes, but a grant of certiorari requires only four. After cert was granted, the state agreed to stay the remaining executions using midazolam, and on Jan. 28 the Court granted that stay. The wording of the state s agreement and the Court s order leaves open the possibility of execution using a different first drug, one that is a fast-acting barbiturate. B. Florida Capital Scheme in Light of Sixth and Eighth Amendments, and Apprendi and Ring. Hurst v. Florida, 135 S. Ct. (cert. granted Mar. 9, 2015); decision below at 147 So. 3d 435 (Fla. 2015). The Supreme Court granted cert on a question it reworded and seemingly generalized in place of the original petition: Whether Florida s death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court s decision in Ring v. Arizona, 536 U.S. 584 (2002). The original petition set forth two question as follows: (1) Whether the Florida Supreme Court correctly held that the jury in a death penalty case does not have a constitutional obligation to render a verdict in the penalty phase of whether the defendant is mentally retarded or not when evidence has been presented to support such a conclusion; (2) Whether the Supreme Court of Florida has correctly concluded that this Court s decision in Ring v. Arizona, 536 U.S. 584 (2002) (a) has no applicability to Florida s death sentencing scheme generally, (b) that specifically it does not require the jury s recommendation of death be unanimous, (c) that the jury s findings of aggravating factors need not be unanimous, (d) that the jury has no role in determining the factual issue of the defendant s mental retardation, and (e) that the lack of unanimity does not offend our evolving standards of decency as required by the eighth amendment? The question presented by the Court certainly covers Apprendi and Ring (the Sixth Amendment constraint on judge-determined findings to support capital punishment). It is unclear, however, if it addresses only the kind of concerns raised in Justice Sotomayor s dissent from denial of cert in Woodward v. Alabama, 134 S. Ct. 405 (2013) (Breyer joining), or if it also addresses the unanimity concerns set forth in Hurst s petition the jury ruled 7-5 in favor of the death penalty. It is equally unclear if the reworded question, which specifically Prepared by Paul M. Rashkind 23 FDFCDC 24
includes the Eighth Amendment, will implicate Hurst s intellectual disability, or tie it to the other issues. C. Kansas Challenges Burden of Proof on Mitigators and Right to Sever Defendants at Sentencing. Kansas v. Carr and Kansas v. Gleason, 135 S. Ct. (cert, granted Mar. 30, 2015); decisions below at 329 P.3d 1102 and1195 (Kan. 2014) and 331 P.3d 544 (Kan. 2014). The Court granted consolidated review on two of three questions presented by two brothers sentenced to death for murder: (1) Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances need not be proven beyond a reasonable doubt, as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? (3) Whether the trial court s decision not to sever the sentencing phase of the co-defendant brothers trial here a decision that comports with the traditional approach preferring joinder in circumstances like this violated an Eighth Amendment right to an individualized sentencing determination and was not harmless in any event? The first question, alone, was also granted review in Kansas v. Gleason. which involved another defendant in the same murder case. VII. APPEALS A. Unreasonable Rules re. Filing Substitute Briefs. Joseph v. United States, 135 S. Ct. 705 (cert. denied Dec. 1, 2014). Although the Court denied certiorari review, five justices questioned the Eleventh Circuit s ad hoc first-brief rule, which prohibits litigants from filing substitute or corrected briefs raising new issues, even if done promptly before opposing counsel has filed a responsive brief, and even where the opposing counsel has no objection to the filing of a substitute or corrected brief. Joseph asked the Court to review the Eleventh Circuit s application of a rule providing that issues not raised in an opening appellate brief are forfeited, and so may not be raised in subsequent filings. See Order in No. 12 16167 (July 8, 2013), App. 6 to Pet. for Cert. (citing United States v. Hembree, 381 F.3d 1109 (CA11 2004)). In the usual case, that rule (which all the federal courts of appeals employ) makes excellent sense: It ensures that opposing parties will have notice of every issue in an appeal, and that neither they nor reviewing courts will incur needless costs from eleventh-hour changes of course. But this is not the usual case. Joseph took an appeal to the Eleventh Circuit after he was convicted of several drug offenses and sentenced as a career offender under the Sentencing Guidelines. At the time Joseph filed his opening brief, Eleventh Circuit precedent precluded the argument that he did not properly qualify as a career offender. See United States v. Rainer, 616 F.3d 1212, 1215 1216 (2010). Soon after his filing, however, this Court decided Descamps v. United States, 570 U.S. (2013), which made clear that the relevant Circuit precedent was no longer good law, United States v. Howard, 742 F. 3d 1334, 1345 (2014). Five days later (which was still nine days before the Government s brief came due), Joseph moved to file a replacement brief relying on Descamps to challenge his classification as a career offender. (He acknowledged that because he Prepared by Paul M. Rashkind 24 FDFCDC 25
had failed to raise the Descamps claim at trial, it would be reviewable for plain error.) The Government did not oppose the motion, asking only for additional time to file its own brief. The Eleventh Circuit nonetheless refused to accept Joseph s filing. Not a single other court of appeals would have done that. See United States v. Vanorden, 414 F. 3d 1321, 1324 (CA11 2005) (Tjoflat, J., specially concurring) (noting that the Eleventh Circuit s rule is inconsistent with... the law of every other circuit ). Every circuit, save the Eleventh, accepts supplemental or substitute briefs as a matter of course when this Court issues a decision that upsets precedent relevant to a pending case and thereby provides an appellant with a new theory or claim. Justices Kennedy and Sotomayor would have granted cert to review the reasonableness of the Eleventh Circuit s rule. Justice Kagan (joined by Ginsburg and Breyer) concurred with the denial of cert, but agreed that the rule is problematic. Rather than rule directly, the three concurring justices favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a reasoned exercise[ ] of its authority. Ortega-Rodriguez [v. United States], 507 U.S. 234, [] 244 [(1993)]. VIII. IMMIGRATION CONSEQUENCES A. Removal Based on State Drug Conviction. Mellouli v. Holder, 134 S. Ct. 2873 (cert. granted June 30, 2014); decision below at 719 F.3d 995 (8th Cir. 2013). Mellouli was detained for driving under the influence of alcohol. Jail personnel discovered four tablets hidden in his sock, which he admitted were Adderall, a controlled substance under both federal and Kansas state law. He was initially charged with trafficking contraband in a jail under Kansas law, but he eventually pleaded guilty to a lesser state charge of possession of drug paraphernalia specifically, a sock used to store a controlled substance. Under 8 U.S.C. 1227(a)(2)(B)(i), a noncitizen may be removed if he has been convicted of violating any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21). Regarding removal based on a state conviction for possessing drug paraphernalia, the circuits are split on whether the paraphernalia must be related to a substance listed in Section 802 of Title 21, the Controlled Substances Act. Question presented: To trigger deportability under 8 U.S.C. 1227(a)(2)(B)(i), must the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act? IX. OTHER COLLATERAL CONSEQUENCES OF CONVICTION A. Return of Firearms. Henderson v. United States, 135 S. Ct. 402 (cert. granted Oct. 20, 2014); decision below at 555 F. App x 851 (11th Cir. 2014). Question presented: The general rule is that seized property, other than contraband, should be returned to its rightful owner once... criminal proceedings have terminated. Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir. 1977)). 18 U.S.C. 922(g) makes it unlawful for any person... Prepared by Paul M. Rashkind 25 FDFCDC 26
who has been convicted in any court of [] a crime punishable by imprisonment for a term exceeding one year... to... possess... any firearm. The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them. B. Prisoner s Right to Beard. Holt v. Hobbs, 135 S. Ct. 853 (Jan. 20, 2015). Holt, aka Muhammad, is an Arkansas inmate and devout Muslim who wishes to grow a 1/2-inch beard in accordance with his religious beliefs. The Arkansas Department of Correction prohibits its prisoners from growing beards, with the single exception that inmates with diagnosed skin conditions may grow 1/4-inch beards. He sought an exemption on religious grounds and, although he believes that his faith requires him not to trim his beard at all, he proposed a compromise under which he would be allowed to maintain a 1/2-inch beard. Prison officials denied his request, and he sued unsuccessfully in federal district court, affirmed in the court of appeals. The Supreme Court reversed in a unanimous decision authored by Justice Alito, based on the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). That Act provides that [n]o government shall impose a substantial burden on the religious exercise of an institutionalized person unless the government demonstrates that the burden is the least restrictive means of furthering [a] compelling governmental interest. 42 U.S.C. 2000cc 1(a). The Court held: We conclude in this case that the Department s policy substantially burdens petitioner s religious exercise. Although we do not question the importance of the Department s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner s [1/2-inch] beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. Justice Ginsburg concurred (joined by Sotomayor) with a brief opinion that this case differs from the Hobby Lobby Obamacare case because Holt s exercise of his religion does not detrimentally affect others who do not share his belief. Justice Sotomayor also concurred separately with a detailed explanation of her view of the applicable legal standard under RLUIPA. X. COLLATERAL RELIEF: HABEAS CORPUS, 2241, 2254 AND 2255 A. Right to Counsel for Capital Habeas. 1. Substitution for Conflict-Free Counsel. Christeson v. Roper, 135 S. Ct. 891 (Jan. 20, 2015) (per curiam). Christeson s first federal habeas petition was dismissed as untimely. Because his appointed attorneys who had missed the filing deadline could not be expected to argue that Christeson was entitled to the equitable tolling of the statute of limitations, Christeson requested Prepared by Paul M. Rashkind 26 FDFCDC 27
substitute counsel who would not be laboring under a conflict of interest. The district court denied the motion, and the court of appeals for the Eighth Circuit summarily affirmed. The Supreme Court reversed in a per curiam decision, relying on its decision in Martel v. Clair, 565 U.S., 132 S. Ct. 1276 (2012). Clair explains the factors and limitations in applying the right established by 18 U.S.C. 3599, which entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings. One factor is interests of justice, which the Supreme Court held here was insufficiently considered in Christeson s case. The district court s principal error was its failure to acknowledge the lawyers conflict of interest. Tolling based on counsel s failure to satisfy AEDPA s statute of limitations is available only for serious instances of attorney misconduct. Holland v. Florida, 560 U.S. 631, 651-652 (2010). Advancing such a claim would have required the lawyers to denigrate their own performance. Counsel cannot reasonably be expected to make such an argument, which threatens their professional reputation and livelihood. See Restatement (Third) of Law Governing Lawyers 125 (1998). Thus, as the Supreme Court observed in a similar context in Maples v. Thomas, 565 U.S., n.8, 132 S. Ct. 912, 925 n.8 (2012), a significant conflict of interest arises when an attorney s interest in avoiding damage to [his] own reputation is at odds with his client s strongest argument i.e., that his attorneys had abandoned him. 2. Inordinate Delay in Appointing Counsel. Redd v. Chappell, 135 S. Ct. 712 (cert. denied Dec. 1, 2014). The Court declined to review California s inordinate delay in appointing habeas counsel in a death penalty case, with two justices (Sotomayor and Breyer) concurring based on the following circumstances: Seventeen years after petitioner was first sentenced to death, and more than four years after his conviction and sentence were affirmed on direct appeal, petitioner has not received counsel to represent him in his state habeas corpus proceedings counsel to which he is entitled as a matter of state law. See Cal. Govt. Code Ann. 68662 (West 2009). He has suffered this delay notwithstanding the California Supreme Court s observation that [i]deally, the appointment of habeas corpus counsel should occur shortly after an indigent defendant s judgment of death,... and our own general exhortation that [f]inality is essential to both the retributive and the deterrent functions of criminal law, Calderon v. Thompson, 523 U.S. 538, 555 (1998). At the same time, the California Supreme Court refuses to consider capital inmates pro se submissions relating to matters for which they have a continuing right to representation. See In re Barnett, 31 Cal. 4th 466, 476-477, 73 P. 3d 1106, 1113-1114 (2003). Petitioner therefore remains in limbo: To raise any claims challenging his conviction and sentence in state habeas proceedings, he must either waive his right to counsel or continue to wait for counsel to be finally appointed. Despite this Catch-22, even these two justices did not vote to grant cert because it is not clear that petitioner has been denied all access to the courts. In fact, a number of alternative avenues may remain open to him. He may, for example, seek appointment of counsel Prepared by Paul M. Rashkind 27 FDFCDC 28
for his federal habeas proceedings. See 18 U.S.C. 3599(a)(2). And he may argue that he should not be required to exhaust any claims that he might otherwise bring in state habeas proceedings, as circumstances exist that render [the state corrective] process ineffective to protect his rights. 28 U.S.C. 2254(b)(1)(B)(ii). Moreover, petitioner might seek to bring a 42 U.S.C. 1983 suit contending that the State s failure to provide him with the counsel to which he is entitled violates the Due Process Clause. Our denial of certiorari reflects in no way on the merits of these possible arguments. Finally, I also note that the State represents that state habeas counsel will be appointed for petitioner [i]n due course by which I hope it means, soon. B. Prohibition on Executing Intellectually Disabled Individuals and Juveniles. 1. Standard for Establishing Mental Retardation. Hall v. Florida, 134 S. Ct. 1986 (May 27, 2014). Florida courts have established a bright-line rule for determining mental retardation in the context of the Supreme Court s decision in Atkins v. Virginia (prohibiting execution of mentally retarded persons). The bright line is an IQ of 70. If a person s IQ is not below 70, they are not retarded under this test. Hall s IQ is 71. Hall contends that this standard is an unreasonable interpretation of Florida law and the mandates of Atkins. The Supreme Court reversed (5-4) in an opinion authored by Justice Kennedy. Florida s rule requiring a threshold showing that a defendant have an IQ score of 70 or below before being permitted to present any additional intellectual disability evidence so as to be deemed ineligible for the death penalty, is unconstitutional. Florida s rigid rule creates an unacceptable risk that persons with intellectual disability will be executed. Justice Alito filed a dissent joined by Chief Justice Roberts and Justices Scalia and Thomas. 2. Habeas Review of Adequacy of Opportunity to Establish Mental Retardation. Brumfield v. Cain, 135 S. Ct. 752 (cert. granted Dec. 5, 2014); decision below at 744 F.3d 918 (5th Cir. 2014). This case presents the extraordinary circumstance in which petitioner faces imminent execution, despite the fact that the sole court to conduct a hearing on his Atkins claim concluded that he was in fact mentally retarded. Brumfield was sentenced to death before the Supreme Court s decision in Atkins v. Virginia, 536 U.S. 304 (2002). Promptly after Atkins was decided, he presented his mental retardation claim to the state courts. His request was denied without a hearing, however, on the ground that his mental retardation was not apparent from his pre-atkins trial transcripts at which he did not even attempt to, and had no reason to, establish that he was mentally retarded. Brumfield then sought habeas relief. The federal district court recognized the grave error in denying a hearing on his Atkins claim, holding that the state court s conclusion was an unreasonable determination of the facts under 28 U.S.C. 2254(d)(2), because the state court mistakenly and unreasonably considered the record from petitioner s pre-atkins penalty phase as determinative of his mental retardation claim under Atkins. The court Prepared by Paul M. Rashkind 28 FDFCDC 29
conducted a seven-day trial, at which several experts testified regarding Brumfield s severe mental deficiencies. Based on the evidence presented, the court concluded that he was mentally retarded. In a decision that seemingly contravenes the Supreme Court s jurisprudence and creates a split with both the Seventh and Eleventh Circuits, the Fifth Circuit reversed. Without engaging with the district court s reasoning or acknowledging any of the relevant case law, the Fifth Circuit concluded that the state court acted reasonably in denying a hearing. As a result of this decision, the compelling evidence presented to the district court will be ignored, and a person who was found to be mentally retarded will be executed. The Supreme Court granted cert. Questions presented: (1) Whether a state court that considers the evidence presented at a petitioner s penalty phase proceeding as determinative of the petitioner s claim of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002), has based its decision on an unreasonable determination of facts under 28 U.S.C. 2254(d)(2); (2) Whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his opportunity to be heard, contrary to Atkins and Ford v. Wainwright, 477 U.S. 399 (1986), and his constitutional right to be provided with the basic tools for an adequate defense, contrary to Ake v. Oklahoma, 470 U.S. 68 (1985). 3. Juveniles: Retroactivity of Miller. Toca v. Louisiana 135 S. Ct. 781 (cert. granted Dec. 12, 2014); decision below at 141 So. 3d 265 (La. 2014). George Toca was barely 17 years old when he was arrested in 1984 for the accidental shooting of his best friend. He has credible evidence that he is actually innocent of this crime. The victim s family believes he is innocent and wants him released. His petition asks the provocative question: Must George Toca die in prison because the Louisiana Supreme Court has found Miller v. Alabama, 567 U.S. (2012) (holding that the execution of juveniles violates the Eighth Amendment) non-retroactive in Louisiana? Questions presented (as limited by the Court): (1) Does the rule announced in Miller v. Alabama, 567 U.S. (2012), apply retroactively to this case? (2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception? UPDATE - Cert dismissed on Feb. 3, 2015, by agreement of the parties, due to mootness after Toca was released on a recent plea deal. 4. Juveniles: Retroactivity of Miller Round II. Montgomery v. Louisiana, 135 S. Ct. (cert. granted Mar. 23, 2015); decision below at 141 So. 3d 264 (La. 2014). Henry Montgomery has been incarcerated since 1963, serving a mandatory life sentence for a murder he committed just 11 days after he turned seventeen years of age. Montgomery filed a state district court motion to correct his illegal sentence in light of Miller v. Alabama, 567 U.S., 132 S. Ct. 2455 (2012), which holds that mandatory sentencing schemes requiring that all children convicted of homicide receive lifetime Prepared by Paul M. Rashkind 29 FDFCDC 30
C. AEDPA incarceration without possibility of parole... violate the Eighth Amendment s ban on cruel and unusual punishment. The Louisiana state courts denied Montgomery relief, relying on State v. Tate, 2012-2763 (La. Nov. 5, 2013), cert. denied, 134 S. Ct. 2663 (2014), which held that Miller is not retroactive on collateral review to those incarcerated in Louisiana. The question presented here is whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison? In addition to the question presented by the petition, the parties were directed to brief and argue the following question: Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. (2012)? 1. Appellate Rights of Successful Habeas Petitioner. Jennings v. Stephens, 135 S. Ct. 793 (Jan. 14, 2015). Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. The court of appeals reversed on the two grounds raised by the state, but said it had no jurisdiction to entertain the third issue since Jennings had neither crossappealed nor obtained a certificate of appealability. The Supreme Court reversed (6-3) in a decision authored by Justice Scalia, holding that Jennings was permitted to pursue the theory that the district court had rejected without taking a cross-appeal or obtaining a certificate of appealability. The majority declined to rule on whether AEDPA s certificate of appealability requirement in 2253(c) applies to cross-appeals in any other context, but found the requirement does not apply to the defense of a habeas judgment on alternative grounds. Justices Thomas, Kennedy and Alito dissented. 2. Deference to State Court Determinations in Absence of Clearly Established Supreme Court Precedent a. Due Notice of Charges. Lopez v. Smith, 135 S. Ct. 1 (Oct. 6, 2014) (per curiam). The information had charged Smith with murdering his wife, as both a principal and under an aiding and abetting theory. The Ninth Circuit found that Smith s Sixth Amendment and due process right to notice had been violated because the prosecution had tried the case only on the theory that Smith had delivered the fatal blow, and requested an aiding and abetting instruction at the close of trial. Reversing, the Supreme Court pointed out that the Ninth Circuit did not rely on any Supreme Court precedent holding that a defendant is deprived of adequate notice by a prosecutorial decision to focus on another theory of liability at trial. Instead, the Ninth Circuit relied on cases that stood only for the general proposition that a defendant Prepared by Paul M. Rashkind 30 FDFCDC 31
must have adequate notice of the charges against him. The caselaw therefore did not have a clearly established rule, as AEDPA requires for habeas relief. The Ninth Circuit erred by relying on its own precedent on the notice issue. The Court also rejected the Ninth Circuit s view that the inadequacy of the notice was a incorrect determination of the facts, finding that the adequacy of notice is a legal determination, not one of fact. [Summary by AFPD Timothy Cone]. b. Temporary Denial of Counsel. Woods v. Donald, 135 S. Ct. (Mar. 30, 2015) (per curiam). The Sixth Circuit held that Cory Donald s attorney provided per se ineffective assistance of counsel under United States v. Cronic, 466 U.S. 648 (1984), when he was briefly absent during testimony concerning other defendants. The Supreme Court reversed [b]ecause no decision from this Court clearly establishes that Donald is entitled to relief under Cronic. Although Cronic recognizes a rule of structural error when counsel is absent during a critical stage of trial, no Supreme Court decision yet holds that the introduction of evidence during a multi-defendant trial that incriminates only other defendants is a critical stage for defendants no so incriminated. The Court left open the underlying Sixth Amendment issue, holding only that in the federal habeas context relief should not be granted because the petitioner cannot overcome the AEDPA hurdle of clearly established Supreme Court precedent. c. Complete Denial of Summation. Glebe v. Frost, 135 S. Ct. 429 (Nov. 17, 2014) (per curiam). The trial judge insisted that in closing argument at trial the defense choose between arguing that the State failed to meet its burden of proving that Frost was an accomplice, and arguing that Frost committed the crimes under duress. On appeal, the Washington Supreme Court held this was error, but it was not structural error, a mistake that requires automatic reversal. On habeas review, the Ninth Circuit held that the Washington Supreme Court unreasonably applied federal law, because it contradicted Herring v. New York, 422 U.S. 853 (1975), which held that the complete denial of a summation amounts to structural error. The Supreme Court rejected the Ninth Circuit s reasoning, noting that prohibiting all [closing] argument differs from prohibiting argument in the alternative. The Court also rejected the Ninth Circuit s reasoning that the trial court, by prohibiting the defendant in closing from challenging the sufficiency of the evidence if he made a duress defense, in effect shifted the burden of proof and directed a verdict on guilt. The Court noted that the trial judge merely precluded the defense from simultaneously contesting reasonable doubt and claiming duress. Reasonable minds could disagree whether requiring Prepared by Paul M. Rashkind 31 FDFCDC 32
the defense to choose between alternative theories amounts to requiring the defense to concede guilt. [Summary by AFPD Timothy Cone]. d. No Adverse Inference Instruction. White v. Woodall, 134 S. Ct. 1697 (Apr. 23, 2014). Amidst overwhelming evidence of his guilt, Woodall pled guilty to kidnaping, raping, and murdering a 16-year-old child, and thus pled guilty to all aggravating circumstances. At the penalty phase trial, the prosecutor elected to present evidence of guilt and the circumstances of the crimes. Woodall did not testify; and his request that the jury be instructed not to draw any adverse inference from his decision not to testify (a no adverse inference instruction) was denied. He was sentenced to death by a Kentucky jury. The Kentucky Supreme Court affirmed. Even though the Supreme Court has never held that a defendant is entitled to a no adverse inference instruction at the sentencing phase of a trial where the defendant has pled guilty to the offense and all aggravating circumstances, the Sixth Circuit granted habeas relief to Woodall on the ground that the trial court s failure to provide such an instruction violated his Fifth Amendment right against self-incrimination. The Supreme Court reversed (6-3) in a decision written by Justice Scalia, because the Sixth Circuit violated the deference requirements of 28 U.S.C. 2254(d) a provision of law that some federal judges find too confining, but that all federal judges must obey. Because the Kentucky Supreme Court s rejection of respondent s Fifth Amendment claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ. Both the Kentucky Supreme Court and the court of appeals identified as the relevant precedents in this area the Supreme Court s decisions in Carter v. Kentucky, 450 U.S. 288 (1981), Estelle v. Smith, 451 U.S. 454 (1981), and Mitchell v. United States, 526 U.S. 314 (1999). Carter held that a no-adverse-inference instruction is required at the guilt phase. Estelle concerned the introduction at the penalty phase of the results of an involuntary, un-mirandized pretrial psychiatric examination. And Mitchell disapproved a trial judge s drawing of an adverse inference from the defendant s silence at sentencing with regard to factual determinations respecting the circumstances and details of the crime. It is clear that the Kentucky Supreme Court s conclusion is not contrary to the actual holding of any of these cases. Moreover, Mitchell included an express reservation of direct relevance here: Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it. Justice Breyer dissented (joined by Ginsburg and Sotomayor), concluding that the Court s decisions in Prepared by Paul M. Rashkind 32 FDFCDC 33
Carter and Estelle clearly establish that a criminal defendant is entitled to a requested no adverse inference instruction in the penalty phase of a capital trial. The dissent contends that these two decisions have been read too narrowly and that the majority placed to much weight on Mitchell s dictum. 3. Adjudication on the Merits under 2254(d) and Standard of Review. Chappell v. Ayala, 135 S. Ct. 401 (cert. granted Oct. 20, 2014); decision below at 756 F.3d 656 (9th Cir. 2014). Question presented by petitioner: Whether a state court s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an adjudicat[ion] on the merits within the meaning of 28 U.S.C. 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision. In addition to the question presented by the petition, the Court directed the parties to brief and argue the following question: Whether the Court of Appeals properly applied the standard articulated in Brecht v. Abrahamson. 507 U.S. 619 (1993). A current edition of the UNITED STATES SUPREME COURT REVIEW-PREVIEW-OVERVIEW is available at http://www.rashkind.com Prepared by Paul M. Rashkind 33 FDFCDC 34
ETHICS: REPRESENTING THE SOVEREIGN CITIZEN Patrick R. Hanes Andrea Lantz Harris NOTES FDFCDC 35
Frank Dunham Conference, 2015 ETHICS: REPRESENTING THE SOVEREIGN CITIZEN I. WHAT IS A SOVEREIGN CITIZEN? Sovereign citizen is a catchall phrase that refers to many different anti-government individuals and groups who share a core belief that the existing American governmental structure, including the courts and law enforcement, is a fraud and that they, the sovereign citizens, retain an individual common law identity that exempts them from the authority of those fraudulent government institutions. Generally, sovereign citizens do not operate in a formal group with established leadership. Rather, they operate independently or in loosely affiliated groups that come together to provide training, assist with paperwork and socialize with others with like-minded ideology. Sovereign citizens often refer to themselves as freemen or free men, indicating they are free from government control. Some of the organizations to which many sovereign citizens belong include Republic of the united States of America (RuSA), Moorish Nation, Freemen on the Land, and We the People Congress, among others. Most sovereign citizens are not violent. At their most harmless, sovereign citizens are eccentrics who talk what seems like gibberish to cops and magistrates and judges and then become law abiding when they face real legal trouble. At a more serious level, they may resist or decline to pay their taxes or to file returns, or they may burden the courts severely with the filing of hundreds and hundreds of pages of nonsensical documents. At their worst, they may resort to deadly force to defend their beliefs. In September, 2011, the FBI s Counterterrorism Analysis Section issued a warning about sovereigns that noted that the agency considers sovereign citizen extremists a domestic terrorism organization. Although there is no central leadership or organized group or membership, the Southern Poverty Law Center estimates that there are approximately 300,000 persons who would be considered adherents to the sovereign citizen ideology, such as it is. A. HISTORY Sovereign citizen ideology traces back to the Posse Comitatus and Freemen movements of the 1970s and 1980s. Posse Comitatus was a loosely organized racist and anti-semitic group that denied the legitimacy of taxes and believed that there was no legitimate form of government above that at the county level and no higher law enforcement authority than the county sheriff. Freemen on the land was also a loose group of people who believed that all statute law is contractual and that individuals could opt out of statute law and live under common and natural law. These movements faded a bit in the late 1980s but the ideology made a comeback in the 1990s with the rise of the Patriot movement. The Patriot movement was a collection of various different conservative, independent, largely rural, social movements that included organized militia members, tax protestors, and sovereign citizens. Adherents to the movement believed that individual liberties were in jeopardy due to unconstitutional actions taken by government officials to illegally accumulate power. The movement again faded until 2008, when sovereign citizen ideology came roaring back propelled by a declining economy, the efficiency of the 1 FDFCDC 36
Frank Dunham Conference, 2015 internet in spreading and legitimizing fanatical or extremist ideas, and the election of President Barack Obama. The sovereign citizen presence burst into public awareness through a series of acts of violence involving self-avowed sovereign citizens. In February 2010, a man believed to be associated with the movement flew a small plane into the IRS building in Austin, Texas, killing two people and injuring several others. In May 2010, two police officers in West Memphis, Arkansas, were shot dead during a routine traffic stop by two sovereign citizens with an AK-47. In August 2012, two sheriff s deputies were killed in an ambush at a trailer park outside New Orleans. Seven persons, all identified as sovereign citizens, were arrested in connection with the shooting. In June 2014, a federal ranger and a California Highway Patrol Officer were wounded in a shootout at a campground with a person described as a sovereign citizen. B. IDEOLOGY Although the many different sovereign citizen individuals and groups all have their own idiosyncrasies, they tend to share the core belief that at some point in history, the American government established by the founding fathers with a legal system sovereign citizens refer to as common law was secretly and illegally replaced by a new government system based on admiralty law. Under the common law, the sovereigns believe that they would be free men. Under the admiralty law, they are slaves, and secret government forces have an interest in keeping them that way. Sovereign citizens do not recognize the jurisdiction of admiralty courts. They may identify a court as an admiralty court by the presence of an American flag with gold fringe. Sometimes they claim the gold fringe indicates a military tribunal. United States v. Carpa, 271 F.3d 962, 964 n.2 (11th Cir. 2001). Sovereign citizen dogma rests on a quirky reading of history, incorporating discussions of the Magna Carta, the Bible, the Declaration of Independence, the Federalist Papers, the Constitution, Black s Law Dictionary, various Supreme Court decisions, acts of Congress, and the Uniform Commercial Code. Although there are variations on the theme, the story usually begins with the assertion of independence of the original thirteen colonies from England. Each colony had its own executive, legislature, and court system, subject to the authority of the crown. After the colonies became independent, they adopted the Articles of Confederation, under which each state retained its sovereignty, subject to the authority it agreed to delegate to the central government. In the sovereign citizen view of history, the Constitution did much the same, and while it gave the federal government jurisdiction over federal property within a state, the states otherwise continued to exercise complete authority over its territory and the persons residing within. George Washington, Benjamin Franklin, and the other Founding Fathers all held the status of Sovereign Citizenship, which sovereigns believe has, sadly, been lost along the way. 1. Adoption of Fourteenth Amendment Some sovereigns believe that the secret takeover of the government is related to the adoption of the Fourteenth Amendment. Before the Civil War, persons were citizens of states only, and the states belonged to a confederation of independent states, comprising the United States. After the Civil War, the United States incorporated, and the Fourteenth Amendment 2 FDFCDC 37
Frank Dunham Conference, 2015 was adopted to grant immigrant citizenship to the newly-freed slave population of the United States corporation. The former slaves, as a result, are subject to the laws of the federal government, but because the United States is a corporation, not a country, it has no authority over Sovereign State Citizens. This theory was popular among followers of the Posse Comitatus movement, who postulated that the Founding Fathers intended to create a Christian Republic of individually sovereign citizens based on common law, administered by ad hoc county courts composed of sovereign citizens. 2. Abandonment of Gold Standard Other sovereign citizen beliefs depend on a conspiracy theory that the secret government takeover had to do with the United States going off the gold standard in 1933. When that happened, the story goes, currency ( Federal Reserve Notes ) became worthless because it was not backed by specie (coins). Instead, the currency became backed by United States citizens, who were used as collateral, and were registered by virtue of social security numbers and birth certificates. The Treasury Department created an account for each citizen that contained each person s monetary net worth, referred to as a US Treasury Direct Account, and containing assets of anywhere from $630,000 to $300,000,000, known as a dollar value or credit. Apparently this is based on a person s expected future earnings. Each account is in the name of a third party, called a Straw man ( Stramineouos Homo), corporate person, or government entity, usually spelled in capital letters. As a result, there is a flesh-and-blood person divorced from the corporate shell account assigned to him. Through the process of redemption the sovereign citizen can split the straw man from the flesh-and-blood man, and once separated the flesh-and-blood man is (1) outside of government jurisdiction and (2) can access his treasury account. Sovereign citizens often attempt to obtain money from their US Treasury Direct Accounts (the Straw man) through the following process: (1) Lock the account by filing a UCC-1, thereby providing notice that the sovereign citizen intends to access the account. Typically, the sovereign citizen will name himself as both the Secured Party and the Debtor. (2) Request the release of funds from the account by submitting a document styled Acceptance for Value with Non Negotiable Charge Back. (3) Inform the Treasury Department that the request for release of funds has not been honored with an Acceptance of Charge Back document. Sovereign citizens also attempt to satisfy debts by sending a Charge Back notice to a creditor designating the Treasury Department as the party responsible for the debt. If the creditor refuses to accept the notice, the sovereign citizen might respond in a number of different ways, such as threatening legal action, submitting a Notice Arbitration, sending an Affidavit of Fiduciary naming the creditor s lawyer as his own to create a conflict, or filing an IRS 8300 form to claim the creditor has unreported income. 3 FDFCDC 38
Frank Dunham Conference, 2015 Government employees and officials are often the target of sovereign citizens tactics of harassment and intimidation. One of the most common tactics of sovereign citizen paper terrorism is the use of liens. Sovereign citizens believe that their names are their personal property and cannot be used by others without permission, as though they were trademarked or copyrighted. Unauthorized use of a name is a basis of the assessment of damages and compensation. Typically the sovereign citizen will send demand notices with deadlines, and when the deadlines expire, a lien will be filed. The filing of liens became such a problem that the Court Security Improvement Act of 2007 was enacted to specifically protect federal officials and employees from fraudulent liens. 18 U.S.C. 1521. II. REPRESENTING A SOVEREIGN CITIZEN Representing clients who espouse sovereign citizen beliefs poses many different challenges that often implicate a lawyer s ethical obligations under the Rules of Professional Conduct. A. TYPES OF CASES Defendants expressing sovereign citizen beliefs pop up in many different types of criminal cases but appear most often in tax fraud or avoidance cases. B. RIGHT TO REPRESENTATION OF COUNSEL 1. Sixth Amendment The Sixth Amendment guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense. 2. 28 U.S.C. 1654 In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. 3. 18 U.S.C. 3006A(b) Appointment of Counsel Any person charged with a felony is entitled to adequate representation by an attorney. Unless the person waives representation by counsel, the United States Magistrate judge or the court, if satisfied after appropriate inquiry that the person is financially unable to obtain counsel, shall appoint counsel. The court has inherent authority to appoint standby counsel. However, such appointment may not be made and counsel may not be compensated under the Criminal Justice Act unless the defendant qualifies for appointed counsel and representation is actually rendered by counsel. Accordingly, if a financially eligible pro se defendant agrees to be represented, at least in part, by standby counsel, compensation may be provided under the CJA. 4 FDFCDC 39
Frank Dunham Conference, 2015 In circumstances where standby counsel is appointed under the court s inherent authority, and counsel serves exclusively on behalf of the court to protect the integrity and continuity of the proceedings, and does not represent the defendant (i.e. the defendant has not accepted representation), any compensation to be paid counsel must be in the capacity of an expert or consultant under 5 U.S.C. 3109. Appointment under this section may be made without regard to the defendant s financial eligibility and compensation will be determined by the judicial officer according to CJA hourly rates and case maximums. C. RIGHT TO SELF-REPRESENTATION In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized a criminal defendant s Sixth Amendment right to self-representation, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol. For Fourth Circuit cases applying Faretta, see, e.g., United States v. Bush, 404 F.3d 263, 270-72 (4th Cir.), cert. denied, 546 U.S. 916 (2005); United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997); United States v. Gillis, 773 F.2d 549, 559 (4th Cir. 1985); and United States v. Lorick, 753 F.2d 1295, 1298 (4th Cir. 1985). To be effective, an assertion of the right of self-representation must be (1) clear and unequivocal; (2) knowing, intelligent and voluntary; and (3) timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.), cert. denied, 531 U.S. 994 (2000). It is preferable that the trial court inform the defendant on the record of the risks inherent in proceeding without counsel, although waiver of counsel may be determined from the record as a whole and need not be explicit. See, e.g., Bush, 404 F.3d at 270-72; Singleton 107 F.3d at 1097-98; United States v. Davis, 958 F.2d 47 (4th Cir. 1992); United States v. Gallop, 838 F.2d 105, 109-11 (4th Cir. 1988); see also Iowa v. Tovar, 541 U.S. 77, 91-93 (2004) (effectiveness of waiver depends on facts and circumstances of particular case; Constitution does not require that defendant be advised that waiving counsel entails risk that viable defense will be overlooked and that defendant would lose opportunity to obtain an independent opinion about whether it was wise to plead guilty). At the heart of the defendant s Sixth Amendment right to represent himself is the right to conduct his defense as he sees fit, to present his case in his own way. McKaskle v. Wiggins, 465 U.S. 168, 177 (1984). D. STANDBY COUNSEL In a footnote in Faretta, the Supreme Court noted that because a pro se defendant would still be required to comply with the usual procedural and substantive rules of trial, a State may even over objection by the accused appoint a standby counsel to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant s self-representation is necessary. 422 U.S. at 834 n.46. The trial court is authorized to appoint standby counsel even over the defendant s objection. The court is not required to appoint standby counsel. The absence of a right to 5 FDFCDC 40
Frank Dunham Conference, 2015 standby counsel has generated criticism of some courts for maneuvering disgruntled defendants to proceed pro se or to accept rejected counsel as standby counsel rather than delay the trial. The Supreme Court offered limited clarification of the role of standby counsel in McKaskle v. Wiggins, 465 U.S. 168 (1984), where the pro se defendant kept changing his mind during the trial about what he wanted counsel to do. After conviction, he complained that standby counsel had been too active and had interfered with his right to self-representation. The Fifth Circuit agreed, stating that standby counsel is to be seen, but not heard. The Supreme Court disagreed, explaining that the right to self-representation includes the right of the defendant to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. Standby counsel is not permitted to substantively interfere with significant tactical decisions, but as long as standby counsel does not usurp actual control, or the perception of actual control, standby counsel may actively participate in trial proceedings, and express disagreement outside of the presence of the jury. 1. Role Generally There is little consensus as to the role standby counsel plays, as counsel is forbidden on the one hand from usurping control of the case from the defendant, and required on the other hand to provide some form of ill-defined assistance when requested by the defendant. The ABA Criminal Justice Standards for the Defense Function describes the obligations of stand-by counsel this way: (a) An attorney whose assigned duty is to actively assist a pro se criminally accused person should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case, while still providing the attorney s best advice. (b) An attorney whose assigned duty is to assist a pro se criminally accused person only when the accused requests assistance may bring to the attention of the accused steps that could be potentially beneficial or dangerous to the accused, but should not actively participate in the conduct of the defense unless requested by the accused or as directed by the court. (c) In either case, the assigned attorney should respect the accused s right to develop and present the accused s own case, while still advising the accused of potential benefits and dangers the attorney perceives in the course of the litigation. Such an attorney should be fully prepared about the matter, in order to offer such advice and in case the court and the accused determine that the full representation role should be transferred to defense counsel at some point during the criminal proceedings. ABA Criminal Justice Standards for the Defense Function Standard 4-5.3 (4th ed. 2015), available at http://www.americanbar.org/groups/criminal_justice/standards/ DefenseFunctionFourthEdition.html. Some courts have been more explicit in defining a minimal role for standby counsel. See, e.g., United States v. Mullen, 32 F.3d 891, 894 (4th Cir. 1994) (reporting that trial court required standby counsel to sit in first row, to be available for consultation, and not to offer advice unless asked); United States v. Mills, 895 F.2d 897, 900 (2d Cir. 1990) (upholding trial court s 6 FDFCDC 41
Frank Dunham Conference, 2015 instruction to defendant that standby counsel was merely in court for [defendant] to consult and nothing else ); others have expressed the expectation that standby counsel should be ready on a moment s notice to assume representation if the defendant abandons self-representation. See, e.g., United States v. Studley, 892 F.2d 518, 522-23 (7th Cir. 1989) (affirming trial court s rejection of standby counsel s request for continuance because he should have been ready to take over defense); United States v. Turnbull, 888 F.2d 636, 637 (9th Cir. 1989) (noting that trial court appointed standby counsel to help defendant take over defense if necessary); Commonwealth v. Johnson, 676 N.E.2d 1123, 1124-25 (Mass. 1997) (reporting that trial court assumed no continuance necessary when defendant asked to be represented on trial date and standby counsel was not prepared to proceed); Howard v. State, 701 So. 2d 274, 285 (Miss. 1997) (characterizing role of standby counsel as including the necessity of preparing as adequately as possible to assume a more active role in the trial, should the need arise ). In United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004), standby counsel played an active role in research and writing, briefing and filing motions at the court s direction. Generally, the extent of standby counsel s participation is going to be a matter of discretion. United States v. Gellis, 914 F.2d 1492, 1990 WL 139341, at *6 (4th Cir. Sept. 25,1990) (unpublished). But standby counsel s role can be limited to assisting with procedural matters, United States v. Lawerence, 161 F.3d 250 (4th Cir. 1998), and standby counsel may be prohibited from passing unsolicited questions to the defendant in the jury s presence, United States v. Brown, 983 F.2d 1058, 1993 WL 998, at *3 (4th Cir. Jan. 6, 1993) (unpublished). ABA Standards for Criminal Justice: Special Functions of the Trial Judge, Standards 6-3.7(b) and (c)(3d ed., 2000), provide that the trial judge should clearly notify both the defendant and standby counsel of their respective roles and duties and describes two different functions for standby counsel: First, [w]hen standby counsel is appointed to provide assistance to the pro se accused only when requested, the trial judge should ensure that counsel not actively participate in the conduct of the defense unless requested by the accused or directed to do so by the court. Second, [w]hen standby counsel is appointed to actively assist the pro se accused, the trial judge should ensure that the accused is permitted to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case. 2. Role: Pretrial It is likely that the pro se defendant has little or no understanding of pre-trial activities or their importance. Motions must be filed, discovery material reviewed, an investigation must be conducted, legal research must be performed, and strategy developed. Issues will be forfeited if not raised in accordance with the Federal Rules of Criminal Procedure or with a court s scheduling order, and opportunities to obtain information or raise claims will be lost. Standby counsel should be prepared to engage in normal pretrial activities unless the defendant specifically rejects counsel s offer of assistance. At that point counsel s professional obligation will have been satisfied. A problem arises though if the government insists on treating standby counsel as the lawyer in the case rather than the pro se defendant. For example, the government may insist on providing discovery materials to the attorney and not the defendant. This practice undermines the pro se defendant s right to autonomy guaranteed by Faretta and McKaskle. Standby counsel 7 FDFCDC 42
Frank Dunham Conference, 2015 should then seek guidance from the court, particularly if the case involves thorny issues such as classified information or privileged information. 3. Role: Trial Standby counsel should actively guide the defendant through the trial by identifying hurdles, informing the defendant, and helping the defendant overcome them. In McKaskle, the Supreme Court held that standby counsel cannot unreasonably interfere with the perception that the defendant is representing himself; however, it did not prohibit standby counsel from any activity in front of the jury. In fact, McKaskle specifically states that standby counsel can assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete and help[ing] to ensure the defendant s compliance with basic rules of courtroom protocol and procedure. Standby counsel should also champion the pro se defendant s right to self-representation by arguing against court or prosecution actions that marginalize the defendant s role as an attorney. In United States v. McDermott, the trial court violated the defendant s right to represent himself by excluding him from thirty bench conferences during a six-day trial. 64 F.3d 1448, 1452-54 (10th Cir. 1995). If the court legitimately prohibits the defendant from conducting specific aspects of the trial, standby counsel should conduct them. In a Washington state case, State v. Carrico, the defendant was charged with child rape. The court refused to allow the defendant to crossexamine the child witnesses, required the defendant to write out questions, and assigned standby counsel the task of cross examining the children with the defendant s written questions. No. 38127-0-I, 1998 WL 372732, at *1 (Wash. Ct. App. July 6, 1998). Sometimes the pro se defendant will change his mind and ask for counsel in the middle of the trial. In United States v. Hagen, 468 F. App x 373 (4th Cir. 2012), the court appointed standby counsel and ordered counsel to continue preparing for trial as if he were trying the case and to assist defendant if and when and to the extent called upon by defendant. See also United States v. West, 877 F.2d 281, 286-87 (4th Cir. 1989) (no error for district court to deny motion to continue after court replaced pro se defendant with his standby counsel, who had been appointed only eleven days before trial). Occasionally, standby counsel represents a defendant who chooses to be absent. See, e.g., Johnson v. State, 507 A.2d 1134, 1139-40 (Md. Ct. Spec. App. 1986); Carrico, 1998 WL 372732, at *6. Standby counsel should ask the court to revisit the defendant s waiver of the Sixth Amendment right to assistance of counsel and should inform the court that standby counsel is ready to assume representation. If the defendant persists in representing himself or the court does not allow the representation, standby counsel should try to protect the record, argue issues of unfairness outside the jury s presence and seek permission to assume a greater role in the trial. 4. Role: Sentencing Standby counsel s role at sentencing is different from the role at trial, as the defendant s interest in self-representation is less weighty after having been found guilty and losing the 8 FDFCDC 43
Frank Dunham Conference, 2015 presumption of innocence that exists through the trial phase. See, e.g., Martinez v. Court of Appeal of California, 528 U.S. 152, 162 (2000) ( The status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict. ). The court has an independent interest in being made aware of mitigating information, and standby counsel owes a duty to the sentencing court to present appropriate mitigating information to supplement the presentence report. Standby counsel should, regardless of the defendant s wishes, conduct a mitigation investigation, and help the defendant present favorable information, exclude damaging information, evaluate sentencing guideline issues, and investigate the validity of prior convictions. Standby counsel s activities at this stage are less likely to affect Faretta concerns, and the court is always free to disregard standby counsel if it appears that the defendant s interests are actually being impaired. See United States v. Johnson, 38 F. App x 896 (4th Cir. 2002) (per curiam) (approving active role of standby counsel at sentencing). 5. Ineffective Assistance Pro se defendants sometimes complain that standby counsel rendered ineffective assistance of counsel, violating the defendant's constitutional rights. This argument encounters two barriers. First, the courts do not permit the pro se defendant to complain of her own ineptitude. Faretta, 422 U.S. at 834 n.46 ( A defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel ). The second barrier to relief is the fact that there is no constitutional right to standby counsel. The defendant cannot choose to waive assistance of counsel and represent himself and then insist on receiving the assistance of standby counsel. Courts have a difficult time accepting the proposition that a defendant who chose to represent himself, who was likely counseled against representing himself, and who has no constitutional right to the assistance of standby counsel, can complain if that assistance, granted by the trial court as a discretionary act, fails to meet some minimum standard. While the Supreme Court has not addressed this issue directly, it has rejected ineffective assistance of counsel arguments in other contexts. In Wainwright v. Torna, the Court held that since there is no constitutional right to counsel for discretionary state review, the defendant could not be deprived of the effective assistance of counsel by his retained counsel s failure to file a writ of certiorari to the Florida Supreme Court in a timely manner. 455 U.S. 586, 587-88 (1982). Similarly, in Coleman v. Thompson, the Supreme Court concluded that the defendant bears the risk of ineffective assistance of counsel in post-conviction review because the defendant has no constitutional right to counsel at that stage. 501 U.S. 722, 752-53 (1991). Every federal circuit court to consider the question has held that a defendant cannot bring an ineffective assistance of counsel claim based on standby counsel s actions (or inaction), because there is no constitutional right to standby counsel. See, e.g., United States v. Oliver, 630 F.3d 397, 413-14 (5th Cir. 2011); United States v. Mikolajczyk, 137 F.3d 237, 246 (5th Cir. 1998); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992); United States v. Schmidt, 105 F.3d 82, 89-91 (2d Cir. 1997); United States v. Morrison, 153 F.3d 34, 55 (2d Cir. 1998). 9 FDFCDC 44
Frank Dunham Conference, 2015 E. EXCEPTIONS TO RIGHT TO REPRESENT ONESELF 1. Competency Since a defendant s decision to proceed pro se is invalid unless the defendant is competent, that issue needs to be resolved by the court before allowing the defendant to represent himself. The Supreme Court defined the standard of competency in Dusky v. United States, 362 U.S. 402 (1960), as whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. The federal standard for competency to waive assistance of counsel has long been identical to the standard for competency to stand trial. Godinez v. Moran, 509 U.S. 389 (1993); see also United States v. Frazier-El, 204 F.3d 553, 559-60 (4th Cir. 2000). In 2008, however, the Supreme Court held that the Constitution does not prohibit states from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards, 554 U.S. 164, 177-78 (2008). 2. Disruptive Defendant The Supreme Court in Faretta provided that the trial judge may terminate selfrepresentation by a defendant who deliberately engages in serious and obstructionist misconduct and that [t]he right of self-representation is not a license to abuse the dignity of the courtroom. Faretta, 422 U.S. 806, 834 n.46 (1975). A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom. Fed. R. Crim. P. 43(c)(1)(C). Whether conduct is serious enough to warrant the defendant s removal is generally subject to the discretion of the trial court judge. The Supreme Court has described this as conduct that is so disorderly, disruptive, and disrespectful of the court that [defendant s] trial cannot be carried on with him in the courtroom. Illinios v. Allen, 397 U.S. 337, 343 (1970). If the defendant is appearing pro se and standby counsel is present, the court should first warn the defendant that pro se status will be denied and that standby counsel will take over if there is further disruption. If pro se status is denied and standby counsel takes over, the defendant may be removed from the courtroom for any further disruption. Benchbook for U.S. District Court Judges, Section 5:01: Handling a Disruptive Defendant (Sept. 2007). 10 FDFCDC 45
Frank Dunham Conference, 2015 F. APPOINTED COUNSEL S RELATIONSHIP TO A PERSON WHO DECLINES TO BE REPRESENTED The client-lawyer relationship is a consensual relationship. However, a court will often appoint an attorney to represent a defendant in a criminal matter even though the defendant has specifically expressed that he does not want an attorney. This often arises when 1) the defendant does not knowingly and/or clearly and unequivocally waive his right to counsel or 2) the defendant waives or forfeits his right to represent himself by his own disruptive conduct. (The pro se defendant does not have a right to engage in serious and obstructionist misconduct, to abuse the dignity of the courtroom, or fail to comply with relevant rules of procedural and substantive law. Faretta, 422 U.S. at 834 n.46.) When a defendant refuses to accept the services of a lawyer, the defendant is not entitled to expect the ordinary duties that arise from a normal attorney-client relationship under the Rules of Professional Conduct. The ethical question then becomes: Does the lawyer have a client to whom he owes duties? Or, rather, do the lawyer s ethical duties flow from the court s order assigning him to undertake the representation? Until the defendant accepts representation, the lawyer does not have an ethical duty to the defendant under the Rules of Professional Conduct. Virginia Rule of Professional Conduct Rule 1.2(a) provides that a lawyer shall abide by a client s decisions concerning the objectives of the representation, and Rule 1.2(b) provides that a lawyer may limit the objectives of the representation if the client consents after consultation. If a defendant refuses representation and wants to proceed without the lawyer s assistance in any capacity, it is impossible for the lawyer to provide representation. Similarly, other rules relating to a lawyer s obligations to a client only make sense if the defendant has accepted the attorney-client relationship. See, e.g., Rule 1.1 (duty to provide competent representation); Rule 1.3 (duty to act with reasonable diligence and promptness); Rule 1.4 (duty to communicate and keep client reasonably informed). If the defendant does not allow the attorney to represent him, he has no basis for holding the attorney accountable under these professional standards. This argument also applies to other duties imposed by the Rules of Professional Conduct, such as confidentiality (Rule 1.6) and conflicts of interest (Rules 1.7, 1.8, and 1.9). The principles underlying these rules of professional conduct are that a lawyer s role in the attorney-client relationship is to advocate for and further the client s interests, that a client has the right to make the ultimate decisions about what his interests and goals are, and that a client is competent to make certain important decisions about the representation. In sum, the attorney-client relationship is a consensual one in which they agree that the lawyer will follow the client s instructions about the objectives of the representation. The idea that an attorneyclient relationship can be created without consent of the client is an idea that conflicts with the concepts in the Rules. See, e.g., Faretta, 422 U.S. at 821 ( An unwanted counsel represents the defendant only through a tenuous and unacceptable legal fiction. ). When a court appoints an attorney to act as a standby counsel to a defendant who does not want representation, a lawyer s obligations flow either from (1) the express or implied terms of the court order under which the obligation to act is imposed or (2) the lawyer s obligations under the Rules to persons other than clients. See, e.g., Rule 7.1 (prohibiting false or misleading statements about a lawyer s services); Rule 8.4 (prohibiting engaging in misconduct, such as conduct involving dishonesty, fraud, deceit or misrepresentation). If the court s order appointing 11 FDFCDC 46
Frank Dunham Conference, 2015 counsel is unclear, appointed counsel may have to ask the court for clarification of their role or for permission to engage in certain parts of the legal representation. The authority of a court to either appoint an attorney to represent an unwilling defendant or to require an attorney continue to represent a defendant notwithstanding good cause for terminating the representation does not undermine the principle that client consent is still necessary for the creation of the attorney-client relationship. The court often, either expressly or impliedly, requires a lawyer to proceed as if the client had accepted the representation thereby imposing obligations on the lawyer similar to those duties arising from a consensual attorneyclient relationship. However, the obligations flow from the authority of the court to order the representation rather than from obligations that attorney has to the client flowing from the Rules of Professional Conduct. G. FRIVOLOUS ARGUMENTS The problem for the attorney appointed to represent a sovereign citizen is that the sovereign citizen if he does not reject the representation entirely at the outset as described above may insist that the attorney raise defenses that the attorney deems to be frivolous or otherwise without merit. The defendant s insistence puts counsel squarely in the dilemma of being obligated simultaneously to (1) zealously represent the defendant; (2) abide by the client s decisions regarding the objectives of representation; and (3) be prohibited from asserting a frivolous defense. Rule 1.2(a) of the Virginia Rules of Professional Conduct provides that: A lawyer shall abide by a client s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. (emphasis added). Comment One to Rule 1.2 elaborates on this distinction between means and objectives : Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by the law and the lawyer s professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. In that context, a lawyer shall advise the client about the advantages, disadvantages, and availability of dispute resolution processes that might be appropriate in pursuing these objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. These Rules do not define the lawyer s scope of authority in litigation. Rule 1.2 specifically lists certain decisions that belong to the client, such as the plea to be entered, whether to waive a jury trial, and whether the client will testify. This is a non- 12 FDFCDC 47
Frank Dunham Conference, 2015 exhaustive list, and the courts have identified a number of additional decisions that involve the basic objectives of the representation and which are, accordingly, also within the purview of the client: whether to appeal, whether to be represented by counsel, and what types of defenses to present. In contrast, tactical or strategic decisions are within the purview of the attorney and include decisions such as those relating to which witnesses to call, how to conduct crossexamination, choice of jurors, which motions to file, whether to request a mistrial, and whether to stipulate to easily provable facts. See LEO 1816. As noted in the commentary above, the client s right to control the objectives of the representation is tempered by the limits imposed by the law and the lawyer s professional obligations. For this reason, an attorney must refrain from making frivolous arguments even if it is the fervent desire of the client. Rule 3.1 of the Virginia Rules of Professional Conduct provides that: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. (Emphasis added). A defense is frivolous if the lawyer is unable to make a good faith argument on the merits of the actions taken or for a change or modification in the law. A defense is not frivolous merely because the lawyer believes that the client s position will not prevail. 1. Flesh-and-Blood Defense Many sovereign citizens will insist on presenting the flesh-and-blood defense, or some variation, which rests upon the assertion that the defendant is not under the jurisdiction of the courts of the United States. The basic premise rests on the theory detailed above, supra page 3, that there is a flesh-and-blood man who is separate from the corporate shell or strawman being prosecuted and that the court does not have jurisdiction over the real flesh-and-blood person. Under this defense, distinctions are made, for example between John Doe, a natural flesh-and-blood person created by God, and JOHN DOE, a U.S. corporate artificial person, a U.S. citizen, created by the government. Courts have routinely rejected the flesh-and-blood defense as being patently without merit. See e.g., United States v. Mitchell, 405 F. Supp. 2d 602, 604 (D. Md. 2005); United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (these theories sovereign citizen, securedparty creditor, or flesh-and-blood human being should be rejected summarily); United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005) (arguments not in good faith); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (rejecting shop worn argument that defendant is sovereign and beyond jurisdiction of district court); United States v. Phillips, 326 F. App x 400 (7th Cir. 2009) (dismissing jurisdiction arguments as frivolous). 13 FDFCDC 48
Frank Dunham Conference, 2015 2. Tax Arguments Many individuals who hold sovereign citizen beliefs refuse to pay taxes or fail to file tax returns out of an incorrect belief that the federal income tax is unconstitutional, invalid, voluntary, or otherwise does not apply to them. Most, if not all, of these arguments have been found to be without merit or deemed frivolous by many courts. If they have clearly been found to be without merit, the lawyer is prohibited from raising them. However, a good faith misunderstanding of the requirements of the law can be a defense to certain willful tax law violations. Many of the arguments rest on constitutional, statutory and procedural fallacies. A small sampling of some of the arguments raised by sovereign citizens follows: The federal income tax is unconstitutional because it is a direct tax that must be apportioned among the states in accordance with the census. This is false. While there is an apportionment requirement in the Constitution for direct taxes, the Sixteenth Amendment clearly eliminated the apportionment requirement for all taxes on incomes. The Sixteenth Amendment was not properly ratified. The Sixteenth Amendment gave Congress the power to tax incomes without apportionment. In 1985, William Benson and Martin Beckman wrote a book called The Law That Never Was, arguing that the Sixteenth Amendment was only ratified by four states because only four states (rather than the necessary thirty-six) ratified the exact version of the amendment passed by Congress. However, in 1913, Secretary of State Philander Knox considered the discrepancies and certified that the amendment had been ratified. Multiple courts have debunked this argument and determined it to be frivolous. See, e.g., United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. denied, 479 U.S. 853 (1986). The income tax is voluntary. This belief is based on a quotation by the Supreme Court in Flora v. United States, 362 U.S. 145, 175 (1960), that is frequently taken out of context by tax protesters: Our tax system is based upon voluntary assessment and payment and not upon distraint. This does not mean that paying taxes is optional; rather, it means that Congress can collect taxes by force, but the Supreme Court believed that Congress intended to give taxpayers an opportunity to comply before exercising that force. This argument has been determined to be frivolous over and over again. The income tax is only binding on people who have entered into contracts with the government, such as by applying for a Social Security number, driver s license, or other governmental benefit or privilege. This argument is not only utterly without foundation but has been repeatedly rejected by the courts. McLaughlin v. United States, 832 F.2d 986 (7th Cir. 1987). 14 FDFCDC 49
Frank Dunham Conference, 2015 3. Resources for Information About Frivolous Arguments IRS The Truth About Frivolous Tax Arguments http://www.irs.gov/tax-professionals/the-truth-about-frivolous-tax-arguments-section-i-ato-c#_toc350157885 The Tax Protester FAQ created by Daniel B. Evans (last updated in 2011) http://evans-legal.com/dan/tpfaq.html The Truth About Frivolous Tax Arguments http://www.quatloos.com/taxscams/taxprot2.htm SOURCES: ABA, Standing Committee on Ethics and Professional Responsibility, Formal Opinion 07-448, Appointed Counsel s Relationship to a Person Who Declines to Be Represented (October 20, 2007) James Erickson Evans, The Flesh and Blood Defense, 53 Wm. & Mary L. Rev. 1361 (Mar. 2012) J.J. MacNab, Sovereign Citizen Kane, Southern Poverty Law Center, Intelligence Report (Fall 2010, Issue No. 139) Ann Bowen Poulin, The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y.U. L. Rev. 676 (June 2000) John B. Snyder, Barbarians at the Gate?: The Law of Frivolity As Illuminated by Pro Se Tax Protest Cases, 54 Wayne L. Rev. 1249 (Fall 2008) Kenneth Troccoli, Control Over the Defense: Representing Zacarias Moussaoui, 33 Champion 30 (Dec. 2009) 15 FDFCDC 50
Virginia Rules of Professional Conduct Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.2 Scope of Representation (a) A lawyer shall abide by a client s decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client s decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer may limit the objectives of the representation if the client consents after consultation. (c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. (d) A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer s conduct. Rule 1.3 Diligence (a) A lawyer shall act with reasonable diligence and promptness in representing a client. (b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16. (c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3. Rule 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. FDFCDC 51
Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (b) To the extent a lawyer reasonably believes necessary, the lawyer may reveal: (1) such information to comply with law or a court order; (2) such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer s representation of the client; (3) such information which clearly establishes that the client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation; (4) such information reasonably necessary to protect a client s interests in the event of the representing lawyer s death, disability, incapacity or incompetence; (5) such information sufficient to participate in a law office management assistance program approved by the Virginia State Bar or other similar private program; (6) information to an outside agency necessary for statistical, bookkeeping, accounting, data processing, printing, or other similar office management purposes, provided the lawyer exercises due care in the selection of the agency, advises the agency that the information must be kept confidential and reasonably believes that the information will be kept confidential. (c) A lawyer shall promptly reveal: (1) the intention of a client, as stated by the client, to commit a crime and the information necessary to prevent the crime, but before revealing such information, the attorney shall, where feasible, advise the client of the possible legal consequences of the action, urge the client not to commit the crime, and advise the client that the attorney must reveal the client s criminal intention unless thereupon abandoned, and, if the crime involves perjury by the client, that the attorney shall seek to withdraw as counsel; 2 FDFCDC 52
(2) information which clearly establishes that the client has, in the course of the representation, perpetrated a fraud related to the subject matter of the representation upon a tribunal. Before revealing such information, however, the lawyer shall request that the client advise the tribunal of the fraud. For the purposes of this paragraph and paragraph (b)(3), information is clearly established when the client acknowledges to the attorney that the client has perpetrated a fraud; or (3) information concerning the misconduct of another attorney to the appropriate professional authority under Rule 8.3. When the information necessary to report the misconduct is protected under this Rule, the attorney, after consultation, must obtain client consent. Consultation should include full disclosure of all reasonably foreseeable consequences of both disclosure and non-disclosure to the client. Rule 1.8 Conflict of Interests: Prohibited Transactions (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client consents after consultation; (2) There is no interference with the lawyer s independence of professional judgment or with the client-lawyer relationship; and (3) Information relating to representation of a client is protected as required by Rule 1.6. Rule 1.14 Client With Impairment (a) When a client s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal clientlawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client s interests. 3 FDFCDC 53
Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer s physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer s services that the lawyer reasonably believes is illegal or unjust; (2) the client has used the lawyer s services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6) other good cause for withdrawal exists. (c) In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e). (e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer s possession (wills, corporate minutes, etc.) are the property of the client and, therefore, upon termination of the representation, those items shall be returned within a reasonable time to the client or the client s new counsel upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Also upon termination, the client, upon request, must also be provided within a reasonable time copies of the following documents from the lawyer s file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer s copies of client- 4 FDFCDC 54
furnished documents (unless the originals have been returned to the client pursuant to this paragraph); transcripts, pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client s refusal to pay for such materials as a basis to refuse the client s request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship. The lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required. The lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation. Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client s situation. Rule 3.1 Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, subject to Rule 1.6; (3) fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel; or 5 FDFCDC 55
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. (b) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (c) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. (d) A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal. Rule 6.2 Accepting Appointments A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) Representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) Representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) The client or the cause is so repugnant to the lawyer as to be likely to impair the clientlawyer relationship or the lawyer s ability to represent the other. 6 FDFCDC 56
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 1 of 7 3/12/2015 Intelligence Report, Fall 2010, Issue Number: 139 'Sovereign' Citizen Kane 434 69 By J.J. MacNab It had been one of those mornings for West Memphis, Ark., police officers Brandon Paudert and Bill Evans. By 11:00 on May 20, they'd already spent three hours monitoring a suspicious rental truck and vehicle with Arizona license plates parked at a local motel, trying to determine whether the truck contained a shipment of illegal drugs. As members of the West Memphis Police Department's drug interdiction team, their job was to stop the seemingly endless flow of narcotics that passed through their town on busy Interstate 40. Officer Paudert called it in, and the West Memphis chief of police arrived at the scene to assess the situation. When it was discovered that the truck and car was nothing more sinister than a grandmother moving her family, the good-natured ribbing began. After all, the chief of police was not just the officers' boss; he was Brandon Paudert's father. Murdered Officers Part of Deadly Trend West Memphis slaying only the latest in a disturbing trend of right-wing extremists murdering law enforcement officials Browse All Issues Subscribe to the Intelligence Report Law Enforcement Resources Donate "I told them to get off their butts and get back on the interstate," Chief Bob Paudert recounted later. "They were really laughing." Chagrined, Paudert and Evans returned to I-40, watching for signs of drugs on the move through their jurisdiction. When Evans spied a white minivan with unusual Ohio license plates, he pulled the van over at the exit near Mile Marker 275, and called his partner for backup. Safety came first, and in the dangerous world of drug trafficking, there is no such thing as a routine stop. Inside the white minivan, a 16-year-old boy named Joseph Kane remained in the passenger seat, while his father, Jerry, age 45, stood in front of the police SUV and argued with the officers. There was a tussle, and Jerry Kane pushed Officer Evans into a roadside ditch. The boy quickly emerged from the minivan with a loaded AK-47 and aimed at Evans. The officer put one hand on his pistol, and held the other up to the boy as if to signal "Stop." The boy shot Evans several times and turned his attention to Paudert, who took cover behind the police vehicle. A package delivery man, exiting the highway at Marker 275, stopped his truck to witness the horrific scene. He called 911, and the alert went out: "Officer down!" While Paudert was able to fire his pistol seven times, he was outgunned and the police vehicle offered little protection from Joe Kane's assault rifle. The boy chased Paudert around the FDFCDC 57
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 2 of 7 3/12/2015 police SUV, shooting him several times in the back of the head before returning to Evans in the ditch. There, he fired again. The Kanes then rushed to the minivan and pulled away, while Joe continued to shoot at the downed officers. Another alert went out: "Two officers down!" According to a preliminary investigation report, Brandon Paudert was struck 11 times and died at the scene; Evans was hit by 14 rounds and died at the hospital. In the next 90 minutes, there was a frenzy of activity around West Memphis. The highways were closed, law enforcement from various agencies converged on the area looking for the white minivan with odd Ohio plates, and calls started coming in from alert citizens. The van was spotted at a local country club, a commercial truck terminal, and an apartment building. One witness claimed that Jerry Kane had asked for directions to the nearest Walmart. As seen in Walmart security videotapes of the parking lot, Joe Kane walked into the store and made a purchase, while his father removed the license plates from the vehicle. The first to spot the van was an Arkansas wildlife officer who rammed into the Kanes' vehicle to prevent it from leaving. The Kanes fired more than a dozen rounds at the officer's truck, but he wasn't hit. As police converged on the scene, two more officers were wounded in a frenzied shootout before the Kanes were both killed. Crittenden County Sheriff Dick Busby was shot once in the shoulder, and W.A. Wren, West Memphis' chief of enforcement, was hit multiple times in the abdomen. Both men survived. Over the next few days, West Memphis mourned the loss of its officers. At the same time, the department, other law enforcement officials, and the public at large began to question exactly what had provoked the violence. Who are the 'Sovereigns'? It would be tempting to dismiss the violence that took place that day as an isolated event an unstable father and son who exploded in a moment of vicious, unexplained fury. The truth, however, is more frightening. Jerry Kane and his young son were active participants in the sprawling subculture of "sovereign citizens" in America: hundreds of thousands of farright extremists who believe that they not judges, juries, law enforcement or elected officials get to decide which laws to obey and which to ignore, and who don't think they should have to pay taxes. While law enforcement officers may disagree on how to deal with or even label this extremist subculture, one thing is certain: it's trouble. The sovereign movement is growing fast, and its partisans are clogging up the courts with their indecipherable filings. When cornered, many of them lash out in rage, frustration and, in the most extreme cases, acts of deadly violence. It is difficult to say precisely how many sovereigns there are in the United States today, in part because there is no central leadership and no organized group that members can join instead, there are a variety of local leaders with individualized takes on sovereign citizen ideology and techniques. Those FDFCDC 58
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 3 of 7 3/12/2015 who are attracted to this bizarre subculture typically attend a seminar or two, or visit one of the thousands of websites and online videos on the subject, and then simply choose how to act on what they've learned. Some start by testing sovereign ideology with small offenses such as driving without a license, while others proceed directly to taking on the IRS as tax protesters. In the mid-1990s, the IRS estimated that there were approximately 250,000 such tax protesters in the U.S., not all of whom were full-blown sovereign ideologues. Since the late 1990s, an abundance of evidence suggests that the sovereign citizen movement's growth has been explosive, although there have been no more recent IRS estimates because Congress in 1998 prohibited the agency from tracking or labeling those who file frivolous arguments in lieu of paying their taxes. But a conservative estimate of the number of all kinds of tax protesters today would be about 500,000. In the 2008 criminal tax trial of actor Wesley Snipes, whose tax filings made clear that he was a sovereign tax protester, IRS senior technical adviser Shauna Henline testified that the agency receives between 20,000 and 30,000 frivolous returns each year, along with roughly 100,000 letters from tax protesters. Earlier, in With their finances in shambles, Jerry Kane and his son Joe traveled the country giving sparsely attended seminars on avoiding foreclosure while clad in white suits. 2001, the U.S. Senate's Finance Committee held hearings on the growing movement and, by 2008, the Department of Justice had decided to introduce the National Tax Defier Initiative in a bid to target key movement leaders. "Simply stated," then-assistant Attorney General Nathan Hochman said in announcing the DOJ initiative, "we want to pull back the curtain and show the public that the promoters of these tax and bogus schemes are not some wizards that have revealed the tax-free universe to America, but instead are nothing more than garden variety hucksters and modern day snake oil salesmen, peddling their bogus tax products." Not all tax protesters are sovereign citizens, and many newer recruits to the sovereign life did not start out as tax protesters. But based on the available evidence, a reasonable estimate of hard-core sovereign believers today would be 100,000, with another 200,000 just starting out by testing sovereign techniques for resisting everything from speeding tickets to drug charges, for a total of 300,000. As sovereign theories go viral throughout the nation's prison systems and among people who are unemployed and desperate in a punishing recession, this number is likely to grow. Redeeming the 'Strawman' While many sovereign citizens own guns, their weapon of choice is paper. A simple traffic violation or pet-licensing case can end up provoking dozens of court filings containing hundreds of pages of pseudo-legal nonsense. For example, Donna Lee Wray, Jerry Kane's "common-law wife," was recently involved in a protracted legal battle in a dog-licensing case. She filed 10 sovereign documents in court over a two-month period, then declared victory when the harried prosecutor decided to drop the case. A three-year dog license in Wray's Pinellas County, Fla., costs $20. Tax cases are even worse sovereign filings in such legal battles can quickly exceed a thousand pages. While a normal criminal case docket might have 60 or 70 entries, many involving sovereigns have as many as 1,200. The courts are struggling to keep up, and judges, prosecutors and public defenders are being swamped. It isn't just the number of pages that is causing courts to sag under the weight of these filings. The documents are written in a kind of special sovereign code language that judges, lawyers FDFCDC 59
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 4 of 7 3/12/2015 and other court staff simply don't speak. Sovereigns believe that if they can find just the right combination of words, punctuation, paper, ink color and timing, they can have anything they want freedom from taxes, unlimited wealth, and life without licenses, fees or laws, are all just a few strangely worded documents away. It's the modern-day equivalent of "abracadabra." At its core, the current sovereign belief system is relatively simple and is based on a decadesold conspiracy theory. At some point in history, sovereigns believe, the American government set up by the founding fathers with a legal system the sovereigns refer to as "common law" was secretly replaced by a new Police officers Brandon Paudert (left) and Bill Evans, seen here during an April drug bust, had worked together frequently. On May 20, at the hands of a father-son pair of "sovereign citizens," they died together. government system based on admiralty law, the law of the sea and international commerce. Some sovereigns believe this perfidious change occurred during the Civil War, while others blame the events of 1933, when America abandoned the gold standard. Either way, they stake their lives and livelihood on the idea that judges around the country know all about this hidden government takeover but are denying the sovereigns' motions and filings out of treasonous loyalty to hidden and malevolent government forces. Under common law, or so they believe, the sovereigns would be free men. Under admiralty law, they are slaves, and secret government forces have a vested interest in keeping them that way. The next layer of the scheme is even more implausible. Since 1933, the U.S. dollar has been backed not by gold, but by the "full faith and credit" of the U.S. government. According to sovereign researchers, this means that the government has pledged its citizenry as collateral, by selling their future earning capabilities to foreign investors, effectively enslaving all Americans. This sale, they claim, takes place at birth. When a baby is born in the U.S., a birth certificate is issued, and the hospital usually requires that the parents apply for a Social Security number at that time. Sovereigns say that the government then uses that certificate to set up a kind of corporate trust in the baby's name a secret Treasury account which it funds with an amount ranging from $600,000 to $20 million, depending on the particular variant of the sovereign belief system. By setting up this account, every newborn's rights are cleverly split between those held by the flesh-and-blood baby and the ones assigned to his or her corporate shell account. The clues, many sovereigns believe, are found on the birth certificate itself. Since most certificates use all capital letters to spell out a baby's name, JOHN DOE is the name of the corporate shell "strawman," while John Doe is the baby's "real," flesh-and-blood name. As the child grows older, most of his legal documents will utilize capital letters, which means that his state-issued driver's license, his marriage license, his car registration, his criminal court records, his cable TV bill, and correspondence from the IRS will all pertain to his corporate shell identity, not his real, sovereign identity. The process sovereigns have devised to split the strawman from the flesh-and-blood man is called "redemption," and its purpose is two-fold. Once separated from the corporate shell, the newly freed man is now outside of the jurisdiction of all admiralty laws. More importantly, by filing a series of complex, legal-sounding documents, the sovereign can tap into that secret Treasury account for his own purposes. Over the last 30 years, there have been hundreds of sovereign promoters packaging different combinations of forms and paperwork, attempting to perfect the process. While no one has ever succeeded, of course, they know with the religious certainty of a true cult believer that they're close. All it will take is the right combination of words, say the promoters of the redemption scam. Jerry Kane was one such promoter. FDFCDC 60
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 5 of 7 3/12/2015 Why Do They Do it? Newcomers drift into the movement in a variety of ways. Originally, the sovereign citizens movement mostly attracted white supremacists and anti-semites, mainly because sovereign theories originated in groups who saw Jews as playing a behind-the-scenes role in manipulating financial institutions and controlling the government. Most early sovereigns, and some of those who are still on the scene, believed that being white was a prerequisite to becoming a sovereign citizen. They argued that the 14th Amendment to the Constitution, which gave blacks U.S. citizenship, also made black Americans permanently subject to federal and state governments, unlike themselves. In recent years, however, most new recruits are people who have found themselves in a desperate situation and are searching for a quick fix. Others are intrigued by the notions of easy money and living a lawless life, free from any unpleasant consequences. (Moreover, many self-identified sovereigns today are black and apparently completely unaware of the racist origins of their ideology.) When they experience some small success at using redemption techniques to battle minor traffic offenses or local licensing issues, they're hooked. For many, it's a political issue. They don't like taxes, traffic laws, child support obligations or making banks rich, but they are too impatient to try to change what they dislike by traditional, political means. Police surround the Kanes' vehicle after the final shootout in a Walmart parking lot. The Kanes had removed their license plates less than half an hour earlier. Photo by Alan Spearman/The Commercial Appeal In times of economic prosperity, sovereigns typically rely on absurd and convoluted schemes to evade state and federal income taxes and hide their assets from the IRS. In times of financial hardship, they turn to debt- and mortgage-elimination scams, techniques to avoid child support payments, and even attempts to use their redemption techniques to get out of serious criminal charges. Jerry Kane, who'd suffered a series of personal defeats in life, specialized in teaching a mortgage-elimination technique that had no basis in the actual law. Once in the movement, it's an immersive and heady experience. In the last three decades, the redemptionist subculture has grown from small groups of like-minded individuals in localized pockets around the nation to a richly layered society. Redemptionists attend specialized seminars and national conferences, enjoy a large assortment of alternative newspapers and radio networks, and subscribe to sovereign-oriented magazines and websites. They home school their children so that a new generation will not have to go through the same learning curve that they did to see past the government's curtain to the common-law utopia beyond. While the techniques sold by promoters never perform as promised, most followers are nonetheless content to be fighting the battle, and they blame only the judges, lawyers, prosecutors and police when their gurus' methods fail. While most have never achieved financial success in life, they take pride in engaging the government in battle, comparing themselves to the founding fathers during the American Revolution. In recent months, their movement has grown to the point where a group called the Guardians of the Free Republics is attempting to assemble its own common-law-based, alternative government on a national scale. Already, the group, which earlier this year demanded that the governors of all 50 states step down, claims to have set up a common-law court in every state. At least 1,350 people have signed up to serve as jurors on these pseudo-legal judicial bodies. Liens, Litigation and Murder A litigation plan based solely on conspiracies and absurd legal theories is doomed to fail. When the inevitable happens, the sovereign has two choices: he can admit he was wrong and fell for an obvious FDFCDC 61
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 6 of 7 3/12/2015 scam, or he can blame the government. Considering that most sovereigns were already desperate when they joined the movement, spending years and many dollars on worthless redemption techniques can only have worsened their situation. Realistically, some angry outbursts are to be expected when the moment of truth arrives. Sometimes, those outbursts are aimed at self or family. But far more often, the sovereign takes aim at his perceived enemies. The judge that dismisses his claim, the county recorder who refuses his filing, the reporter that calls him a deadbeat dad, and the sheriff who evicts him from his foreclosed home all are possible targets of a sovereign's rage (see tips for law enforcement officials, p. 24). Since most sovereigns favor paper over guns, this revenge most often takes the form of retaliatory property liens and tax forms that are designed to ruin an enemy's credit rating and cause them to be audited by the IRS. But in those cases where a sovereign feels particularly desperate, angry, battle-weary and cornered, his next government contact, no matter how minor, can be his final straw. The resulting rage can be lethal. Jerry and Joe Kane were not the first sovereigns to lash out at a routine traffic stop and it's unlikely they'll be the last. In 1995 in Ohio, a sovereign named Michael Hill pulled a gun on an officer during a traffic stop. Hill was killed. In 1997, New Hampshire extremist Carl Drega shot dead two officers and two civilians, and wounded another three officers before being killed himself. In that same year in Idaho, when brothers Doug and Craig Broderick were pulled over for failing to signal, they killed one officer and wounded another before being killed themselves in a violent gun battle. And, in a 1993 case that bears an eerie similarity to the recent events in West Memphis, an Alabama officer approached a family's car in a strip mall parking lot. A shopper there had told the officer that a boy in the back seat was asking for help. The officer walked to the car and asked to see the father's driver's license. There was an argument, and the father made some typical sovereign claims. Then, without warning, the father pulled out his gun and shot the officer. Badly wounded, the officer tried to run to his car, but instead met the wife of the sovereign, who pulled out her own weapon and shot him dead. The couple had warrants out for their arrest in Florida, and the car they were driving had unusual sovereign-style license plates. Sovereign citizens George Sibley and Linda Block were executed for the murder by the state of Alabama several years later. Citizen Kane May had been a stressful month for Jerry Kane. He'd been traveling around the country with his teenage son, giving seminars to financially strapped individuals and promising them the tools to avoid foreclosure. His seminar fee ranged from $100 to $300 "per man," but a man was free to bring his wife and children for that price. If a follower were in really dire straits, Kane would let him attend free. As a former long-haul trucker, Kane was used to long hours on the road with his son, but in his most recent online radio show, he'd told his followers that he was frustrated with the seminar circuit and planned to cut his scheduled tour off early, after one more date in Florida. A recent seminar in Denver had been a disaster no one had shown up and he'd just completed a two-day event in Las Vegas, traveling thousands of miles in his old Plymouth Voyager. Despite his efforts and time, only six people had attended. To make matters worse, Kane knew that driving cross-country was risky. As a sovereign citizen and a member of the larger antigovernment "Patriot" movement a free man who believed that the Constitution guaranteed his right to travel without restriction he was breaking a number of laws. He didn't have a driver's license. His van was registered to an accommodating ministry in Ohio. There was a brick of marijuana in the car. And, most importantly, he had outstanding warrants for his arrest in two states. In Ohio, he faced charges of forgery and theft by deception. And only a few weeks earlier, he'd been arrested in New Mexico for driving without a license and concealing his identity. He'd been preparing a series of documents to file in New Mexico that were designed to punish the police officer who arrested him. Kane was determined to make the officer and his family pay. FDFCDC 62
'Sovereign' Citizen Kane Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 7 of 7 3/12/2015 On May 20, Jerry and Joe Kane were driving east on I-40 from Las Vegas to their last seminar and a new life in Florida. Kane had met a Floridian named Donna Lee Wray at one of his foreclosure seminars three months earlier, and they had fallen in love. Father and son were headed, they thought, to a bright new life. Instead, they left a trail of human wreckage and smashed-up hopes and dreams. Today, even after learning many of the facts behind the sovereign citizens movement that helped lead the Kanes and others to murder, the late Officer Paudert's boss and father, the West Memphis chief, struggles to make sense of what happened. Bob Paudert mourns his son and the other casualties of the collision of sovereign citizen ideology and law enforcement, and he worries that his personal tragedy could repeat itself with other police officers on roads around the nation. "How much more routine can you get than a father and son in [what looked like] a church van?" he asked in an interview. "Your guard is down and you're just not ready for a shootout. We need indicators that tell us what to look for." There are telltale signs of sovereign citizens strange license plates, unusual comments about the Fed and other government agencies, and so on. But they are not always easy to spot. And while not all are violent sovereign leaders around the country have had mixed views of the Arkansas shootout, from painting the Kanes as heroes to various wild-eyed conspiracy theories about them being "set up" by government forces there is little to suggest that the killings have weakened the movement. Donna Lee Wray, for example, reacted to the death of her new family by firing off angry missives demanding, among other things, that she be paid $1 million every time her "copyrighted" name is printed by those writing about the case. The number of sovereigns across America is clearly expanding, and with that growth comes an increasing level of danger. Bob Paudert, in an emotional interview with the Intelligence Report, said he knows only too well what the cost can be. "It was the worst day of my life, ever," the chief said. "I hope no parent has to go through what we've been through." J.J. MacNab is a nationally known tax and insurance expert who has testified before the U.S. Congress and in other important venues. The author of numerous articles, she is currently at work on a book about the sovereign citizens movement. 2015. Southern Poverty Law Center. FDFCDC 63
The Sovereigns: A Dictionary of the Peculiar Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 1 of 3 3/12/2015 Intelligence Report, Fall 2010, Issue Number: 139 The Sovereigns: A Dictionary of the Peculiar 220 36 Adherents of the "sovereign citizens" movement and of sovereign financial scams like "redemption" are known for their bizarre use of language and Byzantine belief system. What follows is a lexicon or, more precisely, an idioticon, a dictionary of a peculiar dialect meant to help court officials, law enforcement officers and the general public make their way through the sovereigns' verbal fog. Browse All Issues Subscribe to the Intelligence Report Law Enforcement Resources 14th Amendment citizen Donate Sovereign citizens describe 14th Amendment citizens as subject to federal and state governments, unlike themselves. Because the amendment gave citizenship to freed slaves, a racist variant of sovereign-citizen theory holds that blacks are subject to the governments and that being white is a prerequisite to being a sovereign citizen. Others claim all state citizens were converted by the constitutional amendment to "Federal Citizens," who can only be freed by a process known as "asseveration." Accepted for value When a sovereign receives a bill from the IRS, a bank, or even the cable company, under a twisted reading of the Uniform Commercial Code, he believes he can simply write "Accepted for Value" on that bill and it will be paid by his secret Treasury Direct Account, set up by the government when he was born. Admiralty law/common law According to sovereign beliefs, there are two types of law: common law and admiralty law. Since the U.S. went off the gold standard in 1933, sovereigns say, no one has been able to pay a debt with "real" money, and therefore the country has been operating under commercial law, which sovereigns equate with admiralty law, the law of the seas. Thus, they argue, completely speciously, that Americans have been deprived of their original common law, under which the government can only impose regulations on citizens with their consent, since 1933. Bill of Exchange A fake check used to access the funds in the secret Treasury account supposedly set up by the government to monetize the value of each citizen's life at birth. Birth certificate This form establishes each person's corporate shell, a kind of evil doppelgänger that is attached to every flesh-and-blood baby. That shell is then supposedly sold by the government as a security to foreign investors to enrich Federal Reserve bankers. The proof that the certificate has secret meaning is found in the use of all capital letters, bond paper and a seal and/or watermark all of which are thought to reflect admiralty law. Citizen/citizen In the 18th-century colonies, nouns were usually capitalized, although the practice was going out of style by the time of the Revolution. Based on that, sovereigns see secret meaning in the use or nonuse of capitalized letters. For example, a "citizen" is a sovereign citizen imbued with all natural rights, whereas a "Citizen" is a 14th Amendment citizen subject to the rules and regulations of government. FDFCDC 64
The Sovereigns: A Dictionary of the Peculiar Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 2 of 3 3/12/2015 Common-law court Pseudo-legal courts set up to hear matters concerning sovereign citizens, sometimes also called "freemen." They have been used to put enemies on trial for such offenses as treason, rule on matters of interest to sovereigns and, frequently, to formalize citizens' declarations of sovereignty, a process often known as asseveration. Flag fringe Based on the fact that Navy flags and many other military flags have gold fringe, sovereigns believe the presence of fringe on flags in federal courts isn't just decorative, but rather proof that the nation is under admiralty law. Form 1099-OID Although the IRS uses this form for zero-coupon bonds and collateralized bonds, sovereigns believe that the 1099-OID gives them access to the money in the secret Treasury Direct Account that the government funded at their birth. Name in all capital letters JOHN ROBERT DOE, for instance, signifies the corporate shell of a person, as opposed to the fleshand-blood person. Name punctuation John-Robert: Doe signifies a flesh-and-blood person named John-Robert of the family Doe, as opposed to a punctuation-free name, JOHN ROBERT DOE, which refers to the corporate shell of a person. Negative averment The trick, used by many sovereigns, of twisting all statements into the form of a question in order to shift the burden of truth to the opponent. Red ink In some states, bonds are canceled using red ink. Sovereigns therefore sign many legal documents and correspondence in red ink to signify that they are canceling the bond attached to their birth certificate or corporate self. Others believe the color of the ink represents the blood of the flesh-andblood person. Redemption The phony legal process sovereigns use to separate a person's flesh-and-blood body from their mythical corporate shell. Since only the corporate shell is subject to taxes, traffic laws and license requirements, the ability to separate the two is the key to liberating people from such requirements. An added bonus is that the newly freed sovereign can then write checks, or "bills of exchange," on the account the government has set up to monetize the person's life and earnings. Strawman The label assigned to the corporate shell in the redemption process. This corporate shell is attached to a baby at birth when a birth certificate is typed out using all capital letters and a Social Security number is applied for. Sui juris Many sovereigns add this Latin phrase, meaning "of one's own right," to their flesh-and-blood names on legal documents to signify that they are reserving all the rights to which a free man is entitled. Treasury Direct Account When a baby is born, sovereigns believe that the government funds a secret Treasury account in that baby's corporate shell name, based on that person's future earnings. This account can be accessed by writing special checks to pay taxes, mortgage balances and other debts. Sovereigns variously believe the account's value is between $600,000 and $20 million. FDFCDC 65
The Sovereigns: A Dictionary of the Peculiar Southern Poverty Law Center http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2010/fall/sove... Page 3 of 3 3/12/2015 Truth language A complex and bizarre set of language rules designed to mimic the secret language of the law. All sentences must start with the preposition "for," have a minimum of 13 words, and use more nouns than verbs. Punctuation rules are just as complex. UCC-1 Statement When a sovereign successfully separates his flesh-and-blood body from his corporate shell in the redemption process, the flesh-and-blood body then can file a UCC-1 statement against their corporate self in order to preserve the value of that corporate self's Treasury Direct Account for their own use. Since most jurisdictions are getting wise to sovereigns' UCC games, sovereigns often must shop jurisdictions until they find one willing to file the statement without question. 2015. Southern Poverty Law Center. FDFCDC 66
FOURTH CIRCUIT UPDATE G. Alan DuBois Patrick L. Bryant DISCUSSION OVERVIEW I. The State of the Fourth Circuit A. New judge Harris B. Rule changes C. Unpublished opinions controversy II. Developments in Fourth Circuit Case Law A. Sentencing issues 1. Relevant conduct (Burns, Flores-Alvarado) 2. Reasonableness review (Howard) FDFCDC 67
3. Crime of violence / violent felony (Omargharib, Archie, McDowell, Valdovinos) B. Miscellaneous issues 1. Witnesses (Garcia) 2. SORNA (Price, Collins) 3. Probable cause (Saafir) 4. Reasonable expectation of privacy (Hill) 5. Exclusionary rule (Stephens) 6. Substantial assistance (Spinks) 7. Eighth Amendment (Cobler) 8. Second Amendment (Carter) FDFCDC 68
FOURTH CIRCUIT DECISIONS ON CRIMINAL LAW AND PROCEDURE Published Between April 1, 2014, and March 31, 2015 Prepared by Frances H. Pratt, Assistant Federal Public Defender Office of the Federal Public Defender, Alexandria, Virginia FDFCDC 69
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page i TABLE OF CONTENTS INTRODUCTION.............................................................. 1 I. OFFENSES............................................................. 1 8 U.S.C. 1325, Improper Entry by Alien..................................... 1 8 U.S.C. 1326, Illegal Reentry After Removal................................. 1 18 U.S.C. 3, Accessory After the Fact....................................... 2 18 U.S.C. 111, Assault................................................... 2 18 U.S.C. 373, Solicitation to Commit Crime of Violence....................... 2 18 U.S.C. 401 et seq., Contempt............................................ 2 18 U.S.C. 922, 924, Firearms............................................. 2 18 U.S.C. 1920, False Statement or Fraud re. Employee Compensation............. 3 18 U.S.C. 1951, Hobbs Act................................................ 3 18 U.S.C. 1959, Violent Crimes in Aid of Racketeering Activity (VICAR).......... 3 18 U.S.C. 1962, Racketeering (RICO)....................................... 4 18 U.S.C. 2250, Failure to Register as Sex Offender (SORNA)................... 4 21 U.S.C. 841, Controlled Substance Offenses................................ 4 II. COMMERCE CLAUSE ISSUES............................................ 5 III. SECOND AMENDMENT ISSUES.......................................... 5 IV. FOURTH AMENDMENT ISSUES.......................................... 5 Probable Cause (see also Warrants, infra)...................................... 5 FDFCDC 70
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page ii Warrants................................................................ 5 Exclusionary Rule........................................................ 6 V. FIFTH AMENDMENT ISSUES (Pre-trial and Trial)............................. 6 Competency to Stand Trial................................................. 6 Due Process............................................................. 6 Grand Jury / Indictment.................................................... 6 Self-Incrimination........................................................ 6 VI. SIXTH AMENDMENT ISSUES (Pre-trial and Trial)............................ 7 Confrontation............................................................ 7 Counsel................................................................ 7 Jury.................................................................... 7 Venue.................................................................. 7 VII. OTHER PRE-TRIAL ISSUES............................................... 8 Discovery (Fed. R. Crim. P. 16)............................................. 8 Indictment.............................................................. 8 Motions, In General (Fed. R. Crim. P. 12)...................................... 8 Joinder / Severance (Fed. R. Crim. P. 8, 14).................................... 8 Statute of Limitations (18 U.S.C. 3282 et seq.)................................ 8 Subpoenas (Fed. R. Crim. P. 17)............................................. 9 Venue (18 U.S.C. 3235 et seq.)............................................ 9 Wiretaps (18 U.S.C. 2518)................................................ 9 FDFCDC 71
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page iii VIII. TRIAL ISSUES.......................................................... 9 Evidence................................................................ 9 Confrontation...................................................... 9 Federal Rules of Evidence 401 et seq.................................... 9 Federal Rules of Evidence 501 et seq................................... 10 Federal Rules of Evidence 701 et seq................................... 10 Federal Rules of Evidence 901 et seq................................... 10 Sufficiency of Evidence............................................. 11 Jury Instructions......................................................... 11 Conduct of Judge........................................................ 11 IX. PLEA ISSUES.......................................................... 11 Plea Agreement Provisions................................................ 11 Entry of Guilty Plea (Fed. R. Crim P. 11)..................................... 12 X. SENTENCING ISSUES.................................................. 12 Constitutional Considerations.............................................. 12 Sixth Amendment................................................. 12 Eighth Amendment................................................ 12 Sentencing Statutes...................................................... 12 18 U.S.C. 924(e), Armed Career Criminal Act (ACCA).................. 12 18 U.S.C. 981, Forfeiture.......................................... 13 18 U.S.C. 3553, Sentencing........................................ 13 18 U.S.C. 3583, Supervised Release.................................. 13 FDFCDC 72
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page iv 18 U.S.C. 3663, 3663A, Restitution................................. 13 Sentencing Guidelines.................................................... 14 U.S.S.G. 1B1.3, Relevant Conduct................................... 14 U.S.S.G. 2B1.1, Fraud............................................ 14 U.S.S.G. 2C1.1 et seq., Offenses Involving Public Officials............... 15 U.S.S.G. 2G2.1 et seq., Child Pornography............................ 15 U.S.S.G. 2K1.4, Arson............................................ 16 U.S.S.G. 2K2.1 et seq., Firearms Offenses............................. 16 U.S.S.G. 2L1.2, Illegal Reentry After Removal......................... 16 U.S.S.G. 3A1.1 et seq., Victim-Related Adjustments.................... 17 U.S.S.G. 3B1.1 et seq., Role Adjustments............................. 17 U.S.S.G. 3E1.1, Acceptance of Responsibility.......................... 17 U.S.S.G. 4A1.1 et seq., Criminal History.............................. 18 U.S.S.G. 4B1.1 et seq., Career Offenders and Other Recidivists............ 18 U.S.S.G. 5D1.1 et seq., Imposition of Supervised Release................ 18 U.S.S.G. 6A1.3, Resolution of Disputed Factors........................ 19 Expert Assistance........................................................ 19 Reasonableness of Sentence................................................ 19 XI. REVOCATION ISSUES.................................................. 20 Revocation............................................................. 20 Sentencing............................................................. 20 FDFCDC 73
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page v XII. APPELLATE ISSUES.................................................... 20 Reviewability of Issues................................................... 20 Standards of Review..................................................... 21 Harmless Error Review............................................. 21 Procedural Issues........................................................ 21 XIII. POST-CONVICTION ISSUES............................................. 21 FDFCDC 74
FOURTH CIRCUIT DECISIONS ON CRIMINAL LAW AND PROCEDURE Published between April 1, 2014, and March 31, 2015 Prepared by Frances H. Pratt, Assistant Federal Public Defender Office of the Federal Public Defender, Alexandria, Virginia INTRODUCTION This outline documents the published decisions of the Fourth Circuit over the past twelve months that address criminal law and procedure issues, primarily on direct appeal. Decisions that represent defense wins or otherwise contain defense-favorable findings are marked by an exclamation point (!). Decisions that, in the compiler s judgment, are significant because they contain particularly lengthy, thoughtful, or otherwise useful discussion are marked by an asterisk (*). Note that not every issue raised in a decision is reflected in the outline. Please report errors or omissions in the outline to the compiler at fran_pratt@fd.org. I. OFFENSES 8 U.S.C. 1325, Improper Entry by Alien United States v. Sonmez, 777 F.3d 684 (4th Cir. Feb. 2, 2015) (Keenan, J.) (D. Md.) (where defendant charged with marriage fraud in violation of 8 U.S.C. 1325(c) (knowingly entering into marriage for purpose of evading immigration laws), district court did not abuse discretion in refusing defendant s proposed jury instruction that government must prove that defendant s sole purpose in entering into marriage was to obtain immigration benefit and that defendant had no intent to establish life with spouse) 8 U.S.C. 1326, Illegal Reentry After Removal United States v. Avila, 770 F.3d 1100 (4th Cir. Nov. 4, 2014) (Agee, J.) (W.D.N.C.) (California s first-degree burglary is crime of violence under 18 U.S.C. 16(b) for purposes of 8 U.S.C. 1101(a)(43)(F) (definition of crime of violence for aggravated felony ) and illegal reentry s guideline s 8-level bump for aggravated felony ) (N.B.: decision notes that conviction did not qualify as burglary under 1101(a)(43)(G) because California offense is defined more broadly than generic offense, and while not noted in decision, conviction did not qualify for 16-level bump for crime of violence because definition of term for that enhancement does not include residual clause language that is present in 16(b))! * Omargharib v. Holder, 775 F.3d 192 (4th Cir. Dec. 23, 2014) (Floyd, J.; Niemeyer, J., concurring) (BIA) (holding that Virginia s grand larceny offense is indivisible as matter of law under Fourth Circuit cases construing Descamps and is not theft offense constituting aggravated felony because it includes fraudulent conduct; concurrence discusses elements-versus-means distinction adopted in Descamps) FDFCDC 75
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 2! Castillo v. Holder, 776 F.3d 262 (4th Cir. Jan. 14, 2015) (Keenan, J.) (BIA) (Virginia s unauthorized use of motor vehicle offense is not theft offense constituting aggravated felony ) Espinal-Andrades v. Holder, 777 F.3d 163 (Jan. 22, 2015) (Wynn, J.) (BIA) (holding that Maryland offense of arson qualifies as aggravated felony ) 18 U.S.C. 3, Accessory After the Fact United States v. White, 771 F.3d 225 (4th Cir. Nov. 17, 2014) (Traxler, J.) (S.D. W. Va.) (in insurance fraud case involving arson of duplex apartment building that defendant owner commissioned neighbors to commit, defendant s statements to insurance company representatives that tenants may have started fire were sufficient to establish that defendant provided assistance to prevent apprehension, trial or punishment of neighbors for arson) United States v. White, 771 F.3d 225 (4th Cir. Nov. 17, 2014) (Traxler, J.; Wynn, J., dissenting) (S.D. W. Va.) (on plain error review following supplemental briefing requested by court after oral argument on question of whether defendant can be convicted of both being principal in substantive offense under 18 U.S.C. 2 and being accessory after the fact for the same substantive offense under 3, finding reversal would not be warranted without deciding whether there was any error in first instance) 18 U.S.C. 111, Assault United States v. Briley, 770 F.3d 267 (4th Cir. Oct. 22, 2014) (Wilkinson, J.) (E.D. Va.) (affirming district court s denial of motion to dismiss two counts alleging violations of 111(a) for failure to state an offense because assault is not a required element of other offenses included in provision) 18 U.S.C. 373, Solicitation to Commit Crime of Violence United States v. Barefoot, 754 F.3d 226 (4th Cir. June 9, 2014) (King, J.) (E.D.N.C.) (offense is not limited to overt solicitations; rather, it includes inducements and endeavors to persuade) 18 U.S.C. 401 et seq., Contempt United States v. Westbrooks, F.3d, 2015 WL 1089006 (4th Cir. Mar. 13, 2015) (Gregory, J.) (W.D.N.C.) (in prosecution for contempt based on failure to comply with grand jury subpoena, defendant s due process rights were not violated by having to prove advice-of-counsel defense; while government must prove element of willfulness, a court may require defendant to produce evidence supporting prima facie defense) 18 U.S.C. 922, 924, Firearms United States v. Carter, 750 F.3d 462 (4th Cir. Apr. 30, 2014) (Niemeyer, J.) (S.D. W. Va.) (on appeal from remand after first appeal concerning Second Amendment challenge to 18 U.S.C. FDFCDC 76
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 3 922(g)(3), holding that statute, which prohibits possession of firearms while being an unlawful user of and addicted to a controlled substance, reasonably serves and proportionally advances government s important interest in preventing gun violence) United States v. Bran, 776 F.3d 276 (4th Cir. Jan. 22, 2015) (Shedd, J.) (E.D. Va.) (where defendant was charged with aiding and abetting another to cause the death of a person through the use of a firearm in the course of committing a 924(c) violation (using a firearm during and in relation to crime of violence), in violation of 18 U.S.C. 924(j), and verdict form contained both general verdict and three-part special interrogatory, but jury did not find that defendant aided and abetted commission of 924(c) violation, jury s general verdict and specific finding that defendant aided and abetted discharge of firearm necessarily included a finding as to 924(c) violation) United States v. Bran, 776 F.3d 276 (4th Cir. Jan. 22, 2015) (Shedd, J.; King, J., dissenting) (E.D. Va.) (joining several circuits in ruling that mandatory life sentence for violation of 18 U.S.C. 924(j) must be imposed to run consecutively to any other sentence because 924(j) incorporates all of 924(c), including mandatory consecutive sentencing provision) (N.B.: the Fourth Circuit denied rehearing; a petition for writ of certiorari will likely be filed) 18 U.S.C. 1920, False Statement or Fraud re. Employee Compensation! United States v. Catone, 769 F.3d 866 (4th Cir. Oct. 15, 2014) (Floyd, J.) (W.D.N.C.) (finding Apprendi error in failure to have jury determine dollar amount that increased misdemeanor to felony (and noting circuit split on issue); further finding that error was not harmless) 18 U.S.C. 1951, Hobbs Act United States v. Ocasio, 750 F.3d 399 (4th Cir. Apr. 29, 2014) (King, J.) (D. Md.) (reaffirming circuit precedent that conspiracy to commit extortion does not require that conspirators agree to obtain property from someone outside conspiracy; in other words, a conspirator can be a victim) (N.B: the Supreme Court has granted certiorari in this case, see 2015 WL 852421 (U.S. Mar. 2, 2015), and it will be argued in October 2015) United States v. Taylor, 754 F.3d 217 (4th Cir. June 6, 2014) (Wilkinson, J.) (W.D. Va.) (in case involving robberies of drug dealers charged under Hobbs Act, finding evidence was sufficient to establish jurisdictional element of effect on interstate commerce under depletion of assets theory and under targeting theory) 18 U.S.C. 1959, Violent Crimes in Aid of Racketeering Activity (VICAR) United States v. Umaña, 750 F.3d 320 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (W.D.N.C.) (on plain error review, finding that venue in Western District of North Carolina was proper even though murder occurred in Middle District, because racketeering activity occurred in Western District) FDFCDC 77
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 4 United States v. Umaña, 750 F.3d 320 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (W.D.N.C.) (on plain error review, rejecting argument that VICAR violates Commerce Clause either facially or as applied) 18 U.S.C. 1962, Racketeering (RICO) United States v. Cornell, F.3d, 2015 WL 1137153 (4th Cir. Mar. 16, 2015) (Agee, J.) (M.D.N.C.) (rejecting argument that jury instruction in trial for racketeering conspiracy, 18 U.S.C. 1962(d), was erroneous because it required jury to find only de minimis effect on interstate commerce even where racketeering enterprise did not engage in economic activity; rejecting defendants reliance on out-of-circuit case supporting their position that substantial effect on interstate commerce was required) United States v. Cornell, F.3d, 2015 WL 1137153 (4th Cir. Mar. 16, 2015) (Agee, J.) (M.D.N.C.) (because RICO conspiracy does not require proof of overt act, no instruction is required that jury must find commission of specific predicate act(s); jury need find only that defendant(s) agreed to commit types of acts) United States v. Cornell, F.3d, 2015 WL 1137153 (4th Cir. Mar. 16, 2015) (Agee, J.) (M.D.N.C.) (as to one defendant in RICO conspiracy trial, evidence was sufficient to find him guilty of conspiracy where even though he was not member of violent gang, he participated in at least five armed robberies with gang members) 18 U.S.C. 2250, Failure to Register as Sex Offender (SORNA) United States v. Collins, 773 F.3d 25 (4th Cir. Dec. 8, 2014) (Floyd, J.) (S.D. W. Va.) (evidence at bench trial was sufficient to establish that defendant knowingly failure to register) United States v. Price, 777 F.3d 700 (4th Cir. Feb. 3, 2015) (King, J.) (D.S.C.) (as matter of statutory interpretation, ruling that in determining whether defendant s prior conviction is sex offense as defined in 42 U.S.C. 16911(5)(A)(ii), such that defendant must register as sex offender, district court must apply circumstances-specific (or non-categorical) approach, which goes beyond elements of offense of conviction to focus on facts of offense, rather than categorical approach, which is limited to elements) 21 U.S.C. 841, Controlled Substance Offenses United States v. McFadden, 753 F.3d 432 (4th Cir. May 21, 2014) (Keenan, J.) (W.D. Va.) (Controlled Substance Analogue Enforcement Act, 21 U.S.C. 802, 813, is not unconstitutionally vague as applied to defendant) (N.B: the Supreme Court has granted certiorari in this case, see 135 S. Ct. 1039 (Jan. 16, 2015), and it will be argued on April 21, 2015) FDFCDC 78
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 5 II. COMMERCE CLAUSE ISSUES United States v. Umaña, 750 F.3d 320 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (W.D.N.C.) (on plain error review after trial for murder in aid of racketeering, 18 U.S.C. 1959(a)(1), rejecting argument that VICAR violates Commerce Clause either facially or as applied) United States v. Cornell, F.3d, 2015 WL 1137153 (4th Cir. Mar. 16, 2015) (Agee, J.) (M.D.N.C.) (rejecting argument that jury instruction in trial for racketeering conspiracy, 18 U.S.C. 1962(d), was erroneous because it required jury to find only de minimis effect on interstate commerce even where racketeering enterprise did not engage in economic activity; rejecting defendants reliance on out-of-circuit case supporting their position that substantial effect on interstate commerce was required) III. SECOND AMENDMENT ISSUES United States v. Carter, 750 F.3d 462 (4th Cir. Apr. 30, 2014) (Niemeyer, J.) (S.D. W. Va.) (on appeal from remand after first appeal concerning Second Amendment challenge to 18 U.S.C. 922(g)(3), holding that statute, which prohibits possession of firearms while being an unlawful user of and addicted to a controlled substance, reasonably serves and proportionally advances government s important interest in preventing gun violence) IV. FOURTH AMENDMENT ISSUES Probable Cause (see also Warrants, infra)! United States v. Saafir, 754 F.3d 262 (4th Cir. June 11, 2014) (per curiam) (M.D.N.C.) (holding that police officer s search of defendant s car after traffic stop was unreasonable because probable cause on which search was based was tainted, in that defendant s incriminatory statements giving rise to probable cause were elicited in response to officer s false assertion that he had probable cause to search and his suggestion that he would search car with or without defendant s consent) Warrants! United States v. Hill, 776 F.3d 243 (4th Cir. Jan. 13, 2015) (Diaz, J.) (N.D. W. Va.) (where conditions of supervised release authorized probation officers to visit home and confiscate contraband in plain view, but did not authorize warrantless searches, and law enforcement officers conducted walk-through of home and dog sniff, holding that walk-through and dog sniff were unlawful warrantless searches and that they were not saved by good-faith exception) FDFCDC 79
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 6 Exclusionary Rule United States v. Stephens, 764 F.3d 327 (4th Cir. Aug. 19, 2014) (Shedd, J.; Thacker, J., dissenting) (D. Md.) (where Supreme Court decision issued post-indictment made clear that police search involving warrantless installation of GPS tracker on defendant s vehicle, 24/7 for two months, was illegal, finding that police acted in objectively reasonable reliance on binding pre-decision case law, such that exclusionary rule did not require exclusion of evidence)! United States v. Hill, 776 F.3d 243 (4th Cir. Jan. 13, 2015) (Diaz, J.) (N.D. W. Va.) (where conditions of supervised release authorized probation officers to visit home and confiscate contraband in plain view, but did not authorize warrantless searches, and law enforcement officers conducted walk-through of home and dog sniff, holding that walk-through and dog sniff were unlawful warrantless searches and that they were not saved by good-faith exception; remanding for determination by district court as to whether independent source doctrine saves fruits of search from exclusion) V. FIFTH AMENDMENT ISSUES (Pre-trial and Trial) Competency to Stand Trial United States v. Barefoot, 754 F.3d 226 (4th Cir. June 9, 2014) (King, J.) (E.D.N.C.) (district court did not abuse discretion in concluding, pursuant to Indiana v. Edwards, 554 U.S. 164 (2008), that while defendant was competent to stand trial, he was not competent to represent himself) Due Process! United States v. Blackledge, 751 F.3d 188 (4th Cir. May 5, 2014) (Gregory, J.; Shedd, J., dissenting) (in 4248 civil commitment proceeding, finding district court abused discretion in denying counsel s motions to withdraw based on communications breakdowns and conflict of interest where district failed to engage in adequate inquiry into breakdowns and conflicts; further finding that abuse of discretion was not harmless) Grand Jury / Indictment United States v. Perry, 757 F.3d 166 (4th Cir. July 1, 2014) (Wynn, J.) (D. Md.) (indictment in Social Security and Medicare fraud case in which defendant failed to disclose employment was not unconstitutionally defective where it tracked statutory language, provided specific details of nature of charges and identified event triggering disclosure requirement, and where government provided bill of particulars) Self-Incrimination United States v. Brown, 757 F.3d 183 (4th Cir. July 1, 2014) (King, J.) (D. Md.) (where defendant was given Miranda warnings and waived her rights, rejecting defendant s argument that FDFCDC 80
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 7 her statements to police were involuntarily made because her counsel, who was representing her in connection with one criminal case, was ineffective in failing to accompany her to police station, where she was questioned about uncharged criminal activity) VI. SIXTH AMENDMENT ISSUES (Pre-trial and Trial) Confrontation United States v. Reed, F.3d, 2015 WL 1037601 (4th Cir. Mar. 11, 2015) (Floyd, J.) (E.D. Va.) (in Hobbs Act robbery case in which incriminating evidence included maps based on cell phone data that placed defendant in area of robberies at times they occurred, even assuming there was error in failing to have witnesses testify as to chain of custody of defendant s cell phone (specifically, how it came to be seized), any error was harmless) Counsel! United States v. Blackledge, 751 F.3d 188 (4th Cir. May 5, 2014) (Gregory, J.; Shedd, J., dissenting) (in 4248 civil commitment proceeding, finding district court abused discretion in denying counsel s motions to withdraw where district failed to engage in adequate inquiry) United States v. Barefoot, 754 F.3d 226 (4th Cir. June 9, 2014) (King, J.) (E.D.N.C.) (district court did not abuse discretion in concluding, pursuant to Indiana v. Edwards, 554 U.S. 164 (2008), that while defendant was competent to stand trial, he was not competent to represent himself) Jury! United States v. Ramirez-Castillo, 748 F.3d 205 (4th Cir. Apr. 30, 2014) (Thacker, J.) (D.S.C.) (on plain error review in case where jury made certain specific factual findings on verdict form but form did not require jury to determine generally whether defendant was guilty or not guilty of charged offense and where court in effect directed guilty verdict, finding that violation of defendant s right to have jury find his guilt beyond reasonable doubt was plain error that, as structural error, affected both defendant s substantial rights and the fairness, integrity, and public reputation of judiciary) Venue United States v. Umaña, 750 F.3d 320 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (W.D.N.C.) (on plain error review after trial for murder in aid of racketeering, 18 U.S.C. 1959(a)(1), finding that venue in Western District of North Carolina was proper even though murder occurred in Middle District, because racketeering activity occurred in Western District) FDFCDC 81
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 8 VII. OTHER PRE-TRIAL ISSUES Discovery (Fed. R. Crim. P. 16) United States v. Galloway, 749 F.3d 238 (4th Cir. Apr. 15, 2014) (Niemeyer, J.) (D. Md.) (district court did not abuse discretion in limiting detained pro se defendant to reviewing discovery at courthouse lock-up where court explained that there had been security issues at federal detention facilities and defendant did not seek continuance based on impaired ability to review discovery) Indictment United States v. Perry, 757 F.3d 166 (4th Cir. July 1, 2014) (Wynn, J.) (D. Md.) (indictment in Social Security and Medicare fraud case in which defendant failed to disclose employment was not unconstitutionally defective where it tracked statutory language, provided specific details of nature of charges and identified event triggering disclosure requirement, and where government provided bill of particulars) United States v. Perry, 757 F.3d 166 (4th Cir. July 1, 2014) (Wynn, J.) (D. Md.) (indictment in Social Security and Medicare fraud case in which defendant failed to disclose employment sufficiently alleged intent element of each charged offense) United States v. Perry, 757 F.3d 166 (4th Cir. July 1, 2014) (Wynn, J.) (D. Md.) (indictment filed in March 2012 in Social Security and Medicare fraud case where defendant continually failed to disclose employment over 16-year period going back to 1996 was not time-barred under statute of limitations, 18 U.S.C. 3282; rejecting argument that statute began to run when government knew of or could have discovered defendant s non-disclosure) Motions, In General (Fed. R. Crim. P. 12) United States v. Moore, 769 F.3d 264 (4th Cir. Oct. 10, 2014) (Wilkinson, J.) (D. Md.) (where defendant did not raise Fourth Amendment suppression issue until fourth day of bench trial, immediately before closing arguments, district court properly found that defendant had waived issue) Joinder / Severance (Fed. R. Crim. P. 8, 14) United States v. McLaurin, 764 F.3d 372 (4th Cir. Aug. 22, 2014) (Traxler, J.; Floyd, J., dissenting) (W.D.N.C.) (in case involving conspiracy to commit armed robbery of non-existent stash house in reverse sting, firearms charges against one defendant were logically related to conspiracy charges, such that they were properly joined) Statute of Limitations (18 U.S.C. 3282 et seq.) United States v. Perry, 757 F.3d 166 (4th Cir. July 1, 2014) (Wynn, J.) (D. Md.) (indictment filed in March 2012 in Social Security and Medicare fraud case where defendant continually failed to disclose employment over 16-year period going back to 1996 was not time-barred under statute FDFCDC 82
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 9 of limitations, 18 U.S.C. 3282; rejecting argument that statute began to run when government knew of or could have discovered defendant s non-disclosure) Subpoenas (Fed. R. Crim. P. 17) Under Seal v. United States, 755 F.3d 213 (4th Cir. June 16, 2014) (Thacker, J.) (D. Md.) (on appeal by government, reversing district court s grant of motion by prospective grand jury witness made pursuant to Fed. R. Crim. P. 17(c)(2) to quash subpoena; declining to recognize any parent-child privilege that adult child could assert to avoid testifying against parent before grand jury) Venue (18 U.S.C. 3235 et seq.) United States v. Umaña, 750 F.3d 320 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (W.D.N.C.) (in capital trial for murder in aid of racketeering, 18 U.S.C. 1959(a)(1), venue in Western District of North Carolina was proper even though murder occurred in Middle District, because racketeering activity occurred in Western District) Wiretaps (18 U.S.C. 2518) United States v. Galloway, 749 F.3d 238 (4th Cir. Apr. 15, 2014) (Niemeyer, J.) (D. Md.) (district court did not abuse discretion in authorizing wiretaps where affidavits in support of applications set forth sufficient factual detail and explanation of need for wiretaps) VIII. TRIAL ISSUES 1 Evidence Confrontation See Sixth Amendment, supra Federal Rules of Evidence 401 et seq. United States v. Reed, F.3d, 2015 WL 1037601 (4th Cir. Mar. 11, 2015) (Floyd, J.) (E.D. Va.) (in Hobbs Act robbery trial, cell phone data maps (historical cell-site analysis) were plainly relevant under Fed. R. Evid. 401 to show defendants proximity to scenes of robberies close to time they occurred) United States v. Barefoot, 754 F.3d 226 (4th Cir. June 9, 2014) (King, J.) (E.D.N.C.) (where defense in trial for solicitation of crime of violence (specifically blowing up local courthouse) was that defendant was a nut and braggart, talking about many things that never happened, evidence that 1 Subsections are arranged by stage of trial. FDFCDC 83
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 10 defendant had been involved in a murder was admissible under Fed. R. Evid. 404(b) to show that defendant was devising serious scheme and his intent in soliciting assistance) United States v. McLaurin, 764 F.3d 372 (4th Cir. Aug. 22, 2014) (Traxler, J.) (W.D.N.C.) (where defense in case involving conspiracy to commit armed robbery of non-existent stash house in reverse sting was entrapment, such that government had to prove defendants predisposition to commit offense, evidence that one defendant possessed distinctive firearm eight months earlier and that another defendant had been convicted of common-law robbery was admissible under Fed. R. Evid. 404(b))! United States v. Briley, 770 F.3d 267 (4th Cir. Oct. 22, 2014) (Wilkinson, J.) (E.D. Va.) (in case involving disorderly conduct (sexual conduct in national park) and assault on park police officers, finding error in admission in government s rebuttal case under Fed. R. Evid. 404(b) of defendant s conviction for subsequent disorderly conduct involving nearly identical facts, but finding erroneous admission of evidence to be harmless because evidence on all counts was overwhelming) Federal Rules of Evidence 501 et seq. Under Seal v. United States, 755 F.3d 213 (4th Cir. June 16, 2014) (Thacker, J.) (D. Md.) (on appeal by government, reversing district court s grant of motion by prospective grand jury witness made pursuant to Fed. R. Crim. P. 17(c)(2) to quash subpoena; declining to recognize any parent-child privilege that adult child could assert to avoid testifying against parent before grand jury) Federal Rules of Evidence 701 et seq. United States v. Galloway, 749 F.3d 238 (4th Cir. Apr. 15, 2014) (Niemeyer, J.) (D. Md.) (on plain error review in drug case, finding no error in qualification of DEA special agent and Baltimore police detective who were involved in investigation of defendant as expert witnesses in coded language)! United States v. Garcia, 752 F.3d 382 (4th Cir. May 15, 2014) (Davis, J.) (D. Md.) (in drug case involving large number of wiretapped phone calls, finding that district court did not err in qualifying as an expert an FBI special agent who also testified as a fact witness, but because court did not adequately safeguard against strong likelihood of jury confusion between agent s testimony as fact witness and as expert, because agent did not adequately explain her claimed methodology and how it applied to specific phone calls, and because these errors were not harmless, vacating defendant s convictions and ordering new trial) Federal Rules of Evidence 901 et seq. United States v. Reed, F.3d, 2015 WL 1037601 (4th Cir. Mar. 11, 2015) (Floyd, J.) (E.D. Va.) (district court did not abuse discretion in admitting cell phone data maps (historical cell-site analysis) where government provided sufficient information that phone data could be used to approximate a phone s location and that phone number was associated with particular defendant) FDFCDC 84
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 11 Sufficiency of Evidence See Offenses, supra Jury Instructions United States v. Brown, 757 F.3d 183 (4th Cir. July 1, 2014) (King, J.) (D. Md.) (on plain error review in marijuana distribution conspiracy case in which jury was required to determine quantity triggering applicable mandatory minimum and maximum under Alleyne and Apprendi, finding that although district court s instruction on conversion calculation of pounds to kilos was incorrect, appellate court would not correct error where weight attributable to defendant was far in excess of 1,000 kilos) United States v. McLaurin, 764 F.3d 372 (4th Cir. Aug. 22, 2014) (Traxler, J.) (W.D.N.C.) (in case involving conspiracy to commit robbery of non-existent stash house in reverse sting in which defendants relied at trial on entrapment defense, finding no error in supplemental jury instruction given after jury requested clarification of inducement ) United States v. Cornell, F.3d, 2015 WL 1137153 (4th Cir. Mar. 16, 2015) (Agee, J.) (M.D.N.C.) (because RICO conspiracy does not require proof of overt act, no instruction is required that jury must find commission of specific predicate act(s); jury need find only that defendant(s) agreed to commit types of acts) United States v. Cornell, F.3d, 2015 WL 1137153 (4th Cir. Mar. 16, 2015) (Agee, J.) (M.D.N.C.) (declining to adopt per se rule that district court may not give more than one Allen charge; propriety of second Allen charge to be evaluated in of all circumstances, not through arbitrary rule; finding no coercion of jury from second charge where jury deliberated another three hours after second charge and returned verdict that acquitted some defendants and found that some predictate RICO acts but not others) Conduct of Judge United States v. Brown, 757 F.3d 183 (4th Cir. July 1, 2014) (King, J.) (D. Md.) (absence of judge from courtroom for more than 30 minutes during jury deliberations when jury was viewing playback of video was harmless error) IX. PLEA ISSUES Plea Agreement Provisions * United States v. Barefoot, 754 F.3d 226 (4th Cir. June 9, 2014) (King, J.) (E.D.N.C.) (discussing at some length whether immunity provision in plea agreement from defendant s earlier case precluded his prosecution on certain counts in later case; concluding that prosecution was precluded and vacating convictions) FDFCDC 85
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 12 Entry of Guilty Plea (Fed. R. Crim P. 11)! United States v. Sanya, 774 F.3d 812 (4th Cir. Dec. 17, 2014) (Motz, J.; Wilkinson, J., concurring) (D. Md.) (on plain error review, finding that district court violated Fed. R. Crim. P. 11(c)(1), which prohibits judicial involvement in plea negotiations, where defendant pled guilty to one offense, could not reach agreement with government on new charges, and at detention hearing on new charges, district court expressed strong preference that defendant plead guilty to them so that they could be consolidated for sentencing with original charge) X. SENTENCING ISSUES Constitutional Considerations Sixth Amendment! United States v. Catone, 769 F.3d 866 (4th Cir. Oct. 15, 2014) (Floyd, J.) (W.D.N.C.) (finding Apprendi error in failure to have jury determine dollar amount that increased misdemeanor to felony for conviction for making false statement to obtain employee compensation, in violation of 18 U.S.C. 1920 (and noting circuit split on issue); further finding that error was not harmless) Eighth Amendment * United States v. Cobler, 748 F.3d 570 (4th Cir. Apr. 11, 2014) (Keenan, J.) (W.D. Va.) (120-year (1,440-month) sentence in child pornography production case did not violate Eighth Amendment because it was not disproportionate to severity of crimes) (NB: decision contains extended discussion of Eighth Amendment analysis) United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (80-year (960-month) sentence in child pornography production case did not violate Eighth Amendment; applying Cobler, supra) Sentencing Statutes 18 U.S.C. 924(e), Armed Career Criminal Act (ACCA) United States v. Grant, 753 F.3d 480 (4th Cir. June 3, 2014) (Floyd, J.) (D.S.C.) (convictions resulting from general courts-martial can be used as predicates for ACCA because military courts fall within scope of any court referred to in section 922(g)(1) ) United States v. Mungro, 754 F.3d 267 (4th Cir. June 11, 2014) (Duncan, J.) (W.D.N.C.) (North Carolina offense of breaking or entering, N.C. Gen. Stat. 14-54(a), qualifies as burglary under ACCA) FDFCDC 86
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 13 United States v. Archie, 771 F.3d 217 (4th Cir. Nov. 17, 2014) (Agee, J.) (E.D.N.C.) (in determining mere fact of prior conviction, district court could rely on certified computerized printouts even when they contain inconsistencies and clerical mistakes) 18 U.S.C. 981 et seq., Forfeiture United States v. Louthian, 756 F.3d 295 (4th Cir. June 23, 2014) (King, J.) (W.D. Va.) (in health care billing fraud case in which defendants were rescue squad and individual who served as squad s president and business manager, rejecting individual defendant s argument that he was prejudiced by government s choice to pursue criminal, rather than civil, forfeiture against him because statute mandates criminal forfeiture and proper procedures were followed) 18 U.S.C. 3553, Sentencing! United States v. Lymas, F.3d, 2015 WL 1219553 (4th Cir. Mar. 18, 2015) (Traxler, J.) (E.D.N.C.) (vacating defendants sentences and remanding for resentencing where district court failed to explain its rejection of Guidelines sentence or to offer individualized assessment justifying each defendant s sentence based on particular facts of case) United States v. Spinks, 770 F.3d 285 (4th Cir. Oct. 28, 2014) (Motz, J.; Davis, J., concurring in judgment) (M.D.N.C.) (where district court granted reduction pursuant to 18 U.S.C. 3553(e) for substantial assistance and imposed sentence below otherwise applicable statutory mandatory minimum sentence, court may not base extent of downward departure on any factors other than cooperation; United States v. Hood, 556 F.3d 226 (4th Cir. 2009), has not been abrograted by either United States v. Davis, 679 F.3d 190 (4th Cir. 2012), or Pepper v. United States, 562 U.S. 476 (2011), and thus controls) 18 U.S.C. 3583, Supervised Release United States v. Ward, 770 F.3d 1090 (4th Cir. Nov. 3, 2014) (Keenan, J.) (E.D. Va.) (where defendant committed original offense before, but was convicted and sentenced for that offense and committed supervised release violation after, Congress eliminated mandatory minimum revocation sentence in 18 U.S.C. 3583(e) for supervised release violation based on possession of drugs, Savings Statute (1 U.S.C. 109) preserved mandatory minimum sentence, and court s finding of facts leading to application of mandatory minimum sentence did not violate Sixth Amendment) 18 U.S.C. 3663, 3663A, Restitution! United States v. Ocasio, 750 F.3d 399 (4th Cir. Apr. 29, 2014) (King, J.) (D. Md.) (vacating restitution order where insurance company was not victim of charged Hobbs Act extortion conspiracy but rather of uncharged insurance fraud scheme) United States v. Seignious, 757 F.3d 155 (4th Cir. July 1, 2014) (Hamilton, J.) (D. Md.) (after ordering briefing and oral argument on restitution issue in Anders case, finding on plain error review that although restitution was imposed without observance of statutory procedural safeguards, error FDFCDC 87
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 14 did not affect defendant s substantial rights; further finding on plain error review that amount was plausible in light of record evidence) Sentencing Guidelines U.S.S.G. 1B1.3, Relevant Conduct United States v. McVey, 752 F.3d 606 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (S.D. W. Va.) (finding that only documented distribution of child pornography, which occurred more than two years before possession offense, constituted relevant conduct because it was part of same course of conduct as offense of conviction where defendant had admitted he had distributed images during past ten years and because possession and distribution are tightly connected) United States v. Pineda, 770 F.3d 313 (4th Cir. Oct. 29, 2014) (Niemeyer, J.) (E.D.N.C.) (drugs and gun involved in uncharged transaction that occurred almost two months before offenses of conviction were properly treated as part of same course of conduct where, even though defendant was not actual seller in uncharged transaction, he provided drugs and firearm that were sold to confidential informant with whom defendant later dealt directly in transactions for which defendant was convicted) United States v. Burns, F.3d, 2015 WL 615678 (4th Cir. Feb. 13, 2015) (Duncan, J.) (M.D.N.C.) (because acting with a particular mental state is relevant conduct within meaning of U.S.S.G. 1B1.3(a)(1)(A), district court did not err in refusing to give defendant any reduction for acceptance of responsibility on ground that he falsely denied relevant conduct where defendant pled guilty to being felon in possession of firearm but contested application of cross-reference to attempted murder (specifically challenging whether he had requisite mens rea, not his physical conduct)) (N.B.: the court set case for argument and ordered the parties to address this issue in supplemental briefing shortly after issuing Rule 34 notice)! United States v. Flores-Alvarado, 779 F.2d 250 (4th Cir. Mar. 3, 2015, as amended Mar. 11, 2015) (Traxler, J.) (E.D.N.C.) (in drug conspiracy case where defendant s objections to drug quantity were not mere quibbles over the PSR s drug totals, but were specific and factually grounded enough to raise legal and factual questions about whether the events as described in the PSR supported attributing the seized quantities to defendant, district court erred in not resolving disputed issue and in not making particularized factual findings necessary to attribute contested quantities to defendant as both reasonably foreseeable to him and within scope of his agreement to jointly undertake criminal activity) U.S.S.G. 2B1.1, Fraud United States v. Weiss, 754 F.3d 207 (4th Cir. June 6, 2014) (Hamilton, J.) (M.D.N.C.) (district court did not err in including in loss calculation as reasonably foreseeable pecuniary harm the amount of personal federal income tax that defendant owed on illegal gains from several fraud schemes when he deliberately failed to report gains as income on returns) FDFCDC 88
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 15! United States v. Adepoju, 756 F.3d 250 (4th Cir. June 23, 2014) (Gregory, J.) (D. Md.) (finding application of U.S.S.G. 2B1.1(b)(10) to be in error where evidence did not affirmatively demonstrate use of sophisticated means in attempt to commit bank fraud; district court erred in shifting burden to defendant to disprove sophistication)! United States v. Catone, 769 F.3d 866 (4th Cir. Oct. 15, 2014) (Floyd, J.) (W.D.N.C.) (in government benefits case under 18 U.S.C. 1920, vacating sentence where district court failed to apply required analysis for determining loss amount, and because there was no evidence in trial or sentencing record to support any loss amount, remanding for resentencing with no enhancement for loss) U.S.S.G. 2C1.1 et seq., Offenses Involving Public Officials United States v. Dodd, 770 F.3d 306 (4th Cir. Oct. 29, 2014) (Duncan, J.) (E.D.N.C.) (where defendant bribed private correction officers at BOP contract facility (CI Rivers), ruling that a corrections officer holds sensitive positions such that 4-level enhancement under U.S.S.G. 2C1.1(b)(3) was properly applied) U.S.S.G. 2G2.1 et seq., Child Pornography United States v. Cobler, 748 F.3d 570 (4th Cir. Apr. 11, 2014) (Keenan, J.) (W.D. Va.) (1,440-month (120-year) within-range sentence in child pornography production and possession case was procedurally and substantively reasonable) United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (960-month (80-year) sentence in child pornography production case did not violate Eighth Amendment) United States v. McVey, 752 F.3d 606 (4th Cir. Apr. 23, 2014) (Niemeyer, J.) (S.D. W. Va.) (for purposes of U.S.S.G. 2G2.2(b)(3)(F), finding that only documented distribution of child pornography, which occurred more than two years before possession offense, constituted relevant conduct because it was part of same course of conduct as offense of conviction where defendant had admitted he had distributed images during past ten years and because possession and distribution are tightly connected) United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (there is no impermissible double-counting in application of both U.S.S.G. 2G2.2(b)(5) and 4B1.5(b)(1) for pattern of activity involving sexual activity with minors)! United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (district court erred in applying upward adjustment for vulnerable victim pursuant to U.S.S.G. 3A1.1(b)(1) based upon age-related cognitive development and psychological vulnerability of one victim, because these factors are already incorporated into upward adjustment for victim age pursuant to U.S.S.G. 2G2.1(b)(1) and 2G2.2(b)(2)) FDFCDC 89
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 16 U.S.S.G. 2K1.4, Arson United States v. White, 771 F.3d 225 (4th Cir. Nov. 17, 2014) (Traxler, J.) (S.D. W. Va.) (application of increased base offense level for arson of dwelling was not clearly erroneous where duplex apartment building had been vacant at most for two weeks before fire) U.S.S.G. 2K2.1 et seq., Firearms Offenses! United States v. Martin, 753 F.3d 485 (4th Cir. June 5, 2014) (Traxler, J.; O Grady, D.J., dissenting) (D. Md.) (Maryland conviction for fourth-degree burglary is not crime of violence as defined in U.S.S.G. 4B1.2 for purposes of firearms guideline s base offense level because offense does not involve force as an element, does not meet generic definition of burglary, and does not satisfy similar in kind requirement of residual clause of crime of violence definition) United States v. Barefoot, 754 F.3d 226 (4th Cir. June 9, 2014) (King, J.) (E.D.N.C.) (district court did not clearly err in treating as a unitary whole the course of conduct giving rise firearms offenses that were subject of two counts of conviction and conduct giving rise to explosives that were subject of two other counts) United States v. Pineda, 770 F.3d 313 (4th Cir. Oct. 29, 2014) (Niemeyer, J.) (E.D.N.C.) (district court did not impermissibly doublecount firearm that was subject of 924(c) conviction in applying enhancement based on number of firearms (U.S.S.G. 2K2.1(b)(1)), not their use (see 2K2.1(b)(6)(B), 2K2.1(c)) United States v. Pineda, 770 F.3d 313 (4th Cir. Oct. 29, 2014) (Niemeyer, J.) (E.D.N.C.) (enhancement in U.S.S.G. 2K2.1(b)(5) for trafficking firearms is not limited to single transaction involving multiple firearms but may apply to multiple transactions involving single firearms) U.S.S.G. 2L1.2, Illegal Reentry After Removal! United States v. Henriquez, 757 F.3d 144 (June 27, 2014) (Wynn, J.; Motz, J., dissenting) (D. Md.) (Maryland first-degree burglary is not crime of violence for purposes of illegal re-entry guideline s 16-level bump because Maryland courts have construed statute more broadly than Supreme Court s definition of generic burglary) United States v. Avila, 770 F.3d 1100 (4th Cir. Nov. 4, 2014) (Agee, J.) (W.D.N.C.) (California s first-degree burglary is crime of violence under 18 U.S.C. 16(b) for purposes of 8 U.S.C. 1101(a)(43)(F) (definition of crime of violence for aggravated felony ) and illegal reentry s guideline s 8-level bump for aggravated felony ) (N.B.: decision notes that conviction did not qualify as burglary under 1101(a)(43)(G) because California offense is defined more broadly than generic offense, and while not noted in decision, conviction did not qualify for 16-level bump for crime of violence because definition of term for that enhancement does not include residual clause language that is present in 16(b)) FDFCDC 90
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 17! * Omargharib v. Holder, 775 F.3d 192 (4th Cir. Dec. 23, 2014) (Floyd, J.; Niemeyer, J., concurring) (BIA) (Virginia s grand larceny offense is indivisible as matter of law under Fourth Circuit cases construing Descamps and is not theft offense constituting aggravated felony because it includes fraudulent conduct; concurrence discusses elements-versus-means distinction adopted in Descamps)! Castillo v. Holder, 776 F.3d 262 (4th Cir. Jan. 14, 2015) (Keenan, J.) (BIA) (Virginia s unauthorized use of motor vehicle offense is not theft offense constituting aggravated felony ) Espinal-Andrades v. Holder, 777 F.3d 163 (Jan. 22, 2015) (Wynn, J.) (BIA) (Maryland offense of arson qualifies as aggravated felony ) United States v. Valdovinos, 760 F.3d 322 (4th Cir. July 25, 2014) (Motz, J.; Davis, J., dissenting) (W.D.N.C.) (in determining whether offense giving rise to prior conviction was punishable by more than one year, it is statutory penalty, not parties plea agreement as to sentencing range, even where that range binds court, that controls determination) U.S.S.G. 3A1.1 et seq., Victim-Related Adjustments United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (in child pornography production case, district court erred in applying upward adjustment for vulnerable victim pursuant to U.S.S.G. 3A1.1(b)(1) based upon age-related cognitive development and psychological vulnerability of one victim because these factors are already incorporated into upward adjustment for victim age pursuant to U.S.S.G. 2G2.1(b)(1) and 2G2.2(b)(2)) U.S.S.G. 3B1.1 et seq., Role Adjustments United States v. Weiss, 754 F.3d 207 (4th Cir. June 6, 2014) (Hamilton, J.) (M.D.N.C.) (in employment tax fraud case in which defendant held himself out as CPA when he was not in order to obtain business clients, upholding application of enhancement for abuse of position of trust under U.S.S.G. 3B1.3) United States v. Gomez-Jiminez, 750 F.3d 370 (4th Cir. Apr. 24, 2014) (Agee, J.; Gregory, J., dissenting) (E.D.N.C.) (affirming application of U.S.S.G. 3B1.4 (use of a minor) as to one defendant who had his minor son live in a trailer leased by defendant that served as a drug stash house and gave son money to make rent payments) U.S.S.G. 3E1.1, Acceptance of Responsibility United States v. Burns, F.3d, 2015 WL 615678 (4th Cir. Feb. 13, 2015) (Duncan, J.) (M.D.N.C.) (where defendant pled guilty to being felon in possession of firearm but contested application of cross-reference to attempted murder (specifically challenging whether he had requisite mens rea, not his physical conduct), district court did not err in refusing to give defendant any reduction for acceptance of responsibility on ground that he falsely denied relevant conduct; ruling FDFCDC 91
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 18 that acting with a particular mental state is relevant conduct within meaning of U.S.S.G. 1B1.3(a)(1)(A)) (N.B.: the court set case for argument and ordered the parties to address this issue in supplemental briefing shortly after issuing Rule 34 notice) U.S.S.G. 4A1.1 et seq., Criminal History United States v. Valdovinos, 760 F.3d 322 (4th Cir. July 25, 2014) (Motz, J.; Davis, J., dissenting) (W.D.N.C.) (in determining whether offense giving rise to prior conviction was punishable by more than one year, it is statutory penalty, not parties plea agreement as to sentencing range, even where that range binds court, that controls determination)! United States v. McLaurin, 764 F.3d 372 (4th Cir. Aug. 22, 2014) (Traxler, J.) (W.D.N.C.) (finding plain error in assessment of criminal history points for convictions for offenses committed when defendant was a juvenile, and finding non-speculative basis that district court would have imposed lower sentence but for error, such that defendant s substantial rights were affected) U.S.S.G. 4B1.1 et seq., Career Offenders and Other Recidivists! United States v. Martin, 753 F.3d 485 (4th Cir. June 5, 2014) (Traxler, J.; O Grady, D.J., dissenting) (D. Md.) (Maryland conviction for fourth-degree burglary is not crime of violence as defined in U.S.S.G. 4B1.2 for purposes of firearms guideline s base offense level because offense does not involve force as an element, does not meet generic definition of burglary, and does not satisfy similar in kind requirement of residual clause of crime of violence definition) United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (there is no impermissible double-counting in application of both U.S.S.G. 2G2.2(b)(5) and 4B1.5(b)(1) for pattern of activity involving sexual activity with minors)! United States v. Howard, 773 F.3d 519 (4th Cir. Dec. 4, 2014) (Davis, J.) (E.D.N.C.) (following supplemental briefing ordered by court, finding life sentence resulting from upward criminal history departure from 120-121 months (plus 60 months consecutive for 924(c) conviction) to high end of de facto career offender range (360 months to life imprisonment, based on prior convictions too old to count) to be substantively unreasonable given facts of case and defendant s history) U.S.S.G. 5D1.1 et seq., Imposition of Supervised Release! United States v. Collins, 773 F.3d 25 (4th Cir. Dec. 8, 2014) (Floyd, J.) (S.D. W. Va.) (because failure to register as a sex offender under SORNA, 18 U.S.C. 2250, is not sex offense for purposes of U.S.S.G. 5D1.2(b)(2), term of supervised release is simply statutory mandatory minimum term of 5 years, not 5 years to life, although district court may impose longer term as upward variance) FDFCDC 92
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 19 United States v. Price, 777 F.3d 700 (4th Cir. Feb. 3, 2015) (King, J.) (D.S.C.) (applying Collins, supra, to find plain error in imposition of life term of supervised release in SORNA failureto-register case) U.S.S.G. 6A1.3, Resolution of Disputed Factors! United States v. Flores-Alvarado, 779 F.3d 250 (4th Cir. Mar. 3, 2015, amended Mar. 11, 2015) (Traxler, J.) (E.D.N.C.) (in drug conspiracy case where defendant s objections to drug quantity were not mere quibbles over the PSR s drug totals, but were specific and factually grounded enough to raise legal and factual questions about whether the events as described in the PSR supported attributing the seized quantities to defendant, district court erred in not resolving disputed issue and in not making factual findings necessary to attribute contested quantities to defendant) Expert Assistance United States v. Weiss, 754 F.3d 207 (4th Cir. June 6, 2014) (Hamilton, J.) (M.D.N.C.) (on plain error review, district court did not abuse discretion by failing sua sponte to appoint any experts to assist defendant at sentencing in case involving several complicated fraud schemes) Reasonableness of Sentence! United States v. Lymas, F.3d, 2015 WL 1219553 (4th Cir. Mar. 18, 2015) (Traxler, J.) (E.D.N.C.) (vacating defendants sentences as procedurally unreasonable and remanding for resentencing where district court failed to explain its rejection of Guidelines sentence or to offer individualized assessment justifying each defendant s sentence based on particular facts of case) United States v. Cobler, 748 F.3d 570 (4th Cir. Apr. 11, 2014) (Keenan, J.) (W.D. Va.) (1,440 month (120-year) within-range sentence in child pornography production and possession case was procedurally and substantively reasonable) United States v. Dowell, 771 F.3d 162 (4th Cir. Nov. 13, 2014) (Grimm, D.J.) (W.D. Va.) (960-month (80-year) within-range sentence in child pornography production case was substantively reasonable)! United States v. Howard, 773 F.3d 519 (4th Cir. Dec. 4, 2014) (Davis, J.) (E.D.N.C.) (following supplemental briefing ordered by court, finding life sentence resulting from upward criminal history departure from 120-121 months (plus 60 months consecutive for 924(c) conviction) to high end of de facto career offender range (360 months to life imprisonment, based on prior convictions too old to count) to be substantively unreasonable given facts of case and defendant s history) FDFCDC 93
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 20 XI. REVOCATION ISSUES Revocation! United States v. Ferguson, 752 F.3d 613 (4th Cir. May 21, 2014) (Gregory, J.) (E.D. Va.) (vacating district court s finding that defendant possessed marijuana where court relied on barebones lab report prepared by forensic examiner who did not testify at revocation hearing, see Fed. R. Crim. P. 32.1(b)(2)(C), such that defendant could not cross-examine witness; chastising government for its barefaced failure to abide by our command in United States v. Doswell, 670 F.3d 526 (4th Cir. 2012), which requires court to balance defendant s interest in confronting witness against any good cause proffered by government for not calling witness) Sentencing United States v. Ward, 770 F.3d 1090 (4th Cir. Nov. 3, 2014) (Keenan, J.) (E.D. Va.) (where defendant committed original offense before, but was convicted and sentenced for that offense and committed supervised release violation after, Congress eliminated mandatory minimum revocation sentence in 18 U.S.C. 3583(e) for supervised release violation based on possession of drugs, Savings Statute (1 U.S.C. 109) preserved mandatory minimum sentence, and court s finding of facts leading to application of mandatory minimum sentence did not violate Sixth Amendment) * United States v. Lemon, 777 F.3d 170 (4th Cir. Jan. 23, 2015) (Motz, J.) (D.S.C.) (on plain error review in Anders case in which court requested briefing on possible Tapia/Bennett error (whether district court improperly considered defendant s need for rehabilitative mental health treatment to determine length of sentence); using case to discuss when there is or is not such error) XII. APPELLATE ISSUES Reviewability of Issues United States v. Modanlo, 762 F.3d 403 (4th Cir. Aug. 7, 2014) (King, J.) (D. Md.) (dismissing appeals because filing of notices of appeal in middle of trial from denial of motion to dismiss one count and from denial of motion to sever same count does not confer jurisdiction on appellate court over merits of underlying rulings) United States v. Archie, 771 F.3d 217 (4th Cir. Nov. 17, 2014) (Agee, J.) (E.D.N.C.) (change in law after sentencing does not void appeal waiver; thus defendant s valid appeal waiver precluded Alleyne challenge to 924(c) sentence) FDFCDC 94
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 21 Standards of Review Harmless Error Review United States v. Gomez-Jiminez, 750 F.3d 370 (4th Cir. Apr. 24, 2014) (Agee, J.; Gregory, J., dissenting) (E.D.N.C.) (rejecting argument that assumed error harmlessness inquiry should apply only where sentence imposed lies above challenged guideline range and applying it where sentence imposed fell within range) United States v. Ferguson, 752 F.3d 613 (4th Cir. May 21, 2014) (Gregory, J.; Keenan, J., dissenting) (E.D. Va.) (discussing type of harmless error analysis (i.e., constitutional or nonconstitutional) that applies to violation of Fed. R. Crim. P. 32.1(b)(2)(C) where government failed to establish good cause for not calling witness) Procedural Issues United States v. Sanya, 774 F.3d 812 (4th Cir. Dec. 17, 2014) (Motz, J.) (D. Md.) (chastising government for excessive use of Fed. R. App. 28(j) letters to address supplemental authorities five in three-week period four of which exceeded 350-word limit, and one of which exceeded 1,000 words) XIII. POST-CONVICTION ISSUES United States v. Whiteside, 775 F.3d 180 (4th Cir. Dec. 19, 2014) (en banc) (Wilkinson, J.; Gregory & Davis, JJ., dissenting; Wynn, J., dissenting) (W.D.N.C.) (federal inmate cannot use 2255 motion to challenge sentence based on career offender designation where subsequent case law reveals that enhancement does not apply to him because subsequent decision does not qualify as new fact for purposes of statute of limitations, and defendant not entitled to equitable tolling of statute on ground that timely filing was prevented by unfavorable precedent) United States v. Hairston, 754 F.3d 258 (4th Cir. June 11, 2014) (Davis, J.) (W.D.N.C.) (defendant s numerically second 2255 motion is not a second or successive motion requiring certification by court of appeals where basis for claim presented in it (here, vacutur of prior conviction used to increase criminal history category) did not arise until after denial of first motion) United States v. Jones, 758 F.3d 579 (4th Cir. July 14, 2014) (Niemeyer, J.; King, J., dissenting in part and concurring in judgment) (E.D.N.C.) (where defendant filed numerically second 2255 motion to vacate sentence based on vacutur of two state convictions used to increase criminal history category, but did not do so until several years after receiving notice of vacatur, holding that actual innocence exception to statute of limitations does not apply to non-capital sentencing decisions) United States v. Mills, 773 F.3d 563 (4th Cir. Dec. 8, 2014) (Motz, J.; Floyd, J., dissenting in part and concurring in result) (E.D.N.C.) (because district court may grant certificate of actual FDFCDC 95
Fourth Circuit Decisions on Criminal Law and Procedure, April 1, 2014, through March 31, 2015 Page 22 innocence pursuant to 28 U.S.C. 2513 only in those rare cases in which it finds a previously convicted defendant to be truly innocent, court did not abuse discretion in denying certificate in case in which defendant had felon-in-possession conviction vacated in 28 U.S.C. 2241 proceeding in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc)) FDFCDC 96
CASE BUDGETING IN THE FOURTH CIRCUIT Larry M. Dash NOTES FDFCDC 97
3/30/2015 CASE BUDGETING Eastern & Western Districts of Virginia April 10, 2015 By Larry M. Dash 3/30/2015 1 WHAT ARE MY RESPONSIBILITIES Case Budgeting Training and Education Excess Voucher Review 3/30/2015 2 WHAT CASES DO WE BUDGET Capital Prosecutions Mega Cases Capital Habeas/Appeals 3/30/2015 3 FDFCDC 98 1
3/30/2015 WHAT IS A MEGA CASE? More than 300 Attorney hours More than $38,000.00 overall (includes service providers) 3/30/2015 4 WHAT KINDS OF CASES MAY QUALIFY AS MEGA CASES? RICO Multi-Defendant Capital Large Fraud Cases Wiretap Cases Large Discovery Cases 3/30/2015 5 WHAT KINDS OF CASES MAY QUALIFY AS MEGA CASES? CON T Non-English Speaking Clients (Unusual Languages) Mental Health Clients Gang Cases Large Drug Trafficking Cases Terrorism/Classified Cases 3/30/2015 6 FDFCDC 99 2
3/30/2015 WHAT KINDS OF CASES MAY QUALIFY AS MEGA CASES? CON T Cases Destined for Trial longer than about a week Cases you believe you will request interim payments 3/30/2015 7 WHY DO CASE BUDGETING Is a tool to help you get the services and resources you need without duplication of effort in multi-defendant cases Is a tool to insure timely payments for you and your service providers (interim payments) 3/30/2015 8 CASE BUDGETING ATTORNEYS FOLLOW RULE # 1 Case Budgeting Should Not Reduce or Degrade the Quality Of Representation Which The Circuit Has Grown To Expect From Its Panel Members 3/30/2015 9 FDFCDC 100 3
3/30/2015 I THINK I HAVE A MEGA CASE- NOW WHAT? DO NOT Spend Hundreds Of Hours On The Case Before Calling The Case Budgeting Attorney Get The Budget Forms Meet With Co-Counsel 3/30/2015 10 Copy of Non-Capital-Mega-Case-Budgeting-Worksheets.xls 3/30/2015 11 WHAT CAN I DO Shop around for Service Providers Negotiate A Lower Rate, if appropriate Use The One Step At A Time Approach 3/30/2015 12 FDFCDC 101 4
3/30/2015 WHAT ELSE? Contact The National Litigation Support Administrator Sean Broderick And Kelly Scribner 510-637-3500 Talk To Counsel For Co-Defendants 3/30/2015 13 NEXT Think About The Case Look For Ways To Share Resources And Work You Might Not Have To Do Everything Yourself! Prepare Budget In Consultation With CBA How Many Hours Per Week Will I Be Spending On This Case? Is This Necessary? 3/30/2015 14 CONTINUED File The Motion/Memorandum To Approve Budget File it Ex Parte And Under Seal 3/30/2015 15 FDFCDC 102 5
3/30/2015 BLOW YOUR OWN HORN The Memorandum Is Your Chance To Tell The Judge How Cost Conscious You Are Explain How You Are Sharing Resources Explain That You Negotiated A Lower Rate Or A Travel Rate Explain How You Are Saving Money Help Develop A Reputation As A Fiscally Responsible Attorney 3/30/2015 16 ASK THE JUDGE FOR HELP Ask For Definite Discovery Cut-Off Dates Ask The Judge To Order Pinpoint Discovery Ask The Judge To Order That Discovery Be Turned Over In A Usable Format Ask The Judge To Order The AUSA To Prepare The Transcripts Of Audios 3/30/2015 17 ADVANTAGES TO BUDGETING It Is Always Better To Get Prior Approval Than To Beg For Money After The Fact The Excel Form Does Your Math For You You Might Find That Organizing Your Case For Budgeting Saves You Time You Get Paid For Budget Preparation 3/30/2015 18 FDFCDC 103 6
3/30/2015 TRAVEL Contact your Court for approval NATIONAL TRAVEL SERVICE (NTS) 800-445-0668 Go to www.gsa.gov for per diem rates 3/30/2015 19 JUST REMEMBER It Is Not Rocket Science 3/30/2015 20 NON-BUDGETED CASES, SAME PRINCIPLES APPLY You Can Be Cost-Conscious On A Smaller Case Also In Every Multi-Defendant Case You Should See If Expert, Service Providers Or Attorney Work Can Be Shared Even If You Need An Expert For 50 Hours Instead Of 300, You Can Still Try To Negotiate A Lower rate Or A Travel Rate 3/30/2015 21 FDFCDC 104 7
3/30/2015 TIPS FOR YOUR VOUCHERS You did the work, now tell us what you did Give a few details Be willing to include your extra work in the memo If within budget, probably don t need as much detail Don t use cryptic abbreviations that no one but you knows Type it or use the worksheets in your district (Excel does the math for you) Keep time contemporaneously 3/30/2015 22 TIPS FOR YOUR VOUCHERS CON T Do not necessarily need certified interpreter for jail visits Consider use of paralegal for first review of discovery Consider asking for a Coordinating Discovery Attorney or highly skilled paralegal Talk to co-counsel and consider sharing resources Merely Reading a NEF does not necessarily mean.1 every time 3/30/2015 23 CALL ME Larry Dash 804-916-2177 Larry_Dash@ca4.uscourts.gov 3/30/2015 24 FDFCDC 105 8
INDICATORS OF A POSSIBLE MEGA-CASE 1. Large discovery cases 2. Complex cases/national Security cases/classified cases 3. Large multiple defendant cases 4. Cases where the participants are non-english speakers, especially where the language spoken is exotic or unusual 5. Cases where a defendant has mental health issues 6. Large indictments with multiple counts 7. Indictments where terrorism is alleged 8. Securities or other major fraud indictments 9. Wiretap cases especially where foreign languages are involved 10. RICO cases 11. Organized crime cases 12. Drug trafficking/drug kingpin cases 13. Gang cases 14. Any case where a plea appears out of the question because of such factors as immigration status or deportation consequences 15. Any case which appears, from an early stage, destined for trial FDFCDC 106
FDFCDC 107 MEGA CASE -- CASE MANGEMENT AND BUDGET FORMS (Include Costs Already Authorized and/or Incurred) (Excludes Travel Time) Case Number: Case Name: Lead Counsel: Insert Lead Atty Rate: Insert Associate Rate: For time incurred (please choose): Up to trial Trial and sentencing Activities Arraignment and/or Plea (15a) Bail and Detention Hearings (15b) Motion Hearings (15c) Trial (15d) Sentencing Hearings (15e) Revocation Hearings (15f) Appeals Court (15g) Other (15h) Interviews and Conferences (16a) Obtaining and Reviewing Records (16b) Legal Research and Brief Writing (16c) Investigative and Other Work (16e) Prepare Budget (and Amendments) (16e) Hours for Lead Counsel Hours for Associate Total Cost Proposed Approved Proposed Approved Proposed Approved - - - - - - - - - - - - - - - - - - - - - - - - - - Totals - - - - - - Total (non-travel) expenses incurred and/or anticipated for this phase (e.g. copying, postage, telephone/fax): Proposed: Approved: Total Proposed Budget: $ - Total Approved Budget: $ - Stage 1 Time Budget
FDFCDC 108 MEGA CASE CASE MANAGEMENT AND BUDGET FORM--TRAVEL ONLY Case Number: Case Name: Lead Counsel: Hours Required for Travel (16d) Proposed Approved Travel Expense (hotel, airfare, transportation, etc.) Total Travel Cost Activities Description and Purpose of Travel Lead Assoc. Lead Assoc. Proposed Approved Proposed Approved Arraignment and/or Plea - - Bail and Detention Hearings - - Motion Trials - - Trial - - Sentencing Hearings - - Revocation Hearings - - Appeals Court - - Other - - Interviews and Conferences - - Obtaining and Reviewing Records - - Legal Research and Brief Writing - - Investigative and Other Work - - Prepare Budgets (and Amendments) - - TOTALS - - - - - - - - Stage 1 Travel Budget
FDFCDC 109 MEGA CASE INVESTIGATORS, EXPERTS & OTHER SERVICES REQUEST FORM & BUDGET Case Number: Case Name: Lead Counsel: Hourly Rate Number of Hours # of Travel Hours Travel Expenses Total Budget Expert Type Name of Expert Proposed Approved Proposed Approved Proposed Approved Proposed Approved Proposed Approved - - - - - - - - Expert/Investigators
FDFCDC 110 CAPITAL PROSECUTION -- CASE MANAGEMENT AND BUDGET FORMS (Includes Costs Already Authorized and/or Incurred) (Excludes Travel Time) Case Number: For time incurred (please choose one): Up to authorization Case Name: Authorization to trial Lead Counsel: Trial and sentencing Insert Lead Atty Rate: Insert Assoc. A Rate: Insert Co-counsel Rate: Insert Assoc. B Rate: Lead counsel hours 2nd/Co-counsel hours Associate A hours Associate B hours Total Cost Activities Proposed Approved Proposed Approved Proposed Approved Proposed Approved Proposed Approved In Court Hearings [15a] - - Interviews and Conferences with Client [15b] - - Witnesses Interviews [15c] - - Consultation with Investigators, Experts & Other Services [15d] - - Obtaining & Reviewing the Court Record [15e] - - Obtaining & Reviewing Documents and Evidence [15f] - - Consulting with Counsel [15g] - - Legal Research and Writing [15h] - - Prepare Budget (and Amendments) [15j] - - Other Activity [15j] - - - - - - - - - - - - Total miscellaneous non-travel expenses incurred and/or anticipated for this phase (e.g. copying, postage, telephone/fax): Proposed: Approved: Total Proposed Stage 1 Budget: $ - Total Approved Stage 1 Budget: $ - Stage 1 Time Budget
CAPITAL PROSECUTION CASE MANAGEMENT AND BUDGET FORMS--TRAVEL ONLY Case Number: Case Name: Lead Counsel: Hours Required for Travel (voucher category 15i) Lead counsel 2nd/Co-counsel Associate A Associate B Travel Expenses Total Travel Cost Activities Description and Purpose of Travel Proposed Approved Proposed Approved Proposed Approved Proposed Approved Proposed Approved Proposed Approved FDFCDC 111 In Court Hearings - - Interviews and Conferences with Client - - Witness Interviews - - Investigators, Experts and Other Services - - Obtaining & Reviewing the Court Record - - Obtaining & Reviewing Documents and Evidence - - Consulting with Counsel - - Legal Research and Writing - - Prepare Budget (and Amendments) - - Other Activities - - Total - - - - - - - - - - - - Stage 1 Travel Budget
FDFCDC 112 CASE MANAGEMENT AND BUDGET FORMS INVESTIGATORS, EXPERTS & OTHER SERVICES REQUEST FORM & BUDGET Case Number: Case Name: Lead Counsel: Hourly Rate Number of Hours # of Travel Hours Travel Expenses Total Budget Expert Type Name of Expert Proposed Approved Proposed Approved Proposed Approved Proposed Approved Proposed Approved TOTALS - - - - - - - - Expert/Investigators
FDFCDC 113
FDFCDC 114
FDFCDC 115
Attachment 2 Engagement Letter for Service Providers 1 Require counsel in CJA mega cases to use written retainer agreements for investigators, experts, and other service providers setting forth details of their engagement, including the hourly rate, the approved number of hours, and contemporaneous time record requirements. Federal defender organizations are required by procurement regulations to use written engagement letters when retaining experts and service providers. Likewise, panel attorneys in 2 mega cases should use written engagement letters/agreements when they engage an investigator, 3 expert, or other service provider (service provider) who will be compensated with CJA funds. This initiative would ensure that service providers have a clear understanding of: (1) their hourly rate of compensation, (2) the maximum number of hours or amount of compensation approved by the court, (3) the scope of the work for which they are engaged, and (4) other appropriate billing practices. Specifically, the engagement letter should include language pertaining to the possible reduced hourly rate for travel, as provided in Attachment 3. In an effort to decrease instances when service providers, without prior approval, exceed an authorized limit (total hours or total compensation) established by the court, the engagement letter should also include language indicating that the service provider should not exceed the maximum number of authorized hours or dollar amount without prior written authorization from counsel and the approval of the court. The letter should explain that the service provider s voucher must be based on contemporaneous time records. An exception to requiring the use of written engagement letters in CJA panel attorney mega cases would be permissible if the total compensation for the individual service provider is below the CJA dollar threshold requiring prior authorization for service providers (currently $800, see CJA Guidelines 310.20.30). 1 A CJA panel attorney mega case refers to a representation that qualifies for case budgeting under sections 640 and 230.26 of the Guidelines for Administering the CJA and Related Statutes (CJA Guidelines), Guide to Judiciary Policy, Vol. 7, Part A: (a) all capital representations and (b) non-capital representations that appear likely to become or have become extraordinary in terms of potential cost (i.e., attorney hours are expected to exceed 300 or total expenditures are expected to exceed $30,000 for appointed counsel and services other than counsel). writing. 2 The terms of the engagement may be set forth in a letter, memorandum, or other form of 3 Written engagement letters should also be utilized by retained counsel when they seek to use CJA funds to engage a service provider. See CJA Guidelines 310.10.20. FDFCDC 116
Attachment 2 Page 2 To assist counsel, sample engagement letter language is included as part of this attachment. In an effort to assist judges and CJA voucher reviewers, an Expert and Service Provider Time Worksheet, which could be used by service providers when submitting compensation vouchers, is also included. The worksheet sets forth an itemized description of the work completed, categories to enter the number of hours for that work, and subtotals and totals for each column. The worksheet will be posted soon on the JNet and www.fd.org in automated formats. FDFCDC 117
Sample Engagement Letter: Contents of Financial Arrangements Case name: Case number: The engagement of your services for this case is subject to the following: (1) You will be compensated at a rate of $ per hour [or specify some other fee arrangement], and [$ per hour for long-distance travel-related time that will be explained in correspondence to you]. The maximum payment amount authorized by the court as of this date for your services is $, which includes any expenses incurred by you. (2) You will submit your voucher(s) (CJA Form 21 in a non-capital representation and CJA Form 31 in a capital representation) to me, and it is my responsibility as counsel to certify to the court that the services were rendered. Payment for your services is subject to approval by the presiding judge and, in certain circumstances, the chief judge of the court of appeals. Approved payments are made by the Department of the Treasury out of the federal judiciary s Defender Services account, not by me or my law firm. (3) The presiding judge (and the circuit chief judge, if applicable) has discretion to reduce a voucher. Specific reasons include: (a) a mathematical error; (b) non-compliance with the Guidelines for Administering the CJA and Related Statutes (CJA Guidelines), Guide to Judiciary Policy, Volume 7, Part A, or court policies; and (c) a determination that the services claimed are unreasonable either in terms of the work performed or the amount of time and expenses submitted. Accordingly, this Engagement Letter is not a guarantee of payment for all services rendered or expenses incurred. (4) Do not perform services or incur expenses that would result in an invoice in excess of the maximum payment amount authorized by the court (as set forth in paragraph (1)). Doing so creates a risk that the court will not authorize the payment for the work done or expenses incurred in excess of the maximum authorized amount, even if the services performed or expenses incurred are necessary. You must advise me before you exceed the court s maximum authorized payment amount, and if I determine such additional work and/or expenses are necessary for the representation, I will seek approval from the court for a new maximum authorization level, before such work is performed or expenses incurred. (5) Travel expenses will be reimbursed on the basis of actual expenses incurred. Please consult with me regarding the maximum reimbursement amounts for travel expenses. Airline travel must be authorized by the court by my application. If airline travel is authorized, I will provide guidance to you regarding the purchase of a ticket. FDFCDC 118
Sample Engagement Letter Page 2 (6) Record Keeping Consistent with CJA Guidelines 320.90, you are required to maintain contemporaneous time and attendance records for all work/services billed, including work performed by associates, partners, and support staff, as well as expense records. These records should be submitted with your CJA voucher for payment, and must be retained for three years after approval of the appointed counsel s or the service provider s final voucher, whichever is later. (7) Unless otherwise authorized by the court, a voucher for services performed and expenses incurred for the representation will be submitted at the conclusion of your services. While the court attempts to process invoices as quickly as possible, there may be delays in payment due to workload and other factors. (8) Scope of Work You are authorized to do the following work:. Accepted by: Date: 2 FDFCDC 119
Expert and Service Provider Time Worksheet in Mega Cases (02/14) PAGE TOTAL (HOURS) 0 0 0 0 0 0 0 0 Research, Writing, & Records Analysis Name Date Submitted Page of Travel Time Other Case Name: Case Number: DESCRIPTION OF WORK HOURS Date Brief Description of Services Confer with Counsel, Client, Team Members, or Other (please specify in previous column) Obtaining Records and Reports Reading File, Records, and Reports Investigative Work and Interviews FDFCDC 120 GRAND TOTAL (HOURS) I hereby certify that this worksheet is for services rendered and is correct.
INTERPRETING OPIOID OVERDOSE DEATH: A MEDICAL TOXICOLOGIST S PERSPECTIVE Edward W. Boyer NOTES FDFCDC 121
REVIEW ARTICLE Recommendations for the Investigation, Diagnosis, and Gregory G. Davis MD MSPH ' 'gdavis@uab.edu. Acad'Forensic'Pathol' "2013" Academic"Forensic"Pathology"Inc. ''The'American'College'of'Medical'Toxicology'and'the'National'Association'of' Medical'Examiners'convened'an'expert'panel'to'generate'evidence@based'recommendations' for'the'practice'of'death'investigation'and'autopsy,'toxicological'analysis,'interpretation'of'the' ' ' must'also'be'considered'in'the'context'of'the'circumstances'surrounding'death,'medical' 2.' A'complete'scene'investigation'extends'to'reconciliation'of'prescription'information'and' ' pill'counts.' ' ' from'the'femoral'vein'is'preferable'to'blood'from'other'sites.' 4.' A'toxicological'panel'should'be'comprehensive'and'include'opioid'and'benzodiazepine' ' ' ' ' ' any'apparent'intent'of'self@harm'is' accident. 'Reserve' undetermined 'as'the'manner'for' ' Surveillance,'Public'health,'Postmortem Volume'3'Issue'1 The term opioid in this document refers to any substance that stimulates the body s opioid receptors, whether that substance is naturally derived (e.g., morphine, codeine), semisynthetic (e.g., hydrocodone, oxycodone), or synthetic (e.g., methadone, fentanyl). Opioids marketed for pain relief are called opioid analgesics (1). Since 1999, the number of intoxication deaths involving opioid analgesics in the United States has quadrupled (2), reaching 16,651 deaths in 2010 (3) and surpassing the combined total of intoxication deaths involving heroin or cocaine (4). but the contribution of opioid analgesics to the This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 122
38,000 drug-related deaths in the United States is even greater than such data suggest, because type of drug involved in drug poisoning deaths in the United States (2, 3). For example, certifying the cause of death as mixed drug intoxica- by name. In addition, individual jurisdictions vary widely in the degree to which they docu- and intoxication are used synonymously in this paper). In 2012, the American College of Medical Toxi- port provided by the Centers for Disease Control and Prevention (CDC), convened an expert panel consisting of pathologists and toxicologists to ad- oid drug related deaths. This panel systematically reviewed the peer-reviewed literature regarding the topic of fatal opioid analgesic poisoning. The intent of this panel was to develop evidencebased recommendations for the practice of death investigation and autopsy, toxicological analysis, interpretation of those analyses, and death certi- surveillance and epidemiologic efforts. The panel formulated six questions designed to address best practices and searched the literature to provide evidence to support those practices (Table 1). These questions are arranged in the order that they would arise during the investigation of a death. The panel submitted a position paper to and each society endorsed that position paper (6). This article provides details of the development of the questions, the level of evidence available in the medical literature, and additional data that support the position paper. Prior to the panel s meeting, a health sciences librarian (GGH) searched PubMed for articles relevant to opioid-related deaths, using the questions developed by the panel. The search strategies included medical subject heading (MeSH) terms related to opioids/opiates, mortality, toxicology, Appendix). The panel s consensus was to limit the search to English language articles about humans published in the last 20 years, with the opioid-related concepts listed above designated as major subject headings. Using these criteria, the librarian retrieved Justice Reference Service Database yielded 23 additional citations. The principal investigator viewed by panel members. The articles generally consisted of review articles, case-control studies, or case series reviews, as is typical for the pathology literature. In reviewing the articles, the panel members commented upon the pertinence of the article to answering each of the six ques- tional Center for Biotechnology Information), more targeted searches, and recommendations from panel members increased the number of articles considered. Ultimately, 227 articles were reviewed for the guidelines and manuscript. 1. Within the bounds of state law, which deaths require assumption of jurisdiction and performance of an autopsy? sence of a history of opioid use are unreliable predictors of intoxication in forensic pathology practice (7, 8). This is especially true for opioid analgesic poisonings because decedents frequently lack a history of any prescription for opioids (9). Conversely, the use of opioids is so prevalent that many people dying of other causes have a history of opioid use (10). Consequently, the panel recommends that medical examiners and coroners (ME/Cs) assume jurisdiction of cases where the death is unexpected or unexplained and the person was in apparent good health, or when the death is known or suspected to be unnatural (e.g., fatal intoxication) (11). The autopsy provides the most accurate means 'List'of'Questions'Used'to'Improve'Quality'of'Death'Investigation'in'Opioid'Deaths 1. Within the bounds of state law, which deaths require assumption of jurisdiction and performance of an autopsy? 2. What constitutes appropriate and necessary scene investigation? 3. When is it appropriate or necessary to perform toxicology testing? 4. What are the best techniques for specimen collection and what should be the scope of the toxicological analysis? 5. 6. What are the optimal methods for determining and recording (certifying) cause of death, manner of death, and how This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 123
REVIEW ARTICLE of determining the cause of death (12). External examination, even including blood sampling for toxicology, is an inadequate substitute for autopsy for the purposes of detecting and certifying support or exclude intoxication as the cause of death (13). Therefore, the panel recommends that a ME/C assume jurisdiction and perform an autopsy to determine the cause and manner of death whenever intoxication is reasonably suspected as formance Standards also recommend that an autopsy be performed whenever intoxication is suspected (11). Because autopsy is the examination necessary to meet the proper standard of practice in suspected intoxication deaths, the panel rec- funding and personnel to meet this standard. Lo- ence which cases receive autopsies (11). The panel recognizes that many intravenous drug abusers are infected with blood-borne pathogens Virus) (14), but proper precautions allow those performing the autopsy and toxicological analysis to minimize the risk of infection (15), and thus concern regarding contracting an infectious disease while performing an autopsy in these cases is an inadequate reason to avoid internal autopsy examinations. External examination is an inadequate substitute for autopsy for the purposes of detecting and certifying drug caused deaths. The panel recommends that whenever a ME/C assumes jurisdiction in a death, the ME/C should also seek and assume jurisdiction over any laboratory specimens such as blood, serum, and urine obtained prior to death by medical professionals (16). 2. What constitutes appropriate and necessary scene investigation? The expert panel supports the practices recom- published by the United States Department of Justice (17). Other excellent general guidelines for scene investigation are readily available (18). The panel concurs with the investigative guidelines calling for an investigator and ME/C to look for evidence of drug use, misuse, or abuse; examples are listed in Table 2. The presence of recent needle marks can be strongly predictive of intoxication (19), but the presence of prescription vials may not be predictive. The absence of drugs or paraphernalia, however, has a low predictive value (9). The best practice of investigation includes seeking evidence of use of medications, illicit drugs, or both. Therefore, the ME/C should document any medical therapy, both at the scene in the form of acute attempts at resuscitation (e.g., injection sites for intravenous access, naloxone administration) and subsequently in the form of medical and prescription records concerning the decedent s medical history. The panel recommends taking an inventory of all medications found at the scene. This inventory provides important information to both pathologists and toxicologists. For opioid analgesics, comparison of the number of tablets or amount of medication dispensed with the stated administration regimen and number of pills remaining at the time of death can provide useful information for the determination of the cause and manner of death and may direct toxicology testing. A medication log provides a concise means for in- 'Examples'of'Scene'Findings'Suggesting'Opioid'Misuse'or'Abuse Opioid medications History of methadone use Evidence of intravenous drug abuse (e.g., needles, cooker spoons, tourniquet, crushed tablets, packets of powder or crystals, other drug paraphernalia) Overlapping prescriptions for the same type of prescribed controlled substances; prescriptions for controlled substances from multiple pharmacies or multiple prescribers Prescriptions in other people s names Pills not stored in prescription vials or mixed in vials Injection sites not due to resuscitation attempts Altered transdermal patches Many transdermal patches on body or transdermal patches in unusual locations, (e.g., mouth, stomach, vagina, or rectum) Volume'3'Issue'1 Application of heat to increase the rate of transfer of drug from transdermal patch to decedent Presence of naloxone This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 124
vestigators to record the necessary information, making it easier to assess appropriate use, overuse, or underutilization of prescription drugs. The examination of medications also provides general information about medical history that may not be otherwise immediately available and that may relate to the potential for opioid related medications for chronic obstructive pulmonary disease and a new prescription for an opioid (from an emergency department) at the investigative scene. A medication log, whether in the form of a table, spreadsheet or database, includes all of the medications names, dosing informa- and the prescriber information (Figure 1). This information can aid in the eventual interpretation of postmortem concentrations. For example, time suggests the possibility that tolerance may titioners prescribing overlapping dosages of controlled drugs with similar effects or synergistic effects suggests chronic abuse and doctor shopping. Medication container contents should be nation if pills are mixed or altered. Jurisdictions may differ in the approach to this inventory of medications. Digital photography can effectively document medications at scenes (20). Pill bottle labels and contents can be photographed, and then counted on scene, without taking physical custody of medications. Attempts to manipulate opioids, such as tablets that have been crushed or otherwise altered, should be noted as indications the appropriate disposal of those drugs that are retained as evidence in a given case, once the evidence is no longer needed. Unlike pills that are ingested and quickly dissolved, transdermal patches for opioid delivery are often found still attached to the body. Users can intentionally or inadvertently alter the release of drug from a transdermal patch, possibly leading to death, and manufacturers may be subject to civil litigation based on allegations of manufacturing defects and recalls (21). For all these reasons, transdermal patches require special handling as evidence. The panel recommends that the scene investigator describe and record the patch prescription information, including manufacturer; lot number; and numbers of patches remaining at the scene. Document any evidence at the scene that the patch was used in a manner that would increase drug delivery, whether across skin (e.g., tanning salon, hot tub, or heating pad) or through mucosa (e.g., chewing or swallowing patch). Inspect the oral cavity and gastric contents of patch users carefully, especially if patch counts are discordant at the scene, as abusers may ingest the patches. During examination, it is important to record the position of the patch on the body, ideally photographing it both in situ and after removal (22). The pathologist should note any residue on the body, or folds or defects on the patch, and comment on the integrity of the underlying skin. Because of the potential for criminal or civil litigation, any defects noted in the integrity of a patch may require further investigation at a later time. Regardless of whether a defect is visible or not, the panel recommends retaining the patches removed from the body as evidence because allegations of patch malfunction are common. Placing used patches in a clear round container, with the sticky side on the inside and away from the walls of the container, allows for the best preservation of the patch for subse- of fentanyl patches onto paper or heat sealing them in plastic can damage the adhesive surface and compromise patch integrity, compromising the utility of material science examination for manufacturer defects. Patient Controlled Analgesia (PCA) pumps or indwelling catheters or analgesic implants in a drug-related death require special investigations and procedures. A PCA pump can be queried Medication Dose (mg) Pharmacy Phone Prescriber Quantity Left Instructions xxxx diazepam 10 90 37 1 tab TID yyyy oxycodone 30 90 0 1 tab q8h zzzz atenolol 50 30 22 1 tablet qd 'Example'of'a'spreadsheet'useful'for'tabulating'medications'found'at'a'scene.'With'appropriate'additions,'this'sheet' can'also'include'information'obtained'from'a'prescription'drug'monitoring'program'or'simultaneously'serve'as'a'transfer'of' evidence'form. This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 125
REVIEW ARTICLE for loading doses, administration schedule, and remaining drug in the reservoir. Anesthesia specialists and clinical pharmacists can help obtain information from the pump. Due to the risk of loss of potential useful evidence in a hospital death associated with use of a PCA pump, investigation should include requests of hospitals to maintain pumps and associated bags containing the delivered medication. Human operator error is a common cause of malfunction of PCA pumps (23, 24). The examination of the pumps is technically demanding and beyond the scope of this paper. If possible and allowed by law, the investigator should seek information on the number and timing of prescriptions for controlled substances received from state prescription drug monitoring programs (PDMP). Though 43 states have opera- tion and operation of PDMPs varies among states in important details such as which controlled substances must be reported, who has access to the data, and which medication dispensers are required to submit data (25). Some states restrict access to physicians who are treating a given patient. Because PDMP have information that can be useful in the evaluation of deaths where opioid drugs are detected, the panel recommends that ME/Cs have access to the information available in prescription drug monitoring programs both in the decedent s state and across state lines. As of September, 2012, only twelve states provided PDMP data to coroners and/or medical examiners (26). Currently, there are no national level requirements for either uniformity in PDMP data or interoperability. 3. When is it appropriate or necessary to perform toxicology testing? drug use, misuse, or abuse (28); 2. Evidence of prescription opioid or illicit drug abuse revealed by scene investigation; illicit drug abuse (e.g., needle marks, hepatic cirrhosis, and cases in which birefringent crystalline material is within foreign body giant cells in the lungs); 4. Massive lung edema and froth in airways with no grossly visible explanation (e.g., heart disease) or other non-toxicological explanation (e.g., epileptic seizure) (29); 5. Potential or suspected smugglers of illicit drugs (mules) (30); autopsy; 7. Decedents with a potential natural cause of death visible at autopsy whenever a drug may have precipitated or contributed to death by an additive mechanism, such as opioidinduced respiratory depression in a decedent with emphysema; or 8. Traumatic deaths. (Such testing can provide information concerning a factor that may have contributed to death, thereby allowing better measurement of the total social burden of drug use and helping resolve questions that arise later in legal proceedings (7). For exam- of a driver who sustains an open skull fracture in a motor vehicle crash may provide an explanation for the driver s failure to negotiate a sharp curve in the road). Volume'3'Issue'1 In the absence of constraints on funding, resources, or time, a ME/C would ideally conduct toxicology testing on all decedents, because the combination of history, investigative information, and autopsy is an insensitive indicator of drug have found it useful to assess cases at the time of autopsy for the presence of drugs based on a quick screening test of urine with a kit (8, 27). Screening tests alone offer only weak evidence, are subject to clinical and analytical false negatives, and are inadequate for establishing a cause of death (8, 27). Because constraints on resources are common in forensic practice, the panel recommends performing toxicological analysis for controlled substances on all decedents for whom one or more of the following conditions are true: 1. Known history of prescription opioid or illicit 4. What are the best techniques for specimen collection and what should be the scope of the toxicological analysis? Factors such as delay in autopsy, sampling technique, and specimen preservation contribute more to inaccuracies associated with toxicological testing than do the testing procedures themselves (31), but procuring and storing toxicology specimens under optimal conditions mitigate for collection of blood, urine, and vitreous humor as toxicology specimens in all cases, provided these specimens are available (11). Specimens that may be particularly relevant to deaths related to opioids include blood, vitreous humor, urine (or bile when urine is not available), and gastric contents. In cases of decomposing remains, decomposing tissue, preferably deep tissue such as This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 126
liver or brain, should be taken as a toxicology mended specimen due to lack of interpretive value. Literature that provides evidence-based guidance in the interpretation of concentrations in decomposing tissue is lacking. The interpretation of postmortem concentrations is discussed at greater length under Question 5. Because of postmortem redistribution of drugs, the best source of a blood sample for toxicological analysis is the ilio-femoral vein (16, 32). and draw distal to the ligation under direct visualization, at least one study shows that samples drawn by blind stick access to the femoral vein yield closely comparable concentrations (33). If femoral vein blood is not available, then blood from the subclavian vein, the right atrium of the heart, or any other intact blood vessel is the next choice, listed in decreasing order of desirability (16). Blood obtained from a body cavity is a specimen of last resort. Useful specimens are shown in Table 3. Label each specimen as accurately as possible regarding the anatomical source of the specimen (e.g., blood from femoral vein, not blood ) and document transfer of specimens with an appropriate chain of custody. Circumstances may make one specimen more relevant than others (e.g., gastric contents when there is a suicide note and empty pill bottles). Store specimens in tightly sealed containers at 4 C for short-term storage. Consult with the analytical toxicologist who will be performing the toxicological analyses for guidance concerning longer storage. Sodium oxa- preservative, respectively, of choice for blood in routine cases. Articles summarize and detail specimen selection, collection, and storage (16, 32). 'Comments'Regarding'Various'Toxicological'Matrices'(note'that'list'is'not'exhaustive) Fluid / Tissue General Utility Blood (postmortem) Vitreous humor Urine Bile Liver Brain Hair Kidney Gastric contents Matrix for which most toxicological data exist. Subject to postmortem redistribution of drug, particularly when obtained from central sites. Best specimen is obtained from ilio-femoral vein. Best specimen for analysis of ethanol if body has entered an early stage of decomposition. Time delay between blood concentrations and entrance into vitreous must be considered. Best specimen for postmortem glucose determination. Fluid where certain drugs, drug metabolites and other toxicants accumulate. Fluid where certain drugs, drug metabolites and other toxicants accumulate. Generally associated with substances that are eliminated fecally. Organ of high concentration for many xenobiotics. tors result in accumulation of substances in the liver. Care must be taken in interpreting liver concentra- tors (e.g., postmortem diffusion and redistribution). Some reports of correlation to effects, however, data cally due to its fat content. Provides data related to exposure history through segmental analysis. Limitations may include external contamination and hair color bias. Many toxicants accumulate in kidney due to both Useful in some circumstances, particularly to assess for ingestion of inappropriate number of pills. Matrix for which most opioid data exist. For morphine, results should indicate whether reported concentration is for free or total morphine. 6-acetylmorphine persists longer in vitreous humor than in blood. Must be recognized that many opioids exist mainly as conjugates in urine. Ensure laboratory uses methods to account for conjugates. Opioids and opioid metabolites are found in high concentration. Opioids are generally stored or conjugated in bile, thus the presence of an opioid demonstrates exposure. Presence is not necessarily correlated to time of exposure, especially in chronic users. for some substances. Can demonstrate exposure blood. Potentially useful when blood is not readily available, correlations of some opioids to blood concentrations have been made (34). the potential effects of opioids, use patterns over time as demonstrated by segmental analysis may As an organ associated with elimination, opioids may accumulate in kidney, even in the absence of tions may be poor. This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 127
REVIEW ARTICLE Volume'3'Issue'1 An adequate analyte panel for opioid substances includes all common opioid analytes, including but not necessarily limited to those listed below (although propoxyphene is no longer sold, it does still exist): Buprenorphine Codeine Fentanyl Hydrocodone Hydromorphone Meperidine Methadone 6-Acetylmorphine Morphine Oxycodone Oxymorphone Propoxyphene Tapentadol Tramadol An analyte panel should also include other medications such as: Benzodiazepines Antidepressants Muscle relaxants Sleep aids Ethanol Stimulants (both pharmaceutical and illicit) Obviously, this list will change over time as pharmaceutical companies develop and market new drugs or cease production of a drug that is currently available. Evidence of drug use or abuse sometimes accompanies bodies into the morgue in the form of pills, patches, syringes, or packets of drugs. Drugs may be found in clothing or in body cavities. Clothing should be searched carefully in order to avoid needle stick injuries. The mere presence of a substance in a pocket does not necessarily predict ertheless, such evidence is useful during a death investigation. The toxicology laboratory needs to know what evidence was found, and the lab may also request samples of the substances found. 5. How does the interpretation of postmortem of deaths related to opioids? Postmortem drug concentrations are useful, even essential, in the determination of cause of death, but toxicological test results must be interpreted in the context of the circumstances surrounding death, the medical history, the scene of the death, elapsed between death and sample collection (35, 36). A ME/C must use caution when relying on case studies and published tables of toxicology results, as tables are often based on a few cases and provide little or no contextual information stances, recent controlled substance dose adjustments, extent of opioid tolerance, drug-drug in- site of sample collection, co-intoxicants, autopsy a concentration below what some consider a reported lethal range. Conversely, the simple presence of a drug concentration within the reported lethal range does not necessarily make the drug the cause of death. Correct interpretation again depends on knowledge of the circumstances particularly for drugs with a narrow therapeutic range (28). Drug concentrations measured in postmortem blood samples cannot be used to reliably calculate the precise quantity of medication consumed (37). Postmortem redistribution (PMR) is a long-established principle in forensic toxicology (38). This phenomenon results in changes in concentrations of drugs and other toxicants at various anatomical sites after death, especially in heart blood. Many factors can hasten or retard the likelihood of such an occurrence. Passive release of drugs from relative drug reservoirs, such as the gastrointestinal tract, liver, lungs, heart, or fat can alter the concentration of drug in blood that is no longer actively circulating. Autolysis and putrefaction may alter the chemical environment and destroy barriers at the cellular or gross level (e.g., gastromalacia), contributing further to postmortem redistribution. If, for example, these changes lead to additional drug release into the biological matrix sampled for toxicological testing, then the postmortem drug concentration may be falsely elevated with respect to the antemortem concentration. Alternatively, if these changes alter the drug chemically, then the postmortem concentration may be falsely decreased. Reviews describe these factors in more detail (39, 40). Attempting to predict the role of PMR in a given case is unwarranted, because striking variations in reported drug concentrations from site to site prevent reliance on this data (41). Although PMR can occur, it is unpredictable in magnitude and ertheless, a ME/C can generally make reasoned, clear, and defensible determinations of the cause and manner of death by using sound judgment based on the complete investigative and autopsy This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 128
should not be used as an excuse to avoid making decisions concerning cause and manner of death Tolerance accounts for some of the overlap between therapeutic, supratherapeutic, and lethal concentrations of opioid analgesics observed in decedents, complicating the interpretation of postmortem concentrations of opioids and oth- or after death other than empiric evidence based on the dose actually taken and tolerated, which is often unknown. Information from relatives or friends of the decedent and the decedent s medical records, pharmacy records, and state prescription drug monitoring programs may all help assess whether tolerance is likely, but this is at best a rough guide with many potential limitations. Many people who die of prescription opioid intoxication do not have a prescription in the PDMP for one or more drugs detected at autopsy (9). Other factors must also be considered when potential tolerance (42), such as loss of tolerance during incarceration or hospitalization, or the possibility that individuals sometimes divert rather than ingest the drugs prescribed to them (9). Research suggests that tolerance to the respiratory depression caused by opioids develops more slowly and less completely than tolerance to the intoxicating effects of opioids, so that continued abuse of opioids brings an individual seeking a high increasingly closer to the point of fatal respiratory depression (43). Because there tolerance is important as a consideration but dif- eral concept. Drug-drug or drug-toxicant interactions are complex and can occur on two levels pharmacokinetic and pharmacodynamic (44). These complex interactions can contribute to the development of adverse effects from an opioid. Pharmacokinetic interactions arise when one co-administered agent interferes with the absorption, distribution, metabolism, or elimination of another by one or more mechanisms such as competitive inhibition of metabolic enzymes. Pharmacodynamic interactions refer to the effect of drugs on an individual; these effects are related to the combined clinical effects of the substances, resulting in an increased, decreased, or different clinical effect of the target drug, as may occur when two central nervous system depressant-type substances (e.g., a benzodiazepine and an opioid) result in at least an additive effect. Because many variables determine whether any interactions occur, no a priori method can determine whether any interaction occurred in a given case; this should not, however, preclude consideration of potential interactions with respect to cause of death determination. Determination of the cause of death should account for pathways of drug metabolism (Figure 2). Given that heroin is metabolized rapidly to 6-acetylmorphine (6-AM), the presence of 6-AM cation to heroin. Laboratories should take precaution not to use analytical methods that produce unintended consequences (e.g., using an extraction technique that acetylates morphine to 6-AM or heroin). In the absence of 6-AM, heroin use can be reasonably inferred by other means. For example, pure morphine could come from the ingestion of morphine or as a metabolite of codeine. In heroin, however, codeine from the opium derived from poppies is present as a slight contaminant, and so a morphine:codeine ratio greater than one may be considered as evidence of heroin use, and thus the cause of death can be ascribed to heroin use (45, 46). If heroin use is suspected, and blood analysis does not yield supporting evidence of heroin use, analysis of urine and vitreous humor may reveal 6-AM, which persists in urine and vitreous humor longer than it persists in blood. Other opioids found in postmortem specimens must also be interpreted carefully in light of metabolic processes. For example, hydromorphone and hydrocodone may be the result of morphine and codeine administration, respectively (47). The concentration of drugs in solid tissues should be interpreted cautiously, because the data concerning solid organ drug concentrations are generally sparse and highly variable (16, 32). Drugs may distribute unevenly throughout organs such as the liver or brain because of variations in which further complicate interpretation (48-50). With certain organs (e.g., liver), a large breadth of data is available for some drugs, and such data have been used to assess intoxication, but always within the context of the case (16, 32). Interpretation of solid tissue concentrations of drugs is complicated, and often impossible beyond qualitative evidence of exposure. Pharmacogenomics is a developing science with respect to drug or toxicant effects. Current laboratory analyses can identify polymorphisms of key metabolic enzymes, such as the cytochrome P450 (CYP) genes (51-53). Such polymorphisms may alter the pharmacokinetic or pharmaco- thereby altering associated clinical effects of that This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 129
REVIEW ARTICLE Minor Dihydrocodeine Hydrocodone Minor Heroin Minor Codeine O 2D6'geno@ types,' as' is' conversion' of' hydrocodone' to' hydromorphone.' The' synthetic' oxidized' derivative' of' codeine,' oxycodone,' is' similarly'o@demethylated'to'oxymorphone.'minor'metabolic'conversion'of'codeine'and'dihydrocodeine'to'hydrocodone'has' Bioanalysis,'August'2009,'Vol.'1,' Volume'3'Issue'1 drug (54). The broad-based utility of such testing is still not fully established, in part because genotype does not necessarily correlate directly by a number of independent variables, including environmental factors and alternative meta- pharmacogenomic analysis may provide useful analysis would require saving a tube of blood preserved in EDTA (purple top tube) (56). 6. What are the optimal methods for determining and recording (certifying) cause of death, manner of death, and how injury occurred (including wording on the death mine priorities in public health. Four sections - data) and those who conduct research and public health work on opioid-related deaths Cause of ing to Death, Manner of Death, and the section labeled Describe How Injury Occurred. Death as possible following death, and completion is sometimes necessary before toxicology results maximize useful information about opioid drug deaths, the panel recommends that the death details available about a given death. In juris- before pertinent toxicology results are available, amended later to the appropriate cause and manner of death after the toxicology results are available. Any case in which toxicology results would change the cause or manner of death should also be amended; for example, a death attributed to coronary artery atherosclerosis with no more than 50% narrowing of the coronary arteries by plaque in which toxicology testing subsequently reveals an unexpected and high concentration of hydrocodone. In this example, the cause of death would be amended to hydrocodone intoxication with the coronary artery atherosclerosis contributing to, rather than causing, death. This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 130
Cause of Death Different countries adopt distinct approaches to attributing death to a drug or drugs. Some in the United States have recognized a lack of diagnosis of opioid deaths (57, 58). Therefore, this panel offers a standardized approach for certifying these deaths in the United States. The panel recommends listing all the drugs deemed as causal or contributory based on the ME/C s judgment (59, 60). List the generic name of all of the chemical agents in the autopsy report and descriptions such as mixed drug intoxication or polypharmacy in the absence of a list of the gists code substances that cause death as spe- accurate measurement of the magnitude of drug related deaths, thus hampering assessment of the need for public health interventions and evaluation of any instituted interventions). The recommended approach applies to drugs present in concentrations that the pathologist given case, understanding the limitations of drug concentration interpretation previously described. The recommended approach also applies to those cases where several drugs are each present in a concentration that might be considered sublethal, but the circumstances surrounding the aggregate effect of these drugs caused or contributed to death. If a drug is present but does not play any role in death, then the panel recommends not mentioning the drug on the death cer- tempts should not be included unless those drugs An example may clarify the recommendations in the previous paragraph. A 27-year-old decedent with a history of opioid abuse was heard snoring loudly and later found unresponsive. Autopsy showed no visible disease or injury. Toxicological analysis of blood from the iliac veins detected ethanol (0.21 g/dl), methadone (0.22 mg/l), hydrocodone (0.06 mg/l), acetaminophen (<10 progressively deeper respiratory depression has led to death. Methadone, hydrocodone, and ethanol all act as central nervous system and respiratory depressants, and their pharmacodynamic interaction caused death. Consequently, the cause of death statement would include the intoxicants acetaminophen nor nicotine is a depressant, and they did not cause or contribute to death because they do not potentiate lethal respiratory depression. Therefore, neither acetaminophen nor nico- Use of phrases such as abuse, addiction, or misuse in the cause of death section may result death may therefore be tabulated among natural causes of death rather than Accident, Suicide, or Homicide. If the ME/C believes the death is properly attributed to a chronic process, then use of such terms is appropriate. If, however, the ME/C believes death resulted from an acute intoxication or poisoning, then including terms such as poisoning, intoxication, toxicity, or overdose will result in a more accurate In this section, also referred to as Part II of the Cause of Death, list conditions that might have predisposed the person to death but which were For example, obstructive sleep apnea might contribute to death from an opioid overdose without being the underlying cause of death. The recom- of death also apply to listing contributing factors. Manner of Death In the US in 2008, over three quarters of the - the remaining deaths, approximately 10%, were on the manners of death assigned to drug deaths, particularly, the undetermined manner. For instance, in three states, over a third of these deaths wide variation suggests that there are inconsis- difference in available evidence. Drug-related deaths are often complex, requiring thorough investigation (e.g., interviews with family and friends of the decedent, review of a decedent s diary or social networking pages, fam- cal records, prescription records, or information from a prescription drug monitoring program). This investigative information is then used in conjunction with the results of the autopsy and toxicological testing to determine a manner of This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 131
REVIEW ARTICLE death, whether accident, suicide, or homicide. ME/Cs must base a determination of suicide on appropriate investigative information and post- termination. Published guidelines from the CDC indicate that in a suicide, the fatal injury must be should be indication of intent of self-harm (60-62). By these criteria, intentional misuse of opioids in excess amounts for self-treatment or for the sensations that the drugs cause, while dangerous, does not by itself constitute a suicide. At the same time, assigning undetermined as the manner of death as a matter of course for deaths due to intoxication does not serve the public good, nor does this practice support efforts to intervene and prevent future intoxication deaths of a similar sort. The panel recommends classifying deaths from the misuse or abuse of opioids without any apparent intent of self-harm as accident. Reserve undetermined as the manner for the rare cases in which evidence exists to support more than one possible determination, that is, where some evidence suggests accident and other evidence suggests suicide or homicide. The drugs to which fatal intoxication is attributed the known information about the history, route of administration, drug source, and the type of drug formulation (Table 4). Examples for How Injury Occurred might include: history of chronic back pain, ingested drug prescribed to decedent or injected illicit substance. The same cause of death, acute methadone intoxication, could occur under different circumstances. Death from appropriate utilization of prescribed methadone differs from death from inappropriate use of prescribed methadone, which in turn differs from illicit use of methadone, and each of these circumstances calls for a different public health response to try to prevent such deaths in the future. preferable to general statements, avoid the use of the cause of death section, because such informa- data for public health work and may later prove to be incorrect. The recommendations of this panel are based on the best evidence provided in the medical literature for the investigation, evaluation, and of review. The panel recognizes that the forensic science concerning postmortem toxicologi- mounting number of deaths from drug intoxication. Historically, case reports and case series have provided the preponderance of evidence concerning postmortem toxicology in humans. Though each drug intoxication death is unique, common patterns can be found when analytic studies that investigate multiple factors and involve large number of cases are employed. The lack of studies serves as a call to forensic pathologists and toxicologists to conduct research base our practices. Large analytical studies can advance forensic science further and more quickly than continued dependence upon case series and case reports, but this will require recognition of pertinent cases on a large scale. While ME/Cs and toxicologists value their ability to work independently, the recommended standard procedures strengthen the public health and public safety community s response to the opioid epidemic and enhance the value of ME/C work products. Use of these recommendations will improve the detection and reporting of opioid-related deaths resulting in more accurate benchmarks by which to gauge the success of public health and safety interventions. Information Medical history Route of administration Examples of Details History of chronic pain, origin of pain (e.g., motor vehicle accident, fall, cancer), history or evidence of drug use, abuse or misuse (e.g., intravenous abuse, prescription medication abuse, Oral ingestion, intravenous injection, snorted, smoked, transdermal, transmucosal, unknown Volume'3'Issue'1 Source of drug Prescription, illicit street purchase, diverted from another person s prescription, unknown source Type of formulation Long-acting or extended release opioid, immediate-release opioid This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 132
questions PubMed Search Strategies Question 1: Within the bounds of state law, which deaths require assumption of jurisdiction and performance of an autopsy? ((( Mortality [Mesh] OR mortality [Subheading]) OR Cause of Death [Mesh]) OR Death Examiners [Mesh] OR (jurisdiction[all Fields] OR jurisdiction/instrument[all Fields] OR jurisdiction [All Fields] OR jurisdiction s[all Fields] OR jurisdictional[all Fields] OR jurisdictionally[all Fields] OR jurisdictions[all Fields] OR jurisdictions [All Fields] OR jurisdictive[all Fields] OR jurisdictory[all OR Analgesics, Opioid [Pharmacological Action]) OR Opiate Alkaloids [Majr]) OR Opioid-Related Disorders [Majr]) Question 2: What constitutes appropriate and necessary scene investigation? (photographs, counting pills) ((( Analgesics, Opioid [Majr] OR Analgesics, Opioid [Pharmacological Action]) OR Opiate Alkaloids [Majr]) OR Opioid-Related Disorders OR mortality [Subheading]) OR Cause of scene[all Fields] Question 3: When is it appropriate or necessary to perform toxicology testing? (e.g., screening bedside assay, based on scene) (( Analgesics, Opioid [Majr] OR Opiate Alkaloids [Majr]) OR Opioid-Related Questions 4 & 5: What represents appropriate preanalytical issues (history, circumstances, testing), specimens, and toxicologic testing for potential opioid related deaths. How does the interpretation of tissue drug concentrations opioids? (e.g., metabolites, postmortem redistribution, presence of multiple drugs) (((( Mortality [Mesh] OR mortality [Subheading]) OR Cause of Death [Mesh]) OR [Majr] OR Analgesics, Opioid [Pharmacological Action]) OR Opiate Alkaloids [Majr]) (( 1997/01/01 [PDAT] : 2012/12/31 [PDAT]) Autopsy [Mesh]) OR Postmortem Changes [Mesh]) OR Forensic Sciences/methods [Mesh]) OR Tissue Distribution [Mesh]) OR Toxicology/methods [Mesh]) Question 6: What should be the standards for determining and recording (certifying) cause of death, manner of death, and how injury occurred (including wording on the death cer- Opioid [Majr] OR Opiate Alkaloids [Majr]) English[lang]) Lead Author: Gregory G. Davis MD MSPH Opioid Panel: Chair Sally S. Aiken MD Gregory G. Davis MD MSPH Henrik Druid MD PhD James R. Gill MD Bruce A. Goldberger PhD Judy Melinek MD Robert A. Middleberg PhD Owen L. Middleton MD Jeanmarie Perrone MD Paul M. Wax MD Review Consultants: Edward W. Boyer PhD MD Gregory J. Davis MD Corinne L. Fligner MD Chris Gharibo MD Stacey Hail MD Daliah Heller PhD MPH Jacqueline Martin MD This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 133
REVIEW ARTICLE Volume'3'Issue'1 Agnieszka Rogalska MD Information Management Consultant: Gale G. Hannigan PhD MPH The panelists gratefully acknowledge the technical support and expertise that librarians Gale Hannigan and Brian Bunnett of the University of by searching the literature, gathering articles, checking citations and recording the outcome of the review process. In addition, the panelists are for facilitating the multiple conference calls re- Funding support for this project was received from the Centers for Disease Control and Prevention (CDC), contract number 00HCUD3-2011-99784. those of the authors and do not necessarily rep- ken, Greg G. Davis, Gill, Goldberger, Melinek, received travel funds from the CDC award to participate in the expert panels. Drs. Goldberger and Middleberg received honoraria for their participation in the expert panel. Drs Boyer, Gill, Melinek, expert consultants and provide testimony in legal matters. Drs Gharibo and Gill have received payments for lectures. Dr. Gill has received royal- the development of a Medicolegal course. Dr. which has done fee-for-service work for the CDC. the Medical Investigator, received funds from the CDC to support the creation of this paper including his role as principal investigator and receives - tion has research awards in which he participates Institutes of Health (through Portland State University). Dr. Wax receives funds from the American College of Medical Toxicologists to be the Executive Director. The editors and publication staff do not report any 1) Yaksh TL, Wallace MS: Opioids, Analgesia, and Pain Management. In: Brunton LL, Chabner BA, Knollmann BC, eds: Goodman & Gilman s The pharmacological Hill Companies, Inc., 2011:481-525. 2) CDC 24/7: Saving lives. Protecting people [Internet]. Atlanta: Centers for Disease Control and Prevention; c2011. Morbidity and Mortality Weekly Report Signs: Overdoses of Prescription Opioid Pain [cited 2013 Jan 16]. Available from: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6043a4.htm. Health and Human Services, CDC; c2012. Multiple Cause of Death, 1999-2010; [cited 2013 Feb 1]. Available from: http://wonder.cdc.gov/mcd.html. 4) Warner M, Chen LH, Makuc DM, et al. Drug poison- Brief [Internet]. 2011 Dec [cited 2013 Jan 26]. Available from: http://www.cdc.gov/nchs/data/databriefs/db81.htm. 5) Paulozzi LJ, Ibrahimova A, Rudd RA, et al. A comparison of Florida medical examiners reports and death Acad Forensic Pathol. 2012; 2(2):190-7. and American College of Medical Toxicology Expert Panel on Evaluating and Reporting Opioid Deaths. paper: Recommendations for the investigation, drugs. Acad Forensic Pathol. 2013 Mar; 3(1):77-83. 7) Gruszecki AC, Booth J, Davis GG. The predictive value of history and scene investigation for toxicology results in a medical examiner population. Am J Forensic Med Pathol. 2007 Jun; 28(2):103-6. 8) Ceelen M, Dorn T, Buster M, et al. Post-mortem toxicological urine screening in cause of death determination. Hum Exp Toxicol. 2011 Sep; 30(9):1165-73. 9) Hall AJ, Logan JE, Toblin RL, et al. Patterns of abuse among unintentional pharmaceutical overdose fatalities. JAMA. 2008 Dec 10; 300(22):2613-20. 10) CDC 24/7: Saving lives. Protecting people [Internet]. Atlanta: Centers for Disease Control and Prevention; c2011. Morbidity and Mortality Weekly Report (MMWR) February 19, 2010; 59(6):153-7. Adult use of prescription opioid pain medications - Utah, 2008. 2010 Feb 19 [cited 2013 Jan 26]; Available from: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5906a1.htm. 11) Forensic Autopsy Performance Standards; 2011 revi- of Medical Examiners; 2011 Aug 11 [cited 2013 Jan 16]. 27 p. Available from: http://thename.org/index2.php?option= com_docman&task=doc_view&gid=160&itemid=26. death determination without forensic autopsy examination. Am J Forensic Med Pathol. 2003 Dec; 24(4):313-9. 13) Moritz AR. Classical mistakes in forensic pathology: Alan R. Moritz (American Journal of Clinical Pathology, 1956). Am J Forensic Med Pathol. 1981 Dec; 2(4):299-308. 14) Burt RD, Hagan H, Garfein RS, et al. Trends in hepatitis B virus, hepatitis C virus, and human immuno- tive measures among Seattle injection drug users aged 18-30 years, 1994-2004. J Urban Health. 2007 May; 84(3):436-54. This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 134
considerations for autopsy. Am J Forensic Med Pathol. 2002 Jun; 23(2):107-22. 16) Dinis-Oliveira RJ, Carvalho F, Duarte JA, et al. Collection of biological samples in forensic toxicology. Toxicol Mech Methods. 2010 Sep; 20(7):363-414. grams [Internet]. Washington: the Institute; [updated 32) Skopp G. Preanalytic aspects in postmortem toxicology. Forensic Sci Int. 2004 Jun 10; 142(2-3):75-100. 33) Hargrove VM, McCutcheon JR. Comparison of drug concentrations taken from clamped and unclamped femoral vessels. J Anal Toxicol. 2008 Oct; 32(8):621-5. 34) Pare EM, Monforte JR, Thibert RJ. Morphine concentrations in brain tissue from heroin-associated deaths. J Anal Toxicol. 1984 Sep-Oct; 8(5):213-6. 2011 Jun]. Death Investigation: A Guide for the Scene 35) Thompson JG, Vanderwerf S, Seningen J, et al. Free Investigator [updated 2011 Jun; cited 2013 Jan 16]. oxycodone concentrations in 67 postmortem cases from Available from: http://www.nij.gov/pubs-sum/234457.htm. 18) Practice guidelines for Florida medical examiners J Anal Toxicol. 2008 Oct; 32(8):673-9. [Internet]. Tallahassee (FL): Florida Department of 36) Andresen H, Gullans A, Veselinovic M, et al. Fentanyl: Law Enforcement; 2010 Jul 28 [cited 2013 Jan 16]. toxic or therapeutic? Postmortem and antemortem 31 p. Available from: blood concentrations after transdermal fentanyl getdoc/916d04c4-f522-4d8a-b16b-15fe90a9b28e/practice- application. J Anal Toxicol. 2012 Apr; 36(3):182-94. Guidelines-2009-Adopted.aspx. 37) Cook DS, Braithwaite RA, Hale RA. Estimating antemortem drug concentrations from postmortem of site of collection on postmortem morphine concen- trations in heroin overdose victims. J Forensic Sci. tion. J Clin Pathol. 2000 Apr; 53(4):282-5. 2006 Mar; 51(2):413-20. 38) Prouty RW, Anderson WH. The forensic science impli- 20) Oliver WR. Considerations for gross autopsy photogra- phy. Acad Forensic Pathol. 2011 Jul; 1(1):52-81. blood-drug concentrations. J Forensic Sci. 1990 Mar; 21) FDA: Protecting and promoting your health [Internet]. 35(2):243-70. Silver Spring (MD): U.S. Food and Drug Administra- 39) Pelissier-Alicot AL, Gaulier JM, Champsaur P, Marquet P. Mechanisms underlying postmortem issues a voluntary recall of 18 lots of fentanyl trans- redistribution of drugs: a review. J Anal Toxicol. 2003 dermal system 25 mcg/h; 2010 Oct 21 [cited 2013 Jan 26]; [about 2 screens]. Available from: http://www.fda.gov/safety/recalls/ucm230498.htm. 40) Ferner RE. Post-mortem clinical pharmacology. Br J Clin Pharmacol. 2008 Oct; 66(4):430-43. 22) Parai JL, Milroy C. The autopsy and toxicologic deaths. Acad Forensic Pathol. 2012 Sep; 2(3):222-7. 41) Anderson DT, Muto JJ. Duragesic transdermal patch: postmortem tissue distribution of fentanyl in 25 cases. 23) Musshoff F, Padosch SA, Madea B. Death during J Anal Toxicol. 2000 Oct; 24(7):627-34. patient-controlled analgesia: piritramide overdose and tissue distribution of the drug. Forensic Sci Int. 2005 42) Davis WR, Johnson BD. Prescription opioid use, mis City. Drug Alcohol Depend. 2008 Jan 1; 92(1-3): 24) Tran M, Ciarkowski S, Wagner D, Stevenson JG. A case 267-76. study on the safety impact of implementing smart patient-controlled analgesic pumps at a tertiary care 43) White JM, Irvine RJ. Mechanisms of fatal opioid academic medical center. Jt Comm J Qual Patient Saf. overdose. Addiction. 1999 Jul; 94(7):961-72. 2012 Mar; 38(3):112-9. 44) Pleuvry, BJ. Pharmacodynamic and pharmacoki- netic drug interactions. Anaesth & Intensive Care Med. monitoring programs. CRS Report for Congress 2005;6(4):129-33. [Internet]. Washington: Congressional Research 45) Ceder G, Jones AW. Concentration ratios of morphine Service; 2013 Jan 3 [cited 2013 Jan 26]. Available from: http://www.fas.org/sgp/crs/misc/r42593.pdf. to codeine in blood of impaired drivers as evidence of heroin use and not medication with codeine. Clin Chem. net]. Santa Fe: the Alliance; c2013. Prescription Drug Monitoring Project; [cited 2013 Jan 26] [about 5 screens]. Available from: http://www.namsdl.org/presdrug.htm. 27) Cina SJ, Collins KA, Goldberger BA. Toxicology: What is routine for medicolegal death investigation purposes? Acad Forensic Pathol. 2011 Jul; 1(1):28-31. 46) Jones AW, Holmgren A. Concentration ratios of freemorphine to free-codeine in femoral blood in heroinrelated poisoning deaths. Leg Med (Tokyo). 2011 Jul; 13(4):171-3. 47) Cone EJ, Heit HA, Caplan YH, Gourlay D. Evidence of morphine metabolism to hydromorphone in pain 28) Poulin C, Stein J, Butt J. Surveillance of drug overdose patients chronically treated with morphine. J Anal deaths using medical examiner data. Chronic Dis Can. Toxicol. 2006 Jan-Feb; 30(1):1-5. 1998; 19(4):177-82. 48) Madras BK, Kaufman MJ. Cocaine accumulation in 29) Dinis-Oliveira RJ, Santos A, Magalhães T. Foam dopamine-rich regions of the brain after i.v. administra- Cone exuding from the mouth and nostrils follow- tion: comparison with mazindol distribution. Synapse. ing heroin overdose. Toxicol Mech Methods. 2012 Feb; 22(2):159-60. 49) Pounder DJ, Adams E, Fuke C, Langford AM. Site to 30) Gill JR, Graham SM. Ten years of body packers site variability of postmortem drug concentrations in J Forensic Sci. 2002 Jul; liver and lung. J Forensic Sci. 47(4):843-6. 50) Merrick TC, Felo JA, Jenkins AJ. Tissue distribution of 31) Linnet K, Johansen SS, Buchard A, et al. Dominance of olanzapine in a postmortem case. Am J Forensic Med pre-analytical over analytical variation for the measure- Pathol. 2001 Sep; 22(3):270-4. ment of methadone and its main metabolite in postmortem femoral blood. Forensic Sci Int. 2008 Jul 18; 179(1):78-82. 51) Druid H, Holmgren P, Carlsson B, Ahlner J. Cytochrome P450 2D6 (CYP2D6) genotyping on postmortem blood as a supplementary tool for interpretation This article is intended for personal use, but may be distributed by the author for scholarly purposes. OPIOID DEATH TECHNICAL REPORT Davis'et'al. FDFCDC 135
REVIEW ARTICLE of forensic toxicological results. Forensic Sci Int. 1999 Jan 4; 99(1):25-34. 52) Holmgren P, Carlsson B, Zackrisson AL, et al. Enantioselective analysis of citalopram and its metabolites in postmortem blood and genotyping for CYP2D6 and CYP2C19. J Anal Toxicol. 2004 Mar; 28(2):94-104. 53) Johansson I, Ingelman-Sundberg M. Genetic polymorphism and toxicology with emphasis on cytochrome P450. Toxicol Sci. 2011 Mar; 120(1):1-13. 54) Smith HS. Opioid metabolism. Mayo Clin Proc. 2009 Jul;84(7):613-24. the challenges of the clinical application of pharmacogenomic testing. Clin Pharmacol Ther. 2009 Jul; 86(1):28-31. Fatal and severe codeine intoxication in 3-year-old twins interpretation of drug and metabolite concentrations. Int J Legal Med. 2009 Sep; 123(5):387-94. iner and medical toxicologist agreement on cause of death. Forensic Sci Int. 2011 Mar 20; 206(1-3):71-6. Babel: why we need to agree on a lexicon in prescrip- - tion opioid research. J Med Toxicol. 2012 Dec; 8(4):331-2. 59) Cone EJ, Fant RV, Rohay JM, et al. Oxycodone involvement in drug abuse deaths. II: Evidence for toxic multiple drug-drug interactions. J Anal Toxicol. 2004 Oct;28(7):616-24. ers and coroners handbook on death registration and fetal death reporting. Hyattsville, MD: Department of Health and Human Services, Centers for Disease Statistics; 2003 [cited 2013 Jan 26]. Available from: http://www.cdc.gov/nchs/data/misc/hb_me.pdf. 61) Breiding MJ, Wiersema B. Variability of undetermined Inj Prev. 2006 Dec; 12 Suppl 2:ii49-ii54. 62) Rosenberg ML, Davidson LE, Smith JC, et al. Operational criteria for the determination of suicide. J Forensic Sci. Volume'3'Issue'1 This article is intended for personal use, but may be distributed by the author for scholarly purposes. FDFCDC 136
National Association of Medical Examiners Position Paper: Recommendations for the Investigation, Diagnosis, and Certification of Deaths Related to Opioid Drugs Gregory G. Davis MD MSPH and the National Association of Medical Examiners and American College of Medical Toxicology Expert Panel on Evaluating and Reporting Opioid Deaths ABSTRACT: The American College of Medical Toxicology and the National Association of Medical Examiners convened an expert panel to generate evidence-based recommendations for the practice of death investigation and autopsy, toxicological analysis, interpretation of toxicology findings, and death certification to improve the precision of death certificate data available for public health surveillance. The panel finds the following: OPIOID DEATH POSITION PAPER 1. A complete autopsy is necessary for optimal interpretation of toxicology results, which must also be considered in the context of the circumstances surrounding death, medical history, and scene findings. 2. A complete scene investigation extends to reconciliation of prescription information and pill counts. 3. Blood, urine, and vitreous humor, when available, should be retained in all cases. Blood from the femoral vein is preferable to blood from other sites. 4. A toxicological panel should be comprehensive and include opioid and benzodiazepine analytes, as well as other potent depressant, stimulant, and anti-depressant medications. 5. Interpretation of postmortem opioid concentrations requires correlation with medical history, scene investigation, and autopsy findings. 6. If death is attributed to any drug or combination of drugs (whether as cause or contributing factor), the certifier should list all the responsible substances by generic name in the autopsy report and on the death certificate. 7. The best classification for manner of death in deaths due to the misuse or abuse of opioids without any apparent intent of self-harm is accident. Reserve undetermined as the manner for the rare cases in which evidence exists to support more than one possible determination. Gregory G. Davis MD MSPH is an Associate Coroner/Medical Examiner at the Jefferson County Coroner/Medical Examiner Office and a Professor of Pathology at the University of Alabama at Birmingham. Contact Dr. Davis at: gdavis@uab.edu. Acad Forensic Pathol 2013 3 (1): 77-83 2013 National Association of Medical Examiners KEYWORDS: Forensic pathology, Forensic toxicology, Medical toxicology, Opioid, Opiate, Death certification, Autopsy, Drug abuse, Surveillance, Public health Introduction The term opioid in this document refers to any substance that stimulates the body s opioid receptors, whether that substance is naturally derived (e.g., morphine, codeine), semisynthetic (e.g., hydrocodone, oxycodone), or synthetic (e.g., methadone, fentanyl). Opioids marketed for pain relief are called opioid analgesics (1). Since 1999, the number of intoxication deaths involving opioid analgesics in the United States has quadrupled (2). In 2012, the American College of Medical Toxicology (ACMT) and the National Association of Medical Examiners Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 137 Davis et al. Page 77
Page 78 Volume 3 Issue 1 NAME Position Paper (NAME), with financial support provided by the Centers for Disease Control and Prevention (CDC), convened an expert panel consisting of pathologists and toxicologists to address death investigation and certification of opioid drug related deaths. This panel systematically reviewed the peer-reviewed literature regarding the topic of fatal opioid analgesic poisoning. The intent of this panel was to develop evidence-based recommendations for the practice of death investigation and autopsy, toxicological analysis, interpretation of those analyses, and death certification in order to better inform public health surveillance and epidemiologic efforts. The panel formulated six questions designed to address best practices and searched the literature to provide evidence to support those practices. Details of the development of the questions, the level of evidence available in the medical literature, and the supporting data are provided in a companion article (3); this article provides a summary of the panel s recommendations. 1. Within the bounds of state law, which deaths require assumption of jurisdiction and performance of an autopsy? Table 1: Examples of Scene Findings Suggesting Opioid Misuse or Abuse Opioid medications History of methadone use Because autopsy provides the most accurate means of determining the cause of death (4), the panel recommends that a medical examiner or coroner (ME/C) assume jurisdiction and perform an autopsy to determine the cause and manner of death whenever intoxication is suspected as a possible cause for death. NAME also recommends that an autopsy be performed whenever intoxication is suspected (5). The panel further recommends that a ME/C office receive sufficient funding and personnel to meet this standard. Local laws governing jurisdiction might also influence which cases receive autopsies (5). The panel recognizes that some drug abusers are infected with blood-borne pathogens (e.g., Hepatitis C or Human Immunodeficiency Virus) (6), but proper precautions allow those performing the autopsy and toxicological analysis to minimize the risk of infection (7). Therefore, concern regarding contracting an infectious disease while performing an autopsy in these cases is an inadequate reason to avoid internal autopsy examinations. External examination is an inadequate substitute for autopsy for the purposes of detecting and certifying drug caused deaths. The panel recommends that whenever a ME/C assumes jurisdiction in a death, the ME/C should also seek and assume jurisdiction over any laboratory specimens, such as blood, serum and urine, obtained prior to death by medical professionals (8). 2. What constitutes appropriate and necessary scene investigation? The expert panel supports the practices recommended in the USDOJ National Institute of Justice (NIJ) Death Investigation Guidelines published by the United States Department of Justice (9). The panel concurs with the investigative guidelines calling for an investigator and ME/C to look for evidence of drug use, misuse, or abuse; examples are listed in Table 1. The ME/C should document any medical therapy, both at the scene in the form of acute resuscitation attempts (e.g., intravenous access sites, naloxone administration) and subsequently in the form of medical and prescription records concerning the decedent s medical history. Evidence of intravenous drug abuse (needles, cooker spoons, tourniquet, crushed tablets, packets of powder or crystals, other drug paraphernalia) Overlapping prescriptions for the same type of prescribed controlled substances, prescriptions for controlled substances from multiple pharmacies or multiple prescribers Prescriptions in other people s names Pills not stored in prescription vials or mixed in vials Injection sites not due to resuscitation attempts Altered transdermal patches Many transdermal patches on body or transdermal patches in unusual locations, e.g., mouth, stomach, vagina, or rectum Application of heat to increase the rate of transfer of drug from transdermal patch to decedent Presence of naloxone Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 138
The panel recommends taking an inventory of all medications found at the scene. If possible, seek information from state prescription drug monitoring programs, which have information that can be useful in the evaluation of deaths where opioid drugs are detected. For this reason, the panel recommends that ME/Cs have access to the information available in prescription drug monitoring programs both in the decedent s state and across state lines. 3. When is it appropriate or necessary to perform toxicology testing? The combination of history, investigative information, and autopsy is an insensitive indicator of drug intoxication (10, 11), but constraints on resources are common in forensic practice. Some forensic offices have found it useful to assess cases in the morgue for the presence of drugs based on a quick screening test of urine with a kit (11, 12). Screening tests alone offer only weak evidence, are subject to false negatives, and are inadequate for establishing a cause of death (11, 12). Therefore, the panel recommends performing toxicological analysis for controlled substances on all decedents for whom one or more of the following circumstances are true: 1. Known history of prescription opioid or illicit drug use, misuse, or abuse (13); 2. Evidence of opioid or illicit drug abuse revealed by scene investigation; 3. Autopsy findings suggesting a history of illicit drug abuse (including needle marks, hepatic cirrhosis, and cases in which birefringent crystalline material is within foreign body giant cells in the lungs); 4. Massive lung edema and froth in airways present with no grossly visible explanation (e.g., heart disease) or other non-toxicological explanation (e.g., epileptic seizure) (14); 5. Potential or suspected smugglers of illicit drugs (mules) (15); 6. No unequivocal cause for death identified at autopsy; 7. Decedents with a potential natural cause of death visible at autopsy whenever a drug may have precipitated or contributed to death by an additive mechanism, such as opioid-induced respiratory depression; or 8. Traumatic deaths. 4. What are the best techniques for specimen collection and what should be the scope of the toxicological analysis? Factors such as delay in autopsy, sampling technique, and specimen preservation contribute more to inaccuracies associated with toxicological testing than do the testing procedures themselves (16), but procuring and storing toxicology specimens under optimal conditions mitigate these factors (8, 17). The NAME standards call for collection of blood, urine, and vitreous humor as toxicology specimens in all cases whenever these specimens are available (5). Specimens that may be particularly relevant to deaths related to opioids include blood, vitreous humor, urine, bile, and gastric contents. Because of postmortem redistribution of drugs, the best source of a blood sample for toxicological analysis is the ilio-femoral vein (8, 17). Although some ME/Cs ligate the femoral vein and draw distal to the ligation under direct visualization, at least one study shows that samples drawn by blind stick access to the femoral vein yield closely comparable concentrations (18). If femoral vein blood is not available, then blood from the subclavian vein, the right atrium of the heart, or any other intact blood vessel is the next choice, listed in decreasing order of desirability (8). Blood obtained from a body cavity is a specimen of last resort. Label each specimen as accurately as possible regarding the anatomical source of the specimen (e.g., blood from femoral vein, not blood ). Store specimens in tightly sealed containers at 4 C for short-term storage. Sodium oxalate and sodium fluoride are the anticoagulant and preservative, respectively, of choice for blood for routine cases. Articles summarize and detail specimen selection, collection, and storage (8, 17). An adequate analyte panel for opioid substances includes all common opioid analytes, including but not necessarily limited to those listed below: Buprenorphine Codeine Fentanyl Hydrocodone Hydromorphone Meperidine Methadone 6-Acetylmorphine Morphine Oxycodone Oxymorphone Propoxyphene Tapentadol Tramadol Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 139 OPIOID DEATH POSITION PAPER Davis et al. Page 79
Page 80 Volume 3 Issue 1 NAME Position Paper An analyte panel should also include other medications such as: Benzodiazepines Antidepressants Muscle relaxants Sleep aids Ethanol Stimulants (e.g., cocaine and amphetamines) This list will change over time as pharmaceutical companies market new drugs or cease production of a drug that is currently available. 5. How does the interpretation of postmortem drug concentrations affect the certification of deaths related to opioids? Postmortem drug concentrations are useful, even essential, in the determination of cause of death, but toxicological test results must be interpreted in the context of the circumstances surrounding death, the medical history, the scene of the death, and the autopsy findings (19, 20). A ME/C must use caution when relying on case studies and published tables of toxicology results, which are often based on a few cases and provide little or no contextual information about specific case details. Given the proper circumstances and autopsy findings, a drug can cause death even at a concentration below what some consider a reported lethal range. Conversely, the simple presence of a drug concentration within the reported lethal range does not necessarily make the drug the cause of death. Drug concentrations measured in postmortem samples cannot be used to reliably calculate the precise quantity of medication consumed (21). Postmortem redistribution (PMR) is unpredictable in magnitude and direction and may not occur in every case. Nevertheless, a ME/C can generally make reasoned, clear, and defensible determinations of the cause and manner of death by using sound judgment based on the complete investigative and autopsy findings. The existence of PMR should not serve as an excuse to avoid making decisions concerning cause and manner of death in cases with toxicological findings. Tolerance accounts for some of the overlap between therapeutic, supratherapeutic, and lethal concentrations of opioid analgesics observed in decedents, complicating the interpretation of postmortem concentrations of opioids and other drugs (22). There is no reliable quantifiable measure of drug tolerance before or after death. Drug-drug or drug-toxicant interactions are complex and can occur on two levels pharmacokinetic and pharmacodynamic (23). Because many variables determine whether any interactions occur, no a priori method can determine whether any interaction occurred in a given case; this should not, however, preclude consideration of potential interactions with respect to cause of death determination. Determination of the cause of death should account for pathways of drug metabolism. Given that heroin is metabolized rapidly to 6-acetylmorphine (6-AM), the presence of 6-AM rather than heroin is sufficient to ascribe intoxication to heroin. In the absence of 6-AM, heroin use can be reasonably inferred by other means. For example, pure morphine could come from the ingestion of morphine or as a metabolite of codeine. In heroin, however, codeine from the opium derived from poppies is present as a slight contaminant, and so a morphine:codeine ratio greater than 1 may be considered as evidence of heroin use (24, 25). Interpretation of solid tissue concentrations of drugs is complicated and often impossible beyond qualitative evidence of exposure. Drugs may distribute unevenly throughout organs such as the liver or brain because of variations in blood flow, bio-accumulation, and other factors, further complicating interpretation (26). 6. What are the optimal methods for determining and recording (certifying) cause of death, manner of death, and how injury occurred (including wording on the death certificate)? Death certificate data are often used to determine priorities in public health. Four sections of the death certificate are particularly important to research and public health work on opioid-related deaths: Cause of Death, Other Significant Conditions Contributing to Death, Manner of Death, and the section labeled Describe How Injury Occurred. Death certificates must be completed and filed as soon as possible following death, and completion is sometimes necessary before toxicology results become available. Nevertheless, in order to maximize useful information about opioid drug deaths, the panel recommends that the death certificate be completed with the most specific details available about a given death and amended when pending results return. Cause of Death Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 140 If a death is attributed to a single drug or to a combination of drugs, whether as cause or as a contributing factor, then the best and recom-
mended practice is to list the generic name of all of the chemical agents that the pathologist considers responsible for causing death in the autopsy report and on the death certificate (27, 28). The recommended approach applies to drugs present in concentrations sufficient to have caused death or contributed to death in a given case. Avoid vague, nonspecific descriptions such as mixed drug intoxication or polypharmacy. Other Significant Conditions In this section, also referred to as Part II of the Cause of Death, list conditions that might have predisposed the person to death but which were neither necessary nor sufficient to cause death. For example, obstructive sleep apnea might contribute to death from an opioid overdose without being the underlying cause of death. The recommendations for specificity in wording the cause of death also apply to listing contributing factors. Manner of Death Drug-related deaths are often complex, requiring thorough investigation. This investigative information is then used in conjunction with the results of the autopsy and toxicological testing to determine a manner of death, whether accident, suicide, or homicide. The determination of suicide is often difficult; ME/Cs must base a determination of suicide on appropriate investigative information and postmortem findings and be able to defend this determination. Published guidelines from the CDC indicate that in a suicide the fatal injury must be consistent with being self-inflicted and that there should be indication of intent of self-harm (28, 29). By these criteria, intentional misuse of opioids in excess amounts for self-treatment or for the sensations that the drugs cause, while dangerous, does not by itself constitute a suicide. At the same time, assigning undetermined as the manner of death as a matter of course for deaths due to intoxication does not serve the public good, nor does this practice support efforts to intervene and prevent future intoxication deaths of a similar sort. The panel recommends classifying deaths from the misuse or abuse of opioids without any apparent intent of self-harm as accident. Reserve undetermined as the manner for the rare cases in which evidence exists to support more than one possible determination, that is, where some evidence suggests accident and other evidence suggests suicide or homicide. How Injury Occurred The drugs to which fatal intoxication is attributed should be listed in the Cause of Death field. The How Injury Occurred field should include the known information about the history, route of administration, drug source, and the type of drug formulation, as shown in Table 2. Examples for How Injury Occurred might include: history of chronic back pain, ingested drug prescribed to decedent or injected illicit substance. While it is true that more specific information is preferable to general statements, avoid the use of personal identifiers in this section, as such information may impede attempts to create de-identified data for public health work and may later prove to be incorrect. SUMMARY The recommendations of this panel are based on the best evidence provided in the medical literature for the investigation, evaluation, and certification of opioid-related deaths at the time of review. Additional detail concerning these recommendations is available in a companion paper (3). ME/Cs and toxicologists value their ability to work independently, but cooperation on a problem common to all strengthens the ME/C community s response to the opioid epidemic. Use of these recommendations will improve the detection and reporting of opioid-related deaths. Improved surveillance will reveal the magnitude of opioid-related deaths more accurately, thus clarifying attempts to decrease the number of opioid-related deaths and improving public health by monitoring the effects of these interventions. OPIOID DEATH POSITION PAPER Table 2: Useful Information for How Injury Occurred Information Medical history Route of administration Source of drug Examples of Details History of chronic pain, origin of pain (e.g., motor vehicle accident, fall, cancer), history or evidence of drug use, abuse or misuse (e.g., intravenous abuse, prescription medication abuse, methadone treatment, detoxification admissions) Oral ingestion, intravenous injection, snorted, smoked, transdermal, transmucosal, unknown Prescription, illicit street purchase, diverted from another person s prescription, unknown source Type of formulation Long-acting or extended release opioid, immediate-release opioid Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 141 Davis et al. Page 81
Page 82 Volume 3 Issue 1 NAME Position Paper Authors Lead Author: Gregory G. Davis MD MSPH Opioid Panel: Lewis S. Nelson MD Chair Sally S. Aiken MD Gregory G. Davis MD MSPH Henrik Druid MD PhD James R. Gill MD Bruce A. Goldberger PhD Judy Melinek MD Robert A. Middleberg PhD Owen L. Middleton MD Jeanmarie Perrone MD Paul M. Wax MD Kurt B. Nolte MD Principal Investigator Review Consultants: Edward W. Boyer PhD MD Gregory J. Davis MD Corinne L. Fligner MD Chris Gharibo MD Stacey Hail MD Daliah Heller PhD MPH Jacqueline Martin MD Denise Paone EdD BSN Agnieszka Rogalska MD Information Management Consultant: Gale G. Hannigan PhD MPH Acknowledgements The panelists gratefully acknowledge the technical support and expertise that librarians Gale Hannigan and Brian Bunnett of the University of New Mexico Health Sciences Library provided by searching the literature, gathering articles, checking citations and recording the outcome of the review process. In addition, the panelists are thankful for the assistance of Denise McNally of the National Association of Medical Examiners for facilitating the multiple conference calls required to produce the final document. Disclosures Funding support for this project was received from the Centers for Disease Control and Prevention (CDC), contract number 00HCUD3-2011-99784. The findings and conclusions in this report are those of the authors and do not necessarily represent the official position of the CDC. Drs Aiken, Greg G. Davis, Gill, Goldberger, Melinek, Middleberg, Middleton, Nelson, Perrone and Wax received travel funds from the CDC award to participate in the expert panels. Drs Goldberger and Middleberg received honoraria for their participation in the expert panel. Drs Boyer, Gill, Melinek, Nelson and Goldberger have received fees to be expert consultants and provide testimony in legal matters. Drs Gharibo and Gill have received payments for lectures. Dr. Gill has received royalties from the publication of scientific books and the development of a Medicolegal course. Dr. Middleberg is employed by the NMS laboratory which has done fee-forservice work for the CDC. Dr. Nolte s institution, the New Mexico Office of the Medical Investigator, received funds from the CDC to support the creation of this paper including his role as principal investigator and receives funds from the National Association of Medical Examiners (NAME) to support his role as Executive Vice President. In addition, Dr. Nolte s institution has research awards in which he participates from the National Institute of Justice and National Institutes of Health (through Portland State University). Dr. Wax receives funds from the American College of Medical Toxicologists to be the Executive Director. The opinions and conclusions of this paper have been reviewed and approved by the National Association of Medical Examiners Board of Directors and as such are endorsed by NAME. These opinions and positions are based on a consensus of the current literature, knowledge, and prevailing theories on this topic. As Scientific knowledge and experience grow, NAME reserves the right to revise or update these opinions. The process by which NAME position papers are initiated, written, reviewed, and approved is publically available at https://netforum.avectra. com/temp/clientimages/name/2c26a527-f992-4f70-9d03-7941bff5319d.pdf. All scientific position papers endorsed by the National Association of Medical Examiners automatically expire five years after publication unless reaffirmed, revised, or retired at or before that time. This work is a product of NAME and as such, was not subjected to Academic Forensic Pathology Journal editorial review. The editors and publication staff do not report any relevant conflicts of interest. References Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 142 1) Yaksh TL, Wallace MS: Opioids, Analgesia, and Pain Management. In: Brunton LL, Chabner BA, Knollmann BC, eds: Goodman & Gilman s The pharmacological basis of therapeutics, 12th ed. New York: The McGraw- Hill Companies, Inc., 2011:481-525. 2) CDC 24/7: Saving lives. Protecting people [Internet]. Atlanta: Centers for Disease Control and Prevention; c2011. Morbidity and Mortality Weekly Report (MMWR) November 4, 2011; 60(43); 1487-92. Vital Signs: Overdoses of Prescription Opioid Pain Relievers United States, 1999 2008; 2011 Nov 4
[cited 2013 Jan 16]. Available from: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6043a4.htm. 3) Davis GG, National Association of Medical Examiners and American College of Medical Toxicology Expert Panel on Evaluating and Reporting Opioid Deaths. Recommendations for the investigation, diagnosis, and certification of deaths related to opioid drugs. Acad Forensic Pathol. 2013 Mar; 3(1):62-76. 4) Nashelsky MB, Lawrence CH. Accuracy of cause of death determination without forensic autopsy examination. Am J Forensic Med Pathol. 2003 Dec; 24(4):313-9. 5) Forensic Autopsy Performance Standards; 2011 revision [Internet]. Marceline (MO): National Association of Medical Examiners; 2011 Aug 11 [cited 2013 Jan 16]. 27 p. Available from: http://thename.org/index2.php?option= com_docman&task=doc_view&gid=160&itemid=26. 6) Burt RD, Hagan H, Garfein RS, et al. Trends in hepatitis B virus, hepatitis C virus, and human immunodeficiency virus prevalence, risk behaviors, and preventive measures among Seattle injection drug users aged 18-30 years, 1994-2004. J Urban Health. 2007 May; 84(3):436-54. 7) Nolte KB, Taylor DG, Richmond JY. Biosafety considerations for autopsy. Am J Forensic Med Pathol. 2002 Jun; 23(2):107-22. 8) Dinis-Oliveira RJ, Carvalho F, Duarte JA, et al. Collection of biological samples in forensic toxicology. Toxicol Mech Methods. 2010 Sep; 20(7):363-414. 9) U.S. National Institute of Justice, Office of Justice Programs [Internet]. Washington: the Institute; [updated 2011 Jun]. Death Investigation: A Guide for the Scene Investigator [updated 2011 Jun; cited 2013 Jan 16]. Available from: http://www.nij.gov/pubs-sum/234457.htm. 10) Gruszecki AC, Booth J, Davis GG. The predictive value of history and scene investigation for toxicology results in a medical examiner population. Am J Forensic Med Pathol. 2007 Jun; 28(2):103-6. 11) Ceelen M, Dorn T, Buster M, et al. Post-mortem toxicological urine screening in cause of death determination. Hum Exp Toxicol. 2011 Sep; 30(9):1165-73. 12) Cina SJ, Collins KA, Goldberger BA. Toxicology: What is routine for medicolegal death investigation purposes? Acad Forensic Pathol. 2011 Jul; 1(1):28-31. 13) Poulin C, Stein J, Butt J. Surveillance of drug overdose deaths using medical examiner data. Chronic Dis Can. 1998; 19(4):177-82. 14) Dinis-Oliveira RJ, Santos A, Magalhães T. Foam Cone exuding from the mouth and nostrils following heroin overdose. Toxicol Mech Methods. 2012 Feb; 22(2):159-60. 15) Gill JR, Graham SM. Ten years of body packers in New York City: 50 deaths. J Forensic Sci. 2002 Jul; 47(4):843-6. 16) Linnet K, Johansen SS, Buchard A, et al. Dominance of pre-analytical over analytical variation for the measurement of methadone and its main metabolite in postmortem femoral blood. Forensic Sci Int. 2008 Jul 18; 179(1):78-82. 17) Skopp G. Preanalytic aspects in postmortem toxicology. Forensic Sci Int. 2004 Jun 10; 142(2-3):75-100. 18) Hargrove VM, McCutcheon JR. Comparison of drug concentrations taken from clamped and unclamped femoral vessels. J Anal Toxicol. 2008 Oct; 32(8):621-5. 19) Thompson JG, Vanderwerf S, Seningen J, et al. Free oxycodone concentrations in 67 postmortem cases from the Hennepin County Medical Examiner s Office. J Anal Toxicol. 2008 Oct; 32(8):673-9. 20) Andresen H, Gullans A, Veselinovic M, et al. Fentanyl: toxic or therapeutic? Postmortem and antemortem blood concentrations after transdermal fentanyl application. J Anal Toxicol. 2012 Apr; 36(3):182-94. 21) Cook DS, Braithwaite RA, Hale RA. Estimating antemortem drug concentrations from postmortem blood samples: the influence of postmortem redistribution. J Clin Pathol. 2000 Apr; 53(4):282-5. 22) Ferner RE. Post-mortem clinical pharmacology. Br J Clin Pharmacol. 2008 Oct; 66(4):430-43. 23) Pleuvry, BJ. Pharmacodynamic and pharmacokinetic drug interactions. Anaesth & Intensive Care Med. 2005;6(4):129-33. 24) Ceder G, Jones AW. Concentration ratios of morphine to codeine in blood of impaired drivers as evidence of heroin use and not medication with codeine. Clin Chem. 2001 Nov; 47(11):1980-4. 25) Jones AW, Holmgren A. Concentration ratios of freemorphine to free-codeine in femoral blood in heroinrelated poisoning deaths. Leg Med (Tokyo). 2011 Jul; 13(4):171-3. 26) Madras BK, Kaufman MJ. Cocaine accumulation in dopamine-rich regions of the brain after i.v. administration: comparison with mazindol distribution. Synapse. 1994 Nov; 18(3):261-75. 27) Cone EJ, Fant RV, Rohay JM, et al. Oxycodone involvement in drug abuse deaths. II: Evidence for toxic multiple drug-drug interactions. J Anal Toxicol. 2004 Oct;28(7):616-24. 28) National Center for Health Statistics. Medical examiners and coroners handbook on death registration and fetal death reporting. Hyattsville, MD: Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics; 2003 [cited 2013 Jan 26]. Available from: http://www.cdc.gov/nchs/data/misc/hb_me.pdf. 29) Rosenberg ML, Davidson LE, Smith JC, et al. Operational criteria for the determination of suicide. J Forensic Sci. 1988 Nov; 33(6):1445-56. OPIOID DEATH POSITION PAPER Downloaded from www.afpjournal.com by Gregory G Davis on 2013-03-06. This article is intended for personal use, but may be distributed by subscribers solely for scholarly purposes. FDFCDC 143 Davis et al. Page 83
FDFCDC 144
THE SCIENCE OF PERSUASION: HOW COGNITIVE SCIENCE CAN IMPROVE THE WAY WE WRITE Christopher Corts Laura A. Webb DISCUSSION OVERVIEW I. Introducing Your Argument A. Framing B. Priming C. Anchoring II. Presenting Your Argument A. Compromise B. Contradiction FDFCDC 145
Thinking Like a Lawyer Scientist: Using Cognitive Science to Persuade 1 We all have ideas about what is persuasive. Often, our ideas are grounded in anecdotal evidence from personal experience (I ve seen this work before) or intuition (it seems like this approach would persuade others). But what if we were able to draw on scientific evidence about how the brain works? What if we could root our persuasive techniques in something more definite than anecdote or intuition, and draw on a foundation of scientifically proven approaches to persuade? To be sure, when a lawyer writes a brief, a significant part of what convinces a court to take action a significant part of the argument will by necessity always be rooted in the nature, number and quality of legal authorities cited for support. But lawyers always have a range of persuasive techniques at their disposal that they can use to amplify, reinforce or overcome the legal sources they inherit. This article briefly explores techniques informed by cognitive psychology that can persuade your reader as you introduce and present your arguments. Each section provides scientific support for the five techniques we are advocating, and then applies those five techniques to legal writing. When you introduce an argument, we identify three techniques for predisposing your audience to agree with you: Framing, Priming, and Anchoring. When you present your argument, we discuss two techniques for making your arguments resonate with the reader: Compromise and Contradiction. 1 Christopher Corts and Laura A. Webb, Assistant Professors of Legal Writing, University of Richmond School of Law. 1 FDFCDC 146
Predisposing Your Audience: Using the Power of Priming, Framing, and Anchoring The Science To understand how persuasion works, we must first understand how our minds process new information. Daniel T. Willingham, a cognitive scientist and Professor of Psychology at the University of Virginia, proposes that a very simple graphical model of the mind might look like this: 2 Thinking involves moving information from the Environment and the Long Term Memory into Working Memory in order to solve problems. 3 Put another way: when we think, we make sense of new information by bringing it into contact with pre existing knowledge, using that prior knowledge to sort and make sense of the new inputs. Our brains use basic knowledge structures, called schemas, to define our expectations about how the world operates, fill in gaps in information, and facilitate an ability to make inferences and judgments with heightened ease, speed, and subjective 2 Daniel T. Willingham, Why Don t Students Like School? 11, Figure 6 (2009). 3 Id. at 11. Willingham notes that [t]hinking occurs when you combine information (from the environment and long term memory) in new ways. That combining happens in working memory. Id. Learning, in contrast, occurs when you place information into your long term memory, so that it can be retrieved later in order to solve a new problem. Id. 2 FDFCDC 147
confidence. 4 As you introduce your reader to the problem before him, you must provide him with sufficient context and cues so that he will draw upon the old, or existing, knowledge that you choose. Choosing the appropriate context and framing for your problem is essential because that is how you help your reader choose the schema you want him to choose. For example, if a lawyer learns that a client slipped on a banana peel in a grocery store and wants to know if the store is liable for her injuries, that lawyer could retrieve information from her long term memory about the law of torts, put it together with the new facts, and analyze the problem in her working memory. She knows to choose the schema of torts from the existing structures in her long term memory because she has been educated to recognize that a grocery slip and fall belongs in that structure. When a lawyer writes a brief, she is introducing new information an original synthesis of general legal sources and particular factual information drafted on behalf of a client for audiences that may not know anything about the law or facts. Or worse, perhaps for audiences who think they know a little or even a lot about both. Before you begin your argument, performing an audience analysis enables you assess the reader s pre existing base of knowledge and then target your writing to persuade your audience accordingly. With an understanding of that baseline knowledge, you will be able to connect new information your novel analysis to the reader s existing understanding. We call that skill linking creating connections between new information and the old or pre existing knowledge your readers already possess. Linking is a critical skill for the persuasive legal writer. Before introducing any new argument or assertion, a skillful advocate must take time and care to provide structure and 4 Jennifer K. Robbennolt & Jean R. Sternlight, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making 12 (2012). 3 FDFCDC 148
context for the reader in a way that facilitates the reader s ability to connect the writer s argument or assertion to what the reader knows (or what he thinks he knows) and to his pre existing knowledge, speculations, biases and/or beliefs. By familiarizing yourself with cognitive science, you can influence the reader s existing knowledge and thus maximize his ability to organize and understand your analysis. Three persuasive techniques help you influence the reader s context for new information: Framing, Priming, and Anchoring. Framing refers to providing structure for information so that people can easily link it to existing structures they already understand. Readers absorb information by combining new information and observations obtained from their environment with old information stored in their long term memories. The new information is organized based on the reader s existing understanding of what old information is relevant to the new situation or problem. There are several techniques that a legal advocate can use to frame a discussion in a way that facilitates the reader s ability to link the new information to what the reader already knows. One of the most helpful framing techniques is to draft an introduction that articulates the relevant issues by including the decisional premises (the rule and the critical facts) from the outset of the brief. 5 Then, you can reinforce that original formulation by drafting crisply written point headings that echo back to it. Another framing device involves incorporating a narrative approach to your argument. An effective writer will take care to develop vivid characters, settings, plots and themes the elements of good stories to tell her client s story, or to locate the client s 5 Bryan A. Garner, The Deep Issue: A New Approach to Framing Legal Questions, 5 Scribes J. Legal Writing 1, 4 (1994 1995). 4 FDFCDC 149
story within a larger social or legal storyline. The writer might also allude to familiar literary, legal, or cultural references. The writer can also help frame information for the reader by using two other familiar writing techniques topic sentences and transitions as she introduces new arguments or assertions. These sentences serve to link the argument or assertion to a related argument or piece of information the writer has already presented in the document. Priming occurs when people are exposed to prior information that subsequently influences their perceptions or response to later information. As we know, readers try to link new information to old information; priming provides an opportunity for you to provide the old information to which they will link. Because people tend to remember and give greater decisional weight to information received first more than information in the middle of a document, primed impressions tend to last even if later information contradicts the initial impression. 6 Priming can impact both the recollection of particular facts and the perception of those facts. In one intriguing study, when scientists primed participants to think about either (1) avoiding harm or (2) achieving goals, that priming impacted the participants opinions about constitutional protections for criminal defendants. First, the study authors primed a mindset in participants by asking one group to view photographs and read about actions that showed people taking steps to achieve a goal. 7 A second group viewed photographs and read about actions that showed people taking steps to prevent harm. A third group was not primed at all. 6 See generally Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 310 (2010). 7 Barbara O Brien & Daphna Oyserman, It s Not Just What You Think, But Also How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149, 161 (2008) (discussing how primed impressions in various contexts can influence later comprehension and decision making). A second study focused on the appropriate punishment for various crimes and obtained similar results. Id. 5 FDFCDC 150
Next, all groups were questioned about their views regarding the appropriate level of rights to afford criminal defendants. 8 The authors reported that even when they controlled for political affiliation, priming a mindset focused on avoiding harm increased participants focus on protecting defendants rights compared to priming a mindset focused on achieving success. 9 In other words, those participants who were subconsciously prepared to avoid harmful action were subsequently more interested in safeguarding the rights of criminal defendants. By careful positioning of information early in the argument, making deliberate word choices that evoke a particular mindset in reader s minds, and drafting topic sentences that show a reader how to interpret information, you can utilize priming science to persuade your reader. Anchoring influences people s perception of a situation by providing them with a starting point for the problem. Even if the starting point is obviously wrong, it can still successfully impact resolution. One recent study demonstrates the value of anchoring in legal writing. A group of judges read a motion that argued a case should be dismissed because it failed to meet the jurisdictional minimum of $75,000 in a diversity case. A second group of judges did not read the motion to dismiss. The case clearly exceeded the jurisdictional minimum of $75,000 a fact of which both groups were aware. Virtually all the judges in the first group denied the motion. Next, both groups were asked to assess damages in the case. Because the first group of judges had been anchored to a low valuation of the case through the motion to dismiss, 8 Id. at 159. 9 Id. at 161. FDFCDC 151 6
they awarded significantly lower damages than the second group of judges. 10 This was true even though the first group had rejected the low valuation and denied the motion. Legal writers can construct the anchors of their argument by introducing thematic elements early in the brief and maintaining their theme throughout. In addition, [a]nchors provided by initial demands or offers, damage caps, insurance policy caps, negotiator aspirations, and the media have influenced damage awards (by judges and jurors) and settlement outcomes. 11 Summary: Application to Legal Writing Provide context and structure for your argument by using roadmaps Construct a statement framing the case with decisional premises Create strong point headings to frame your argument and prime your reader Craft strong introductions that thematically anchor your argument Use narrative approaches to help sketch your client s legal and factual story Use transitions to link sections or subsections within the entire argument Choose words carefully to prime your reader to accept your side of the story Making Your Argument Resonate: Using the Power of Compromise and Contradiction Our minds naturally seek justification for decisions. 12 Legal readers seek explicit and coherent justification for decisions. Although all legal justifications must be grounded in 10 Robbennolt & Sternlight, supra, at 72. 11 Id. 12 Indeed, even poorly constructed or illogical justifications can be acceptable in certain situations. In one study, a psychologist increased the rate of acquiescence to her request to cut in line simply by linking the request to a justification with the word because. Harvard social psychologist Ellen Langer asked a group of people waiting in line to use a copying machine, Excuse me, I have five pages. May I use the Xerox machine? Sixty percent agreed. When she changed her request slightly to Excuse me, I have five pages. May I use the Xerox machine because I m in a rush? ninety four percent agreed a significant increase. And even when her justification added no new information and simply stated the obvious ( Excuse me, I have five pages. May I use the Xerox machine because I have to make some copies? ), ninety three percent still agreed. Experimental social psychologist Dr. Robert Cialdini concludes that it was not the validity of the reason for compliance that made a difference, but simply the inclusion of any superficially relevant reason that led the individuals to 7 FDFCDC 152
authority for your jurisdiction, understanding the persuasive power of Compromise and Contradiction can help you choose which sources to emphasize and how to present them. The Science As we know from our study of priming and anchoring, people s reaction to new information can be influenced by information presented with or before it. Practically speaking, the legal writer should carefully consider how to position and present her approach and argument to the reader. When individuals are asked to make decisions, they naturally compare and contrast possible outcomes before settling on one. Legal writers can present the options and arguments more persuasively by understanding how the power of compromise and contradiction can influence a reader to ultimately adopt our position. Compromise: The compromise effect occurs when the options provided include an extreme option; people are more inclined to view the other options as more moderate in comparison and, thus, more attractive. Just as the introduction of a high priced item on store shelves can push consumers towards the next priciest version of that good, 13 the insertion of an extreme position into your legal argument whether unusually good or unusually bad can make your desired position seem more moderate, reasonable, and desirable. Similarly, the introduction of an extreme verdict option can change jurors verdicts, making other verdicts seem more moderate. 14 Every time the legal writer wants to assert a new argument or authority, she has an opportunity to influence the reader to identify, process, and store that information in a way that will be favorable to her client. To maximize that opportunity, the science suggests that believe they had been given sufficient justification. Robert D. Cialdini, Influence: The Psychology of Persuasion 4 (1984). 13 Robbennolt & Sternlight, supra, at 93 (internal citations omitted). 14 Id. 8 FDFCDC 153
the legal writer is more likely to succeed if she can position new information as a wise and moderate choice that exists between extreme alternative options (the compromise effect). If you want to utilize the compromise effect, you should consider taking time to articulate slippery slope scenarios, highlight absurd and utopian outcomes, and argue in the alternative. As part of a larger litigating strategy, it may also be worthwhile to ask for a better outcome than is realistically achievable in the case, so that after a series of requests and refusals, you can retreat to the outcome that you truly and realistically desired in the first place. Contradiction: Readers and particularly skeptical legal readers are not inclined to believe there is only one side to an argument. A persuasive communicator must include some information about unfavorable precedent or negative facts. With respect to negative precedent, a lawyer bound by the rules of professional ethics already knows that she must disclose authority in the jurisdiction that is directly adverse to her client s position. 15 A skillful lawyer knows that doing so allows her to maintain credibility and put her own spin on the negative information. At best, failing to do so means the writer misses an opportunity to address relevant caselaw. At worst, it irritates the court. 16 The importance of defusing negative factual information is perhaps best illustrated by a study of mock jurors: 15 See, e.g., Va. Rules of Prof l Conduct 3.3 (2010). 16 In a 2011 case, the Seventh Circuit criticized counsel for failing to address unfavorable caselaw, even including a picture of an ostrich burying its head in the sand and noting that [w]hen there is apparently dispositive precedent, an appellant may urge its overruling or distinguish or reserve a challenge to it for petition for certiorari but may not simply ignore it. The court went on to note that [t]he ostrich is a noble animal, but not a proper model for an appellate advocate. Gonzalez Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011). 9 FDFCDC 154
[R]esearchers compared the credibility of an expert witness under three conditions: where there was no evidence of bias, where bias was raised by the other side on cross examination and only then addressed by the witness, and where the same bias was first raised and addressed by the witness on direct examination. The witness who raised the potential bias himself (stealing the other side s thunder) was seen as more credible, more prepared, more convincing, and more trustworthy than was the witness about whom the other side raised the bias. In fact, the witness who raised the bias himself was not seen as any less credible than the witness about whom no bias had been raised. 17 Once a legal writer has made the decision to proactively address unfavorable information, she can abandon what might have been a defensive posture: setting out the opponent s argument and explaining why it should fail. Instead, she can essentially inoculate the reader against potential bad effects of the negative information by taking control of the information and incorporating it into her own client s theory of the case. She can link it to earlier themes, narratives, and arguments that will have become familiar information to the reader by this point, thanks to her earlier priming, framing, and anchoring work. Summary: Application to Legal Writing Position your desired outcome as a moderate choice between undesirable extremes Acknowledge the existence of unfavorable precedent and negative facts without making them the focus of your brief Take control of negative law and fact by inoculating your reader against its potential bad effects: incorporate potentially negative facts and law into your established framework 17 Robbennolt & Sternlight, supra, at 124. FDFCDC 155 10
Conclusion Legal writers who appreciate the insights of cognitive science can tailor their briefs to meet the needs of the judicial mind, and subtly influence the decision making process. Some of the insights we have outlined in this paper have pointed toward techniques and practices that may be familiar to seasoned lawyers. However, understanding why these techniques work how the reader s brain absorbs and makes sense of new information presented by the legal writer can help even the most seasoned veteran employ these techniques with greater consistency, nuance and purpose. And, perhaps, to greater effect. FDFCDC 156 11
DETERMINING WHAT IS, OR IS NOT, A CRIME OF VIOLENCE OR VIOLENT FELONY Elizabeth W. Hanes Mary E. Maguire NOTES FDFCDC 157
Career Offender 28 USC 994(h) Hanes/Maguire COV Training: Violent Crime Cheat Sheet Page 1 Illegal Re-entry 8 USC 1326 Armed Career Criminal 18 USC 924(e)(2)(B) Firearm Offenses 18 USC 922(g) Guideline USSG 2L1.2 USSG 4B1.4 USSG 2K2.1 USSG 4B1.1 Applies when instant offense of convictions is: Illegal re-entry Felon in Possession Firearm 18 USC 922(g) Illegal Possession Firearm 18 USC 922(a-p, r-w, x(1)) 1 COV or other enumerated offenses 3 misdemeanor COV 3 prior convictions for violent felony or serious drug offense occurred on occasions different from one another 1-2 prior convictions for crime of violence or controlled substance offense Felony COV or controlled substance offense committed when D was at least 18 y.o. 2 prior felony convictions for crime of violence or controlled substance offense Impact of prior COV conviction Imposes higher BOLs Imposes 15 mandatory minimum sentence, replacing 10 year statutory maximum Imposes higher BOL Imposes significantly higher BOL, increases criminal history category to VI Element Prong Any offense that has as an element the use, attempted use, or threatened use of physical force against the person of another COV definition: Enumerated Offenses Residual or Otherwise Clause: Stale convictions (offenses not counted 4A1.1): Predicate juvenile offense: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling Reduces enhancement from 16 points to 12 points Pitfalls Date of entry/proof in US will establish date criminal conduct began, expanding convictions which are counted as COV Burglary, arson, or extortion, involves use of explosives, or otherwise involved conduct that presents a serious potential risk of physical injury to another NO IMPACT, No time limitation on which offenses will be counted Any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that [COV definition] Juvenile convictions, no time limit on predicate offenses Occasions different from one another 1 offense for criminal history Burglary of a dwelling, arson, or extortion, or involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another If stale, not counted as predicate offense 18 USC 924(c) is a COV, if career offender, special table applies
HOW TO DETERMINE IF YOUR CLIENT IS A CAREER OFFENDER OR AN ARMED CAREER CRIMINAL (ACCA) STEP 1: WHAT IS YOUR CLIENT'S CURRENT CHARGE? If current offense is drug trafficking crime or a crime of violence Consider Career Offender If current offense is felon in possession of a firearm or ammunition Consider ACCA STEP 2: REVIEW CRIMINAL HISTORY Review NCIC or prior record provided at detention hearing and flag any prior felony convictions which may be classified as serious drug offenses or crimes of violence (legal definitions below). ACCA o Serious Drug Offense Any offense under the Controlled Substances Act, 21 U.S.C. 801 et seq., for which the term of imprisonment of 10 years or more is prescribed by law OR an offense under state law involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance for which the maximum term is 10 years or more. 18 U.S.C. 924(e)(2)(A). KEY: MAKE SURE PRIOR HAS 10 YEAR STATUTORY MAXIMUM. o Violent Felony The ACCA defines violent felony in pertinent part as any crime punishable by imprisonment for a term exceeding one year... that (i) has as an element the use, attempted use or threatened use of physical force against the person of another; is (ii) burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(ii ). Prior offenses for ACCA can arise out of the same set of facts: convictions occur on occasions different from one another if each of the prior convictions arose out of a separate and distinct criminal episode, (e.g., two drug sales on the same day to an undercover agent, or a single robbery where defendant robbed the store, and then shot at an off-duty police officer while exiting), and no time limit on prior convictions. So there are three types of offense that will qualify: 1. Offenses that have an element of use or threat of force; 2. Enumerated offenses - burglary, arson, extortion, use of explosives; or 3. Present a serious potential risk of physical injury (residual clause). Hanes/Maguire COV Training: Step Approach Page 1 FDFCDC 159
Career Offender o Controlled Substance Offense An offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. o Crime of Violence In the Fourth Circuit, interpretation of crime of violence in 4B1.1 is guided by interpretation of the substantially similar term violent felony as used in the Armed Career Criminal Act ( ACCA ), 18 U.S.C. 924(e)(2)(B)(ii). United States v. Jenkins, 631 F.3d 680, 683 (4th Cir. 2011). The term crime of violence means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has an element of use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another. U.S.S.G. 4B l.2. o Remember prior felony offenses for CO have to be counted separately and scored for criminal history purposes under U.S.S.G. 4Al. l. STEP 3: OBTAIN COPY OF PRIOR CONVICTIONS Do not rely on any kind of criminal record summary or print-out because they are only as reliable as the person inputting the information. Get the paperwork from the prior convictions from the courts where they happened. If you let them know you are appointed and representing an indigent defendant they may waive the copying fees. This is also important because you will know whether or not paperwork on the prior conviction exist since it will be the government s burden at sentencing to prove your client is a career offender or an armed career criminal. (However, the Fourth Circuit has determined that a contested NCIC with other corroborative evidence showed, by a preponderance of evidence, the fact of a forty year old conviction. United States v. McDowell, 745 F.3d 115 (2014).) STEP 4: RESEARCH STATUTE OF CONVICTION Pull the statute for the prior conviction (note: statute of conviction, not charging instrument), jury instructions, state law interpreting statute, and federal law interpreting statute. The names of the statute can be misleading. Hanes/Maguire COV Training: Step Approach Page 2 FDFCDC 160
In some instances, a prior conviction labeled by the s tate as a misdemeanor still counts as a felony conviction if the maximum penalty is more than one year in prison. See Burgess v. United States, 553 U.S. 124 (2008). STEP 5: DETERMINE IF THE PRIOR CONVICTION IS A PREDICATE A. Does the Prior Conviction Have as an Element the Use, Attempted Use, or Threatened Use of Physical Force Against the Person of Another? The phrase physical force means violent force, force capable of causing physical pain or injury to another person. Violent felony requires strong physical force, and more than the mere touching of another. 1. Example: A Predicate Offense Robbery in Virginia requires the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. Virginia Robbery under Va. Code Ann. 18.2-58 is a violent felony because violence is the use of force. Intimidation is the threat of the use of force. Thus, because robbery in Virginia has as an element the use or threatened use of force, robbery therefore is a predicate under ACCA. United States v. Williams, 223 F. App x 280, 284 (4th Cir. 2007). 2. Example: Not a Predicate Offense The Florida statute for battery is not a violent felony because it contemplates conduct that is the mere touching of another person. Johnson v. United States, 559 U.S. 133 (2010). B. Does the Prior Conviction Share the Elements of One of the Enumerated Offenses? Determine the elements of the prior conviction to see if they match the elements of the enumerated generic offenses: burglary, arson, extortion or use of explosives. 1. Elements of Prior Offense Match or Are Narrower Than Generic Offense a. If the elements of the prior conviction match, or are narrower than, the elements of the enumerated generic offenses then it will qualify as a predicate. End of inquiry. b. Example: A Predicate Offense For example if a state burglary statute requires proof of three elements: (1) Unlawful entry; (2) Into a dwelling; (3) With intent to commit a crime. This matches CO/ACCA generic burglary definition and it will qualify as a predicate. Hanes/Maguire COV Training: Step Approach Page 3 FDFCDC 161
2. Elements of Prior Offense Criminalize Broader Range of Conduct Than Generic Offense a. If the elements of the prior conviction criminalize a broader range of conduct than the enumerated generic offense, then it is not a predicate. End of inquiry. b. Example: Not a Predicate Offense For example state burglary statute that requires: (1) Entry (2) Into a building (3) With intent to commit a crime This does not match CO/ACCA generic burglary definition because it is missing the unlawful entry element, so it will not qualify as a predicate. Descamps v. United States, 133 S. Ct. 2276 (2013). 3. Prior Offense Has Alternative Elements: Modified Categorical Approach a. If the predicate has alternative elements, some which fit the enumerated generic offense definition and some that do not, you are allowed to use the modified categorical approach. b. Example: Modified Categorical Approach A state burglary statute has two subsections with alternative elements 1 : Subsection (a) requires (1) unlawful entry (2) into a building with the intent to commit a crime. Subsection (b) requires (1) entry (2) into a building (3) with the intent to commit a crime. Subsection (a) has all three elements of a CO/ACCA generic burglary, but subsection (b) is missing the unlawful entry element. So, use the modified categorical approach to see which subsection served as the basis of the conviction to determine if it will qualify as a predicate offense. c. The modified categorical approach allows you to use Shepard documents to determine what your client was convicted of in the state court proceedings. Those documents include: the charging documents; terms of the plea agreement; transcript of factual basis for the plea, or some comparable judicial record of this information. Shepard v. United States, 544 U.S. 13 (2005). 1 How to determine whether a statute has alternative elements or alternative means (i.e., indivisible) has been the subject of much debate since Descamps. In United States v. Royal, 731 F.3d 333 (4th Cir. 2013), the Fourth Circuit undertook a careful analysis of elements using jury instructions, statutory language, and case law to determine divisibility. Hanes/Maguire COV Training: Step Approach Page 4 FDFCDC 162
An Alford plea will only help if the offense to which the client entered the Alford plea would be subject to a modified categorical analysis. United States v. Taylor, 659 F.3d 339 (4th Cir. 2011); United States v. Alston, 611 F.3d 219 (4th Cir. 2010). C. Does the Prior Offense Fall Under the Residual Clause? In order for a prior conviction to qualify as a predicate under the residual clause it must be roughly similar in kind as well as degree of risk involved in the enumerated crimes themselves (burglary, arson, extortion, use of explosives). The listed enumerated crimes all typically involve purposeful, violent, and aggressive conduct. 1. Some Crimes That Do Not Qualify as Predicate Offenses Under the Residual Clause Driving under the influence was not a violent felony because it was not purposeful, violent and aggressive. Begay v. United States, 553 U.S. 137 (2008). Failure to report for confinement did not qualify as a violent felony because it amounts to a form of inaction, very different from the purposeful, violent, and aggressive conduct at issue in the enumerated crimes. Chambers v. United States, 555 U.S. 122 (2009). Virginia assault and battery of a police officer is not a predicate offense because battery can include even the slightest touching, and is not comparable in the degree of risk it presents to the enumerated offense like burglary and arson. United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013). 2. Some Crimes That Do Qualify as Predicate Offenses Under the Residual Clause Attempted burglary is a violent felony for ACCA. When an individual has been arrested and charged and convicted of attempted burglary this will typically occur when the attempt is thwarted by some outside intervenor--be it a property owner or law enforcement officer. This outside intervention or confrontation with the property owner or law enforcement officer poses the potential serious risk of physical injury to another. James v. United States, 550 U.S. 192 (2007). Vehicle flight (eluding) is a violent felony for ACCA because the risk of violence is inherent in the crime of vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risks as a categorical matter than burglary. Sykes v. United States, 131 S. Ct. 2267 (2011). Larceny from the person is a crime of violence because it poses the risk of violent confrontation. United States v. Jarmon, 596 F.3d 228 (4th Cir. 2010); United States v. Smith, 359 F.3d 662 (4th Cir. 2004). 3. Maybe the Residual Clause Will Be Held Unconstitutional The Supreme Court will rule by July 2015 on whether the residual clause in the ACCA is unconstitutionally vague in Johnson v. United States, U.S. No. 13-7120, which addresses the issue of whether possession of a short-barreled shotgun is a predicate for ACCA. Hanes/Maguire COV Training: Step Approach Page 5 FDFCDC 163
Elements of the Generic Enumerated Offenses for ACCA and Career Offender Generic Burglary (ACCA ONLY): - Unlawful or unprivileged entry into, or remaining in - A building or structure - With intent to commit a crime Taylor v. United States, 495 U.S. 575, 599 (1990); Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Generic Burglary of a Dwelling (CAREER OFFENDER ONLY): - Unlawful or unprivileged entry into, or remaining in - A dwelling - With intent to commit a crime o There is a circuit split on the question of whether burglary of a non-residential building qualifies as a per se crime of violence under the career offender guidelines. See United States v. Bertuglia, 591 F. App x 39, n.1 (2d Cir. 2015) (recognizing circuit split). o The Fourth Circuit is in the majority, holding that burglary of a non-residential building is not per se a crime of violence under the career offender guidelines. United States v. Harrison, 58 F.3d 115, 119 (4th Cir. 1995); compare United States v. Giggey, 551 F.3d 27, 36 (1st Cir. 2008) (finding prior conviction for burglary not of a dwelling not per se a crime of violence), with United States v. Brown, 514 F.3d 256 (2d Cir. 2008); United States v. Hascall, 76 F.3d 902 (8th Cir. 1996). Generic Arson: - Malicious burning - Of real or personal property United States v. Knight, 606 F.3d 171, 174 (4th Cir. 2010) (concluding that Texas conviction for second-degree arson, which included burning of vegetation, substantially corresponds to generic arson). Generic Extortion (somewhat unclear, see Johnson v. United States, 559 U.S. 133, n.1 (2010)): Hobbs Act Definition (18 U.S.C. 1951(b)(2)): o Obtaining of property o From another o With his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. Generic Definition of Extortion for purposes of RICO: o Obtaining something of value o From another o With his consent induced by the wrongful use of force, fear, or threats. Scheidler v. Nat l Org. for Women, Inc., 537 U.S. 393, 409 (2003). Hanes/Maguire COV Training: Elements of Generic Enumerated Offenses Page 1 FDFCDC 164
Scalia, in dissent: o Obtaining something of value o From another o With his consent induced by the wrongful or threatened use of force against the person or property of another. James v. United States, 550 U.S. 192, 223-24 (2007). Generic Use of Explosives: - Use = active employment mere possession, storage, or inert presence United States v. Davis, 872 F. Supp. 1475, 1479 (E.D. Va. 1995) (use defined as to employ, to utilize, to convert to one s service, to make use of, to avail oneself of, or to carry out a purpose or action by means of ); United States v. Fish, 368 F.3d 1200, 1204 (9th Cir. 2004). - Involves use of explosives defines a means of committing a crime, rather than a specific crime. United States v. Misleveck, 735 F.3d 983, 984 (7th Cir. 2013). Hanes/Maguire COV Training: Elements of Generic Enumerated Offenses Page 2 FDFCDC 165
18 U.S.C. 924(e)(1): STATUTE AND GUIDELINE FOR ACCA In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. Serious drug offense Any offense under the Controlled Substances Act 21 USC 801 et seq, for which the term of imprisonment of 10 years or more is prescribed by law OR an offense under state law involving manufacturing, distributing, or possessing with intent manufacture or distribute a controlled substance for which the maximum term of imprisonment is 10 years or more. 18 U.S.C. 924(e)(2)(A) Violent Felony Any crime punishable for a term of imprisonment exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult that (1) Has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) Is burglary, arson, or extortion, involves explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. 4B1.4 The offense level for ACCA is the greatest of: (1) The offense level applicable from Chapters Two and Three; or (2) The offense level from 4B1.1 (Career Offender) if applicable; or (3) (a) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence as defined in 4B1.2(b), or if the firearm possessed by the defendant was a type described in 26 U.S.C. 5845(a); or (b) 33, otherwise If ands adjustment from 3E1.1 (acceptance of responsibility) applies decrease the offense level by the number of levels corresponding to that adjustment. The criminal history category for ACCA is the greatest of: (1) The criminal history category from Chapter 4, (criminal history or career offender) if applicable; or (2) Category VI, if the defendant possessed the firearm or ammunition in connection with either a crime of violence, as defined in 4B1.2(a), or a controlled substance offense, as defined in 4B1.2(b), or if the firearm possessed by the defendant was a type described in 26 U.S.C. 5845(a); or (3) Category IV. Hanes/Maguire COV Training: Relevant Statutes and Guidelines Page 1 FDFCDC 166
28 U.S.C. 944(h) STATUTE AND GUIDELINE FOR CAREER OFFENDER The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and (1) Has been convicted of a felony that is (A) A crime of violence; or (B) An offense described in section 401 of the Controlled Substances Act. (21 U.S.C. 841), sections 1002(a), 1005 and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of tile 46; and (2) Has previously been convicted of two or more prior felonies, each of which is (A) A crime of violence; or (C) An offense described in section 401 of the Controlled Substances Act. (21 U.S.C. 841), sections 1002(a), 1005 and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of tile 46; and U.S.S.G. 4B1.1 (a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. (b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender's criminal history category in every case under this subsection shall be Category VI. Offense Statutory Maximum Offense Level* (1) Life 37 (2) 25 years or more 34 (3) 20 years or more, but less than 25 years 32 (4) 15 years or more, but less than 20 years 29 (5) 10 years or more, but less than 15 years 24 (6) 5 years or more, but less than 10 years 17 (7) More than 1 year, but less than 5 years 12 *If an adjustment from 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment. Hanes/Maguire COV Training: Relevant Statutes and Guidelines Page 2 FDFCDC 167
Selected Recent Fourth Circuit Decisions on ACCA, Career Offender, and Aggravated Felonies Decisions on Process and Evidentiary Issues ACCA 1. Supreme Court challenge to residual clause of ACCA as unconstitutionally vague The Supreme Court, in Johnson v. United States, No. 13-7120, will rule on whether the residual clause in the ACCA is unconstitutionally vague. That clause defines a violent felony as one that otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B)(ii). The Court has applied the residual clause in four previous cases. The court decided that vehicle flight from law enforcement, Sykes v. United States, 131 S. Ct. 2267 (2011), and attempted burglary, James v. United States, 550 U.S. 192 (2007), are both violent felonies under the residual clause. However, convictions for driving under the influence, Begay v. United States, 553 U.S. 137 (2008), and failure to report incarceration, Chambers v. United States, 555 U.S. 122 (2009), are not. The original question in Johnson was whether possession of a short-barreled shotgun is a violent felony for ACCA. After argument in November 2014, the Court sought additional briefing on the issue above. Reargument is set on April 20, 2015. 2. Clarification on predicate offenses committed on occasions different from one another Nothing in 924(e) or the Guidelines suggests that offenses must be tried or sentenced separately in order to be counted as separate predicate offenses, and that the only requirement for applying the ACCA is that the predicate offenses be committed on occasions different from one another. United States v. Bruton, 589 F. App x 91 (4th Cir. 2014). 3. Degree of proof for predicate offenses The government presented sufficient evidence to prove the existence of the defendant s prior state conviction for robbery by presenting four documents: a computerized printout from the New York Department of Corrections; a Certificate of Disposition from the clerk of the Supreme Court of the State of New York, Kings County; a Report of Investigation from the Bureau of Alcohol, Tobacco, Firearms and Explosives; and a computerized form from the New York Supreme Court Criminal Term Correspondence Unit. In determining the mere fact of a prior conviction, a district court could rely on certified computerized printouts even when they contain inconsistencies and clerical mistakes. United States v. Archie, 771 F.3d 217 (4th Cir. 2014). A criminal record check obtained from the National Crime Information Center database listing the prior violent crime was sufficiently reliable, with some corroboration, to prove that the defendant had a prior conviction for second degree assault by a preponderance of the evidence. United States v. McDowell, 745 F.3d 115 (4th Cir. 2014). Hanes/Maguire COV Training: Recent Fourth Circuit Decisions Page 1 FDFCDC 168
4. Classification as felony offense Because the maximum sentence for the defendant s prior North Carolina common law robbery conviction exceeded 12 months, it qualified as a felony, and ACCA was triggered even though the judge sentenced the defendant to less than 12 months. United States v. Williams, 577 F. App x 177 (4th Cir. 2014). 5. Military general court-martial convictions support predicate offenses Convictions resulting from general courts-martial can be used as predicates for ACCA because military courts fall within scope of any court referred to in section 922(g)(1). United States v. Grant, 753 F.3d 480 (4th Cir. 2014). Decisions Regarding Predicate Offenses 1. Massachusetts larceny from person Violent felony under ACCA. United States v. Taste, F. App x (4th Cir. 2015). 2. North Carolina breaking or entering Violent felony under ACCA. United States v. Mungro, 754 F.3d 267 (4th Cir. 2014); United States v. Ingram, F. App x (4th Cir. 2015). 3. California first-degree burglary Violent Felony under ACCA. United States v. Avila, 770 F.3d 1100 (4th Cir. 2014). 4. Connecticut first-degree robbery Violent felony under ACCA. United States v. Bennerman, 585 F. App x 127 (4th Cir. 2014). 5. North Carolina conspiracy to commit robbery with a dangerous weapon Violent felony under ACCA. United States v. Melvin, 577 F. App x 179 (4th Cir. 2014). 6. Maryland first-degree burglary NOT a violent felony under ACCA. Maryland s first degree burglary statute encompasses conduct that falls outside the generic definition of burglary, because Maryland statute criminalizes burglarizing dwellings that include boats and motor vehicles. United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014). 7. Maryland resisting arrest NOT a violent felony under ACCA. Maryland conviction for resisting arrest does not categorically qualify as a crime of violence because the force required for that conviction is merely offensive physical contact, a threshold far lower than violent force capable of causing pain or injury to another. United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc). 8. Maryland second degree assault NOT a violent felony under ACCA. United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (2014) (concluding that the facially indivisible statute is not categorically a violent felony). Hanes/Maguire COV Training: 2014/2015 Fourth Circuit Update Page 2 FDFCDC 169
9. South Carolina assault and battery of high and aggravated nature NOT a violent felony under ACCA. United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013). 10. Virginia unlawful wounding (Va. Code Ann. 18.2-51) Split. Challenge as crime of violence. There is a division of authority over whether unlawful wounding is a crime of violence. See United States v. Lopez-Reyes, 945 F. Supp. 2d 658 (E.D. Va. 2013) (not a crime of violence under U.S.S.G. 2L1.1). But see United States v. Candiloro, 322 F. App x 332 (4th Cir. 2009) (unlawful wounding is a violent felony for ACCA); United States v. Etheridge, 932 F.2d 318 (4th Cir. 1991) (violent felony for ACCA);United States v. Joyner, 199 F.3d 1329 (4th Cir. 1999) (same); Lee v. United States, 559 F. App x 251 (Jan. 15, 2015) (crime of violence for career offender). Courts in other circuits have held that Virginia unlawful wounding is a crime of violence for various purposes. See Bushnell v. AG of the United States, No. 12-2330, 2013 WL 2436659, at *3 (3d Cir. June 6, 2013); United States v. Cobo- Raymundo, 493 F. App x 848, 850 (9th Cir. 2012); Singh v. Holder, 568 F.3d 525 (5th Cir. 2009). 11. Virginia assault and battery NOT a violent felony under ACCA. United States v. White, 606 F.3d 144, 153 (4th Cir. 2010). But see United States v. Vincencio-Martinez, 404 F. App x 633, 636 & n.7 (3d Cir. 2010) (expressly rejecting White and finding Virginia assault to be a crime of violence). Decisions on Process and Evidentiary Issues Career Offender 1. No requirement for term of incarceration for predicate offense There is no requirement that an offender have served time for a prior felony conviction in order for it to qualify under the career offender guideline. United States v. Wright, 585 F. App x 296 (4th Cir. 2014). 2. Consolidated sentences do not support multiple predicate offenses A consolidated sentence for multiple North Carolina convictions is to be treated as a single sentence for purposes of the career offender enhancement. United States v. Davis, 720 F.3d 215 (4th Cir. 2013). Decisions Regarding Predicate Offenses 1. Federal possession of prohibited object in prison COV under career offender. United States v. Phillips, 2015 WL 877413 (4th Cir. 2015). 2. North Carolina burning personal property COV under career offender. United States v. Hayes, 574 F. App x 259 (4th Cir. 2014). 3. New Jersey theft from the person of the victim COV under career offender. United States v. Manning, 564 F. App x 723 (4th Cir. 2014). Hanes/Maguire COV Training: Recent Fourth Circuit Cases Page 1 FDFCDC 170
4. Virginia assault and battery of police officer NOT COV under career offender. United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013). 5. Maryland fourth-degree burglary NOT Crime of Violence. United States v. Martin, 753 F.3d 485 (4th Cir. 2014). The defendant s prior Maryland conviction for fourth-degree burglary was not a crime of violence because although the statute proscribes conduct that presents a degree of risk of physical injury that is roughly similar to the risk of injury posed by generic burglary, the statute can be violated by negligent conduct. Therefore it is not similar in kind to the offenses enumerated in 4B1.2 of the Sentencing Guidelines. Aggravated Felony for Illegal Re-entry Decisions on Process and Evidentiary Issues Term Punishment by More than One Year determined by statute, not plea agreement United States v. Valdovinos, 760 F.3d 322 (4th Cir. 2014) (in determining whether offense giving rise to prior conviction was punishable by more than one year, it is statutory penalty, not parties plea agreement as to sentencing range, even where that range binds court, that controls determination). Decisions Regarding Predicate Offenses 1. Maryland arson Aggravated felony. Espinal-Andrades v. Holder, 777 F.3d 163 (4th Cir. 2015). 2. Virginia unauthorized use of motor vehicle NOT theft offense constituting aggravated felony. Castillo v. Holder, 776 F.3d 262 (4th Cir. 2015). 3. Virginia grand larceny NOT theft offense constituting Aggravated felony. Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) 4. California first-degree burglary Aggravated felony. United States v. Avila, 770 F.3d 1100 (4th Cir. 2014) (California s firstdegree burglary is crime of violence under 18 U.S.C. 16(b) for purposes of 8 U.S.C. 1101(a)(43)(F) (definition of crime of violence for aggravated felony ) and illegal reentry s guideline s 8-level bump for aggravated felony ) (N.B.: decision notes that conviction did not qualify as burglary under 1101(a)(43)(G) because California offense is defined more broadly than generic offense, and while not noted in decision, conviction did not qualify for 16- level bump for crime of violence because definition of term for that enhancement does not include residual clause language that is present in 16(b)). **Would apply to CO as well.** Hanes/Maguire COV Training: Recent Fourth Circuit Cases Page 2 FDFCDC 171
5. Maryland first-degree burglary NOT Crime of violence. United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014) (Maryland first-degree burglary is not crime of violence for purposes of illegal re-entry guideline s 16- level bump because Maryland courts have construed statute more broadly than Supreme Court s definition of generic burglary). **May apply to CO, but would need to consider whether conduct falls under residual clause.** 6. Maryland resisting arrest Not Crime of Violence. United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (concluding that Maryland offense does not include element of violent force because it includes offensive physical touching). **Would apply to CO as well.** 7. Maryland child sex abuse Not forcible sex offense constituting aggravated felony. United States v. Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013) (concluding that portion of child abuse statute specifically addressing child sex abuse creates an indivisible offense that is not categorically a generic forcible sex offense ). Hanes/Maguire COV Training: Recent Fourth Circuit Cases Page 3 FDFCDC 172
ETHICS: GAME SHOW POTPOURRI, ROUND II Kenneth P. Troccoli Aamra S. Ahmad DISCUSSION OVERVIEW I. Complaints Against Lawyers A. Professionalism Course 2014-2015 II. Ethics Assistance A. Ethics Hotline III. Lawyer Advertising A. RPC 1.6 (Confidentiality of Information) B. RPC 7.1 (Communications Concerning a Lawyer s Services) IV. Appeals A. RPC 1.2 (Scope of Representation) B. RPC 1.3 (Diligence) C. RPC 1.4 (Communication) D. RPC 3.1 (Meritorious Claims) E. Proposed LEO 1880 (Jan. 26, 2015) FDFCDC 173
V. Choice of Law A. RPC 8.3 (Reporting Misconduct) B. RPC 8.5 (Disciplinary Authority; Choice of Law) VI. Contraband, Perjury, and Fraud A. RPC 1.2 (Scope of Representation) B. RPC 1.6 (Confidentiality of Information) C. RPC 3.3 (Candor Toward the Tribunal) VII. Fairness to Opposing Party A. RPC 1.4 (Communication) B. RPC 1.16 (Terminating Representation) C. RPC 3.4 (Fairness to Opposing Party and Counsel) D. RPC 3.8 (Additional Responsibilities of a Prosecutor) FDFCDC 174
fotosearch.com www.vsb.org FDFCDC 175 ETHICS Vol. 63 August 2014 VIRGINIA LAWYER 13
Professionalism Course Book http://www.vsb.org/docs/pc/topic1.htm Page 1 of 6 3/31/2015 MAJOR DISCIPLINARY PROBLEMS 123 I. INTRODUCTION II. III. PATTERNS OF MISCONDUCT AND COMPLAINT AVOIDANCE OBLIGATION TO REPORT MISCONDUCT IV.. CONCLUSION I. INTRODUCTION The legal profession is under assault. Public opinion polls reveal lawyers to be in remarkably low standing. Surveys reflect that members of the public, while perhaps liking their personal lawyers, think poorly of lawyers in general. Poor ethical standards among too many in the profession have produced both an assault upon the integrity of the profession and a poor image of lawyers. Virginia lawyers must recognize that compliance with the requirements of the Virginia Rules of Professional Conduct (the Rules) requires more than honesty and a general ability to discern right from wrong. It is occasionally observed that the study of legal ethics is no more than an olfactory engagement with the established precepts of right and wrong: "if it doesn't smell right, don't do it." If legal ethics is so simple, however, how does one explain the large number of complaints filed each year against attorneys (1) or the high number of sanctions imposed against attorneys (2)? A suggested response is that legal ethics comprises a body of substantive law just as other fields of law. If this premise is correct, a lawyer's ability to comply with the requirements of the Rules will depend upon his or her diligence in studying the Rules, Comments and Legal Ethics Opinions, and his or her careful application of those requirements to his or her everyday practice. The Rules deal with legally required conduct, prohibiting conduct which is not just malum in se (prohibited because it is inherently or morally wrong), but also which is malum prohibitum (acts which are not inherently wrong in themselves but which are prohibited by law). The Supreme Court of Virginia held in Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.2d 63 (1988) that a lawyer cannot avoid discipline by claiming ignorance of a particular rule of conduct. Every lawyer in Virginia is expected to be fully aware of each and every disciplinary rule. The rules are public and are disseminated to the bar in the Virginia State Bar Professional Handbook. No lawyer can escape a finding of a violation or the imposition of an appropriate sanction by saying, I did not know I was violating the rules. Such an argument is nothing more than a recitation of the often made and always rejected excuse of ignorance of the law. 236 Va. at 444. This outline will introduce the patterns of misconduct most frequently cited in ethical complaints filed with the Virginia State Bar. The specific Rule violation involved in each of these patterns will be the subject of detailed discussion in other outlines of this publication. These are some of the terms used in professionalism issues: Comments - Commentary is published as an accompaniment to the Rules (see below) to explain more fully the requirements that they impose. Often, these comments include hypothetical situations, in which certain types of behavior are categorized as permissible or impermissible. They often also include goals for attorney behavior which, although not mandatory, are aspirational in nature. The Comments serve a function analogous to that of the Ethical Considerations (see below), under the former Virginia Code of Professional Responsibility. Disciplinary Rules - Rules promulgated by the Supreme Court of Virginia, in conjunction with Ethical Considerations (see below) and Canons (see below). These rules, which have been superseded by the Rules of Professional Conduct (see below), were largely based upon the Model Code of Professional Responsibility. Ethical Considerations - Aspirational statements promulgated by the Supreme Court of Virginia in conjunction with the former Disciplinary Rules (see above). These considerations did not impose requirements beyond those of the rules, but they did express guiding principles similar to the current comments to the rules. FDFCDC 176
Professionalism Course Book http://www.vsb.org/docs/pc/topic1.htm Page 2 of 6 3/31/2015 Rules of Professional Conduct - Rules promulgated by the Supreme Court of Virginia effective January 1, 2000. These rules are mandatory in character; that is, a lawyer must be in compliance with their respective requirements, or face disciplinary sanctions. Each is accompanied by Comments (see above). Legal Ethics Opinions (LEOs) - Opinions rendered by the Virginia State Bar Legal Ethics Committee. Some are granted specific approval by the Virginia Bar Council and the Virginia Supreme Court. These opinions are rendered in response to hypothetical opinion requests. They are numbered and published. Lawyer Advertising Opinions (LAOs) - The Virginia State Bar Standing Committee on Lawyer Advertising and Solicitation (SCOLA) renders opinions on issues pertaining to lawyer advertising and solicitation. Like LEOs, they are published. Rules of Professional Conduct - Rules promulgated by the Supreme Court of Virginia effective January 1, 2000. These rules are mandatory in character; that is, a lawyer must be in compliance with their respective requirements, or face disciplinary sanctions. Each is accompanied by Comments (see above). Legal Ethics Opinions (LEOs) - Opinions rendered by the Virginia State Bar Legal Ethics Committee. Some are granted specific approval by the Virginia Bar Council and the Virginia Supreme Court. These opinions are rendered in response to hypothetical opinion requests. They are numbered and published. Lawyer Advertising Opinions (LAOs) - The Virginia State Bar Standing Committee on Lawyer Advertising and Solicitation (SCOLA) renders opinions on issues pertaining to lawyer advertising and solicitation. Like LEOs, they are published. 1 In fiscal year 2012, there were 3,867 new inquiries filed with the Virginia State Bar. There are 29,591 lawyers licensed by the VSB as active members and 884 licensed as Virginia Corporate Counsel. This translates to approximately one complaint for every eight lawyers. 2 In fiscal year 2012, 223 sanctions were imposed involving 168 respondents. 3 Of the 1031 formal investigations opened by bar counsel in fiscal year 2012: 292 involved criminal practice, 219 involved family law, 59 involved general civil litigation cases, 43 involved real estate practice, 36 involved estate planning, 49 involved personal injury cases, 33 involved bankruptcy, and 24 involved immigration. back to top II. PATTERNS OF MISCONDUCT AND COMPLAINT AVOIDANCE A. Introduction For the past 15 years, the Virginia State Bar has maintained records of the complaints filed with it. These records reveal the frequency with which clients and others have complained about certain lawyer conduct and the areas of law involved in those complaints. Familiarity with these patterns of alleged misconduct may afford lawyers an opportunity to take appropriate steps to avoid the filing of complaints against them. B. Complaints by Area of Law 1. Frequency Complaints of lawyer misconduct filed with the Virginia State Bar have consistently been concentrated in certain subject matter areas of practice. For instance, complaints occur with much greater frequency in the areas of (a) Criminal Law (47%); (b) Divorce & Family Law; (c) Real Estate; (d) Personal Injury; (e) Collections; (f) Estate Planning/Administration; and (g) Bankruptcy. On the other hand, matters involving (a) Banking; (b) Corporations; (c) Environmental; (d) Insurance; (e) Professional Malpractice; (f) Securities; (g) Tax Law; (h) Patent and Trademark; and (i) Pension & Profit Sharing are much less frequently the basis of ethical complaints. Of the 1,006 formal investigations opened by bar counsel in 2010: 269 involved criminal practice. 184 involved family law, 84 involved general civil litigation FDFCDC 177
Professionalism Course Book http://www.vsb.org/docs/pc/topic1.htm Page 3 of 6 3/31/2015 cases, 67 involved real estate practice, 57 involved estate planning, and 56 involved personal injury cases. The incidence of complaints filed to initiate disciplinary proceedings in those areas of practice does not also reflect the incidence of professional malpractice actions or the relative risk of civil liability in each of those areas of practice. 2. Observations A number of factors may influence complaints arising out of a particular area of practice, particularly in those areas in which the frequency of complaints is very high. Among these factors are the following: a. Profile of Clients The practice areas most frequently giving rise to complaints are traditionally thought to involve clients who are less educated, less sophisticated and also less likely to have personal experience with the particular legal issues involved than clients in other practice areas, thereby increasing the likelihood that the client will blame his or her lawyer for undesired results or be unable to assess the competency with which services were rendered. b. Continuing Versus Limited Relationship The practice areas frequently giving rise to disciplinary proceedings generally involve limited attorney-client relationships, relating to single transactions or isolated proceedings. On the other hand, the practice areas infrequently involved in ethics complaints typically involve continuing, and often longstanding, attorney-client relationships. Factors which may be significant in this regard are (1) increased loyalty on both parts, (2) better knowledge and understanding of client's needs and (3) better lawyer responsiveness (i.e., client seen as important). c. Circumstances The areas most often giving rise to complaints are those in which clients are traditionally perceived to be more emotional, thereby increasing the likelihood that the client will have difficulty effectively assisting counsel and understanding communications from counsel, and that the client may transfer his or her emotions from the situation to the lawyer personally. For instance, a husband who feels that he has been betrayed by his wife and that she is trying to "take him for everything" may be more prone to distrust his attorney and allege conflict of interests, excessive fees or other misconduct on the lawyer's part. d. Common Complaints Against Lawyers 1. Failure to keep a client informed about the status of the engagement 2. Failure to meet deadlines 3. Misunderstandings regarding legal fees and costs 4. Incompetent legal services 5. Attorney/client conflict with personal interest 6. Attorney conflict with present/former client 7. Improper handling of trust funds 8. Disingenuous conduct with regard to a client, an adversary, or a court 9. Improper or prejudicial withdrawal as counsel 10. Improper communications with adverse party FDFCDC 178
Professionalism Course Book http://www.vsb.org/docs/pc/topic1.htm Page 4 of 6 3/31/2015 3. What can one do to avoid complaints? There is no guarantee that a lawyer will successfully conclude his or her legal career without a complaint being filed with the bar. Nevertheless, the following are some "tried and true" suggestions which should greatly reduce the possibility of a complaint. As an aside, these suggestions may also aid the lawyer in developing a reputation of competency and professionalism. a. Maintain an open line of communication with your clients. 1. Establish a clear understanding with the prospective client at the initial interview regarding (a) the scope of the representation and (b) the fees and costs associated with the engagement. 2. Use non- and disengagement letters. 3. Consult with clients on all significant matters in the case. Remember that the experience may be "old hat" to you, but will probably be unique to your client. When in doubt as to what may be significant, communicate. 4. Clients do not like to feel that they are being ignored. If you cannot return calls, delegate the calls to your assistant. 5. Inform clients of realistic and achievable goals, time expectations and your authority as an attorney; recognize your limitations and share those with your client. Do not make promises you cannot keep. b. Clearly explain your fees, costs, and billing practices at the inception of the engagement. 1. Use written and detailed fee agreements. Although written fee agreements are not required in Virginia, there is considerable wisdom in following the suggestions in Ethical Consideration 2-21 (see below), which are broader than the requirements of Rule 1.5(b). As soon as feasible after a lawyer has been employed, it is desirable that he or she reach a clear understanding with his or her client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of parties regarding the fee, particularly when it is contingent. 2. Maintain proper trust account records, expense records, and properly account to your client for fees, costs, and client funds placed in the trust account. Remember that the client is entitled to an adequate explanation of the fees and costs incurred during the engagement. DR 2-105; Rule 1.5(b). 3. Maintain detailed and adequate time records, and bill clients regularly with itemized bills. 4. Do not withhold services simply because your client has an outstanding bill. There are ways in which one may ethically withdraw from representation, but one surely asks that a complaint be filed if the attorney simply refrains from working until the bill is paid. Rule 1.16; LEOs 974, 996, 1325. 5. If there are questions regarding your bill, be available to discuss them with your client. 6. The Standing Committee on Legal Ethics has issued a compendium opinion (LEO 1606) regarding legal fees. 7. If the professional engagement is terminated, do not withhold the client s file as security for unpaid fees. The file should be delivered to the client with reasonable promptness. LEO 1690; Rule 1.16 (e). c. Accept employment only in those areas of law in which you are competent. FDFCDC 179
Professionalism Course Book http://www.vsb.org/docs/pc/topic1.htm Page 5 of 6 3/31/2015 Rule 1.1 states that: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Either decline employment in which you are not competent, refer the client to a competent lawyer or engage a competent practitioner to assist you. LEO 1406. Remember that the client must know of, and approve, the employment of additional counsel. Rule 1.5 (e) (1). d. Do not compromise your independent professional judgment. 1. Problems frequently arise when an attorney agrees to represent several clients in a matter when they have differing, or potentially differing, interests. Examples that come to mind are (a) partnership formations (LEO 1082); (b) driver/passenger automobile accidents (LEOs 299, 357, 566, 1033, 1134); (c) uncontested divorces with stipulated settlement agreements; and (d) multiple criminal defendants (LEO 1796). Rule 1.7 allows an attorney to represent multiple clients following full disclosure of any conflict by the attorney and informed consent by the client, and provided that the lawyer reasonably believes that he can adequately represent the interest of each. Nevertheless, such representation is fraught with potential peril. 2. Use a system to screen prospective clients for actual and potential conflicts of interest (LEO 1794 at n.2). A conflict gone bad will mean that not only must the lawyer withdraw from the latter representation, but he or she generally must withdraw from the existing representation as well. 3. If you do represent clients whose interests conflict, be sure to commit the disclosure of conflict to writing and have the client sign it. 4. Avoid business and personal financial dealings with your client. e. Bring the engagement to closure. 1. At the conclusion of the engagement, return all client property and any unearned fees or unused costs. It is also wise at this point to send a disengagement letter. LEOs 646, 1246. 2. If you have been discharged during the course of the representation, consult Rule 1.16. You must take all necessary measures to avoid foreseeable harm to the client. This admonition holds true if you have withdrawn as counsel. LEO 1246. back to top III. OBLIGATION TO REPORT MISCONDUCT DR 1-103 has been replaced by Rule 8.3(a), which states that "a lawyer having reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority. However, application of this Rule is governed by Rule 8.3(d): This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge who is a member of an approved lawyer s assistance program, or who is a trained intervenor or volunteer for such a program or committee, or who is otherwise cooperating in a particular assistance effort, when such information is obtained for the purposes of fulfilling the recognized objectives of the program. back to top IV. CONCLUSION FDFCDC 180
Professionalism Course Book http://www.vsb.org/docs/pc/topic1.htm Page 6 of 6 3/31/2015 Honesty and general personal integrity are certainly essential attributes of every good Virginia lawyer. However, as the other outlines in this publication emphasize, the Rules of Professional Conduct place a substantial premium upon knowledge of the Rules, Comments, Legal Ethics Opinions and the careful application of those requirements by Virginia lawyers to their everyday practice. Cf., Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.3d 63 (1988) (every lawyer in Virginia is expected to be fully aware of each and every disciplinary rule and cannot escape a finding of misconduct or the imposition of a sanction by claiming ignorance of the rules). Lawyers who are diligent in these areas will experience not only the personal satisfaction of playing a role in maintaining our profession as one of which we are proud to be a member, but will also find that the discipline and professionalism demanded by the Rules of Professional Conduct have provided him or her a foundation upon which a strong and rewarding practice may be built. back to top Copyright 2014 Virginia State Bar. All rights reserved. Updated 11/01/14 FDFCDC 181
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section Page 1 of 8 Home > Publications > Business Law Today > 2014 > BLT: January 2014 > 10 Tips for Avoiding Ethical Lapses When Using Social Media 10 Tips for Avoiding Ethical Lapses When Using Social Media Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath About the Authors: Christina Vassiliou Harvey is an associate at Lomurro Davison Eastman & Muñoz PA in Freehold, New Jersey. Mac R. McCoy is a shareholder at Carlton Fields Jorden Burt, P.A. in Tampa, Florida. Brook Sneath is a business development and marketing coordinator at Phelps Dunbar LLP in Tampa, Florida. You may be among the thousands of legal professionals flocking to social media sites like LinkedIn, Facebook, Twitter, or Google+ to expand your professional presence in the emerging digital frontier. If so, have you paused to consider how the ethics rules apply to your online activities? You should. Some of the ethical constraints that apply to your social media usage as a legal professional may surprise you. Moreover, legal ethics regulators across the country are beginning to pay close attention to what legal professionals are doing with social media, how they are doing it, and why they are doing it. The result is a patchwork quilt of ethics opinions and rule changes intended to clarify how the rules of professional conduct apply to social media activities. This article provides 10 tips for avoiding ethical lapses while using social media as a legal professional. The authors cite primarily to the ABA Model Rules of Professional Conduct (RPC) and select ethics opinions from various states. In addition to considering the general information in this article, you should carefully review the ethics rules and ethics opinions adopted by the specific jurisdiction (s) in which you are licensed and in which your law firm maintains an office. 1. Social Media Profiles and Posts May Constitute Legal Advertising Wolf of Wall Street? No, but the White-Collar Crime Committee Newsletter Has Been Released Free CLE in Two Days 3/26: Meet the Regulators Business Law Today Employee Benefits Mini-Theme Zeroes in on Health Law, Taxation, Protection, Privacy and Trusts Free CLE 3/26: Your Opportunity to Meet the Regulators From the Chair: Two Things to Know for March All News Many lawyers including judges and in-house counsel may not think of their social media profiles and posts as constituting legal advertisements. After all, legal advertising is limited to glossy FDFCDC 182 http://www.americanbar.org/publications/blt/2014/01/03_harvey.html 3/31/2015
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 2 of 8 3/31/2015 brochures, highway billboards, bus benches, late-night television commercials, and the back of the phonebook, right? Wrong. In many jurisdictions, lawyer and law firm websites are deemed to be advertisements. Because social media profiles (including blogs, Facebook pages, and LinkedIn profiles) are by their nature websites, they too may constitute advertisements. For example, the Florida Supreme Court recently overhauled that state s advertising rules to make clear that lawyer and law firm websites (including social networking and video sharing sites) are subject to many of the restrictions applicable to other traditional forms of lawyer advertising. Similarly, California Ethics Opinion 2012-186 concluded that the lawyer advertising rules in that state applied to social media posts, depending on the nature of the posted statement or content. 2. Avoid Making False or Misleading Statements The ethical prohibition against making false or misleading statements pervades many of the ABA Model Rules, including RPC 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons), 7.1 (Communication Concerning a Lawyer's Services), 7.4 (Communication of Fields of Practice and Specialization), and 8.4 (Misconduct), as well as the analogous state ethics rules. ABA Formal Opinion 10-457 concluded that lawyer websites must comply with the ABA Model Rules that prohibit false or misleading statements. The same obligation extends to social media websites. South Carolina Ethics Opinion 12-03, for example, concluded that lawyers may not participate in websites designed to allow nonlawyer users to post legal questions where the website describes the attorneys answering those questions as experts. Similarly, New York State Ethics Opinion 972 concluded that a lawyer may not list his or her practice areas under the heading specialties on a social media site unless the lawyer is appropriately certified as a specialist and law firms may not do so at all. Although most legal professionals are already appropriately sensitive to these restrictions, some social media activities may nevertheless give rise to unanticipated ethical lapses. A common example occurs when a lawyer creates a social media account and completes a profile without realizing that the social media platform will brand the lawyer to the public as an expert or a specialist or as having legal expertise or specialties. Under RPC 7.4 and equivalent state ethics rules, lawyers are generally prohibited from claiming to be a specialist in the law. The ethics rules in many states extend this restriction to use of terms like expert or expertise. Nevertheless, many professional social networking platforms (e.g., LinkedIn and Avvo) may invite lawyers to identify specialties or expertise in their profiles, or the sites may by default identify and actively promote a lawyer to other users as an expert or specialist in the law. This is problematic because the Business Law Section Spring Meeting April 16-18, 2015 San Francisco, CA Marriott Marquis and InterContinental San Francisco Business Law Section Annual Meeting September 17-19, 2015 Chicago, IL Hyatt Regency Chicago Registration will open in April 2015 All Events Business Bankruptcy March 2015 Consumer Financial Services February 2015 Corporate Compliance March 2015 Cyberspace Law March 2015 Legal Opinions Winter 2014 Middle Market and Small Business February 2015 Taxation March 2015 White-Collar Crime Winter 2015 All Newsletters Miscellaneous IT Related Legal News (MIRLN) 22 February - 14 March 2015 (v18.04) FDFCDC 183
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 3 of 8 3/31/2015 lawyer completing his or her profile cannot always remove or avoid these labels. 3. Avoid Making Prohibited Solicitations Solicitations by a lawyer or a law firm offering to provide legal services and motivated by pecuniary gain are restricted under RPC 7.3 and equivalent state ethics rules. Some, but not all, state analogues recognize limited exceptions for communications to other lawyers, family members, close personal friends, persons with whom the lawyer has a prior professional relationship, and/or persons who have specifically requested information from the lawyer. By its very design, social media allows users to communicate with each other or the public at-large through one or more means. The rules prohibiting solicitations force legal professionals to evaluate before sending any public or private social media communication to any other user whom the intended recipient is and why the lawyer or law firm is communicating with that particular person. For example, a Facebook friend request or LinkedIn invitation that offers to provide legal services to a non-lawyer with whom the sending lawyer does not have an existing relationship may very well rise to the level of a prohibited solicitation. BLT is a web-based publication drawing upon the best of the Section's resources, including featured articles and other information from around the Section. Stay informed on the latest business law practice news and information that will benefit you and your clients. Archive Contact Us Disclaimer Editorial Board In The Know Guidelines for Authors Legal professionals may also unintentionally send prohibited solicitations merely by using certain automatic features of some social media sites that are designed to facilitate convenient connections between users. For instance, LinkedIn provides an option to import e-mail address books to LinkedIn for purposes of sending automatic or batch invitations. This may seem like an efficient option to minimize the time required to locate and connect with everyone you know on LinkedIn. However, sending automatic or batch invitations to everyone identified in your e-mail address book could result in networking invitations being sent to persons who are not lawyers, family members, close personal friends, current or former clients, or others with whom a lawyer may ethically communicate. Moreover, if these recipients do not accept the initial networking invitation, LinkedIn will automatically send two follow up reminders unless the initial invitation is affirmatively withdrawn. Each such reminder would conceivably constitute a separate violation of the rules prohibiting solicitations. 4. Do Not Disclose Privileged or Confidential Information Social media also creates a potential risk of disclosing (inadvertently or otherwise) privileged or confidential information, including the identities of current or former clients. The duty to protect privileged and confidential client information extends to current clients (RPC 1.6), former clients (RPC 1.9), and prospective clients (RPC 1.18). Consistent with these rules, ABA Formal Opinion 10-457 provides that lawyers must obtain client consent before posting information about clients on websites. In a content- FDFCDC 184
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 4 of 8 3/31/2015 driven environment like social media where users are accustomed to casually commenting on day-to-day activities, including workrelated activities, lawyers must be especially careful to avoid posting any information that could conceivably violate confidentiality obligations. This includes the casual use of geotagging in social media posts or photos that may inadvertently reveal your geographic location when traveling on confidential client business. There are a few examples of lawyers who found themselves in ethical crosshairs after posting client information online. For example, in In re Skinner, 740 S.E.2d 171 (Ga. 2013), the Georgia Supreme Court rejected a petition for voluntary reprimand (the mildest form of public discipline permitted under that state s rules) where a lawyer admitted to disclosing information online about a former client in response to negative reviews on consumer websites. In a more extreme example, the Illinois Supreme Court in In re Peshek, M.R. 23794 (Ill. May 18, 2010) suspended an assistant public defender from practice for 60 days for, among other things, blogging about clients and implying in at least one such post that a client may have committed perjury. The Wisconsin Supreme Court imposed reciprocal discipline on the same attorney for the same misconduct. In re Disciplinary Proceedings Against Peshek, 798 N.W.2d 879 (Wis. 2011). Interestingly, the Virginia Supreme Court held in Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), that confidentiality obligations have limits when weighed against a lawyer s First Amendment protections. Specifically, the court held that although a lawyer s blog posts were commercial speech, the Virginia State Bar could not prohibit the lawyer from posting non-privileged information about clients and former clients without the clients consent where (1) the information related to closed cases and (2) the information was publicly available from court records and, therefore, the lawyer was free, like any other citizen, to disclose what actually transpired in the courtroom. 5. Do Not Assume You Can Friend Judges In the offline world, it is inevitable that lawyers and judges will meet, network, and sometimes even become personal friends. These real-world professional and personal relationships are, of course, subject to ethical constraints. So, too, are online interactions between lawyers and judges through social media (e.g., becoming Facebook friends or LinkedIn connections) subject to ethical constraints. Different jurisdictions have adopted different standards for judges to follow. ABA Formal Opinion 462 recently concluded that a judge may participate in online social networking, but in doing so must comply with the Code of Judicial Conduct and consider his or her ethical obligations on a case-by-case (and connection-byconnection) basis. Several states have adopted similar views, FDFCDC 185
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 5 of 8 3/31/2015 including Connecticut (Op. 2013-06), Kentucky (Op. JE-119), Maryland (Op. 2012-07), New York (Op. 13-39, 08-176), Ohio (Op. 2010-7), South Carolina (Op. 17-2009), and Tennessee (Op. 12-01). In contrast, states like California (Op. 66), Florida, Massachusetts (Op. 2011-6), and Oklahoma (Op. 2011-3) have adopted a more restrictive view. Florida Ethics Opinion 2009-20, for example, concluded that a judge cannot friend lawyers on Facebook who may appear before the judge because doing so suggests that the lawyer is in a special position to influence the judge. Florida Ethics Opinion 2012-12 subsequently extended the same rationale to judges using LinkedIn and the more recent Opinion 2013-14 further cautioned judges about the risks of using Twitter. Consistent with these ethics opinions, a Florida court held that a trial judge presiding over a criminal case was required to recuse himself because the judge was Facebook friends with the prosecutor. See Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). 6. Avoid Communications with Represented Parties Under RPC 4.2 and equivalent state ethics rules, a lawyer is forbidden from communicating with a person whom the lawyer knows to be represented by counsel without first obtaining consent from the represented person s lawyer. Under RPC 8.4(a) and similar state rules, this prohibition extends to any agents (secretaries, paralegals, private investigators, etc.) who may act on the lawyer s behalf. These bright-line restrictions effectively prohibit lawyers and their agents from engaging in social media communications with persons whom the lawyer knows to be represented by counsel. This means that a lawyer may not send Facebook friend requests or LinkedIn invitations to opposing parties known to be represented by counsel in order to gain access to those parties private social media content. In the corporate context, San Diego County Bar Association Opinion 2011-2 concluded that high-ranking employees of a corporation should be treated as represented parties and, therefore, a lawyer could not send a Facebook friend request to those employees to gain access to their Facebook content. On the other hand, viewing publicly accessible social media content that does not precipitate communication with a represented party (e.g., viewing public blog posts or Tweets) is generally considered fair game. That was the conclusion reached by Oregon Ethics Opinions 2013-189 and 2005-164, which analogized viewing public social media content to reading a magazine article or a published book. 7. Be Cautious When Communicating with Unrepresented Third Parties FDFCDC 186
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 6 of 8 3/31/2015 Underlying RPC 3.4 (Fairness to Opposing Party and Counsel), 4.1 (Truthfulness in Statements to Others), 4.3 (Dealing with Unrepresented Person), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct), and similar state ethics rules is concern for protecting third parties against abusive lawyer conduct. In a social media context, these rules require lawyers to be cautious in online interactions with unrepresented third parties. Issues commonly arise when lawyers use social media to obtain information from third-party witnesses that may be useful in a litigation matter. As with represented parties, publicly viewable social media content is generally fair game. If, however, the information sought is safely nestled behind the third party s privacy settings, ethical constraints may limit the lawyer s options for obtaining it. Of the jurisdictions that have addressed this issue, the consensus appears to be that a lawyer may not attempt to gain access to non -public social media content by using subterfuge, trickery, dishonesty, deception, pretext, false pretenses, or an alias. For example, ethics opinions in Oregon (Op. 2013-189), Kentucky (Op. KBA E-434), New York State (Op. 843), and New York City (Op. 2010-2) concluded that lawyers are not permitted (either themselves or through agents) to engage in false or deceptive tactics to circumvent social media users privacy settings to reach non-public information. Ethics opinions by other bar associations, including the Philadelphia Bar Association (Op. 2009-02) and the San Diego County Bar Association (Op. 2011-2), have gone one step further and concluded that lawyers must affirmatively disclose their reasons for communicating with the third party. 8. Beware of Inadvertently Creating Attorney-Client Relationships An attorney-client relationship may be formed through electronic communications, including social media communications. ABA Formal Opinion 10-457 recognized that by enabling communications between prospective clients and lawyers, websites may give rise to inadvertent lawyer-client relationships and trigger ethical obligations to prospective clients under RPC 1.18. The interactive nature of social media (e.g., inviting and responding to comments to a blog post, engaging in Twitter conversations, or responding to legal questions posted by users on a message board or a law firm s Facebook page) creates a real risk of inadvertently forming attorney-client relationships with non-lawyers, especially when the objective purpose of the communication from the consumer s perspective is to consult with the lawyer about the possibility of forming a lawyer-client relationship regarding a specific matter or legal need. Of course, if an attorney-client relationship attaches, so, too, do the attendant obligations to maintain the confidentiality of client information and to avoid conflicts of interest. FDFCDC 187
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 7 of 8 3/31/2015 Depending upon the ethics rules in the jurisdiction(s) where the communication takes place, use of appropriate disclaimers in a lawyer s or a law firm s social media profile or in connection with specific posts may help avoid inadvertently creating attorney-client relationships, so long as the lawyer s or law firm s online conduct is consistent with the disclaimer. In that respect, South Carolina Ethics Opinion 12-03 concluded that [a]ttempting to disclaim (through buried language) an attorney-client relationship in advance of providing specific legal advice in a specific matter, and using similarly buried language to advise against reliance on the advice is patently unfair and misleading to laypersons. 9. Beware of Potential Unauthorized Practice Violations A public social media post (like a public Tweet) knows no geographic boundaries. Public social media content is accessible to everyone on the planet who has an Internet connection. If legal professionals elect to interact with non-lawyer social media users, then they must be mindful that their activities may be subject not only to the ethics rules of the jurisdictions in which they are licensed, but also potentially the ethics rules in any jurisdiction where the recipient(s) of any communication is(are) located. Under RPC 5.5 and similar state ethics rules, lawyers are not permitted to practice law in jurisdictions where they are not admitted to practice. Moreover, under RPC 8.5 and analogous state rules, a lawyer may be disciplined in any jurisdiction where he or she is admitted to practice (irrespective of where the conduct at issue takes place) or in any jurisdiction where he or she provides or offers to provide legal services. It is prudent, therefore, for lawyers to avoid online activities that could be construed as the unauthorized practice of law in any jurisdiction(s) where the lawyer is not admitted to practice. 10. Tread Cautiously with Testimonials, Endorsements, and Ratings Many social media platforms like LinkedIn and Avvo heavily promote the use of testimonials, endorsements, and ratings (either by peers or consumers). These features are typically designed by social media companies with one-size-fits-all functionality and little or no attention given to variations in state ethics rules. Some jurisdictions prohibit or severely restrict lawyers use of testimonials and endorsements. They may also require testimonials and endorsements to be accompanied by specific disclaimers. South Carolina Ethics Opinion 09-10, for example, provides that (1) lawyers cannot solicit or allow publication of testimonials on websites and (2) lawyers cannot solicit or allow publication of endorsements unless presented in a way that would not be misleading or likely to create unjustified expectations. The opinion also concluded that lawyers who claim their profiles on social media sites like LinkedIn and Avvo (which include functions for endorsements, testimonials, and ratings) are responsible for FDFCDC 188
10 Tips for Avoiding Ethical Lapses When Using Social Media Business Law Section http://www.americanbar.org/publications/blt/2014/01/03_harvey.html Page 8 of 8 3/31/2015 conforming all of the information on their profiles to the ethics rules. Lawyers must, therefore, pay careful attention to whether their use of any endorsement, testimonial, or rating features of a social networking site is capable of complying with the ethics rules that apply in the state(s) where they are licensed. If not, then the lawyer may have no choice but to remove that content from his or her profile. Conclusion Despite the risks associated with using social media as a legal professional, the unprecedented opportunities this revolutionary technology brings to the legal profession to, among other things, promote greater competency, foster community, and educate the public about the law and the availability of legal services justify the effort necessary to learn how to use the technology in an ethical manner. E-mail technology likely had its early detractors and, yet, virtually all lawyers are now highly dependent on e-mail in their daily law practice. Ten years from now, we may similarly view social media as an essential tool for the practice of law. FDFCDC 189
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 LEO 1880: OBLIGATIONS OF A COURT-APPOINTED ATTORNEY TO ADVISE HIS INDIGENT CLIENT OF THE RIGHT OF APPEAL FOLLOWING CONVICTION UPON A GUILTY PLEA; DUTY OF COURT-APPOINTED ATTORNEY TO FOLLOW THE INDIGENT CLIENT S INSTRUCTION TO APPEAL FOLLOWING A GUILTY PLEA WHEN THE ATTORNEY BELIEVES THE APPEAL WOULD BE FRIVOLOUS. DRAFT 1/26/15. QUESTIONS PRESENTED: 1. Is it ethically permissible for a court-appointed attorney 1 to file an appeal following his client s guilty plea 2 if the attorney believes such appeal to be frivolous? 2. Is a court-appointed attorney ethically obligated to advise his indigent client that the client has a right of appeal to a conviction or sentence based on a plea of guilty when the attorney believes that no grounds for appeal exist? 3. Must a court-appointed attorney petition for an appeal if his client so requests when the attorney believes such appeal would be frivolous? APPLICABLE RULES OF PROFESSIONAL CONDUCT: Rules of Professional Conduct 1.3(a) 3, 1.4(b) 4, and 3.1 5 apply to the issues addressed in this opinion. 1 All references to court-appointed attorneys in this Opinion shall be deemed to include public defenders. 2 All references to guilty pleas in this Opinion shall be deemed to include pleas of nolo contendere. 3 RULE 1.3. Diligence (a) A lawyer shall act with reasonable diligence and promptness in representing a client. 4 RULE 1.4. Communication (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 5 RULE 3.1. Meritorious Claims And Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 1 FDFCDC 190
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 DISCUSSION: The Committee has determined that the answer to the three questions set forth above is yes. An appeal from a conviction or sentence flowing from a guilty plea will more often than not be groundless. However, a court-appointed attorney instructed by his indigent client to petition for an appeal must do so even when the attorney deems such appeal to be frivolous. The attorney does not violate Rule 3.1 by so doing. Federal constitutional and Virginia law compel such action, and deprive the court-appointed attorney of the authority to decline to follow his client s instruction. Beyond that, as detailed hereafter, the constitutionally mandated procedures applicable to frivolous appeals provide that the indigent s attorney assert that, in his opinion, the appeal lacks merit and move to withdraw from representation. Thus, the attorney is at no risk of violating Rule 3.1 because he is mandated by law to file a frivolous appeal if requested by the client and the relevant pleadings will contain the attorney s candid assessment that the appeal lacks merit. The law is well settled that when an appeal is filed on behalf of an indigent client by a courtappointed attorney who believes that his client s appeal is frivolous, it is for the court, not the attorney, to determine that the client s appeal has no merit. In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court held that The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. *** Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. [Footnote omitted.] His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court not counsel then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the 2 FDFCDC 191
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 indigent the assistance of counsel to argue the appeal. [386 U.S. at 744; emphasis supplied.] The Court of Appeals of Virginia in Akbar v. Commonwealth, 7 Va. App. 611, 376 S.E.2d 545 (1989), embraced the constitutional requirement identified in Anders and set forth the very language quoted above in its own opinion. See, Akbar, supra, 376 S.E.2d at 546. Anders and Akbar are specifically cited and the precepts of those rulings are embedded in Rule 5A:12(h) of the Rules of the Supreme Court of Virginia for appeals to the Court of Appeals of Virginia: Rule 5A:12. Petition for Appeal. (h) Procedure for an Anders appeal. If counsel for appellant finds his client s appeal to be without merit, he must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Akbar v. Commonwealth, 7 Va. App. 611, 376 S.E.2d 545 (1989). In compliance therewith, counsel is required to file (1) a petition for appeal which refers to anything in the record which might arguably support the appeal and which demonstrates to the Court of Appeals counsel s conscientious examination of the merits of the appeal; (2) a motion for leave to withdraw as counsel; and (3) a motion for an extension of time to allow the appellant to file a supplemental petition for appeal. The petition for appeal and the motion for leave to withdraw as counsel should specifically cite to Anders. All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. The Court of Appeals will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw as counsel until this Court considers the case in its entirety, including any supplemental petition for appeal that may be filed. The Supreme Court of Virginia has determined that, while not constitutionally mandated, an indigent appellant is by statute entitled to a court-appointed attorney beyond his first-level appeal to the Court of Appeals of Virginia and that the appointed attorney must discharge his duties consistent with Anders when faced with an appeal to the Supreme Court of Virginia which the attorney believes is wholly frivolous. 6 The provisions of Rule 5:17(h), governing appeals to the 6 See, Dodson v. Director, Dept. of Corrections, 233 Va. 303, 355 S.E.2d 573 (1987) and Brown v. Warden of Virginia State Penitentiary, 238 Va. 551, 385 S.E.2d 587 (1989). 3 FDFCDC 192
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 Supreme Court of Virginia, track the provisions of the Rule set forth above regarding petitions for appeal to the Court of Appeals of Virginia. 7 Both such Rules unquestionably and clearly anticipate the inevitable frivolous appeals filed by court-appointed attorneys for indigent clients consistent with those clients constitutional and statutory rights. The Rules codify the method contained in Anders and Akbar by which appeals deemed non-meritorious by court-appointed appellate counsel are to be handled by those attorneys and the court. There is, however, opportunity for confusion, occasioned by Virginia caselaw and the suggested contents of a circuit court plea colloquy, between waiver of the right to appeal and waiver of grounds for appeal. For example, in Stokes v. Slayton, 340 F.Supp. 190 (W.D. Va., 1972) a United States District Court in Virginia held that An appeal does not lie from a conviction entered upon a valid plea of guilty, unless the trial court either lacked jurisdiction or imposed a sentence which exceeds that authorized by law. [340 F.Supp. at 192; emphasis added.] Following Rule 3A:1 et seq. of the Rules of the Supreme Court of Virginia appears an Appendix of Forms. Form 6 contains Suggested Questions to Be Put by the Court to an Accused Who Has Pleaded Guilty (Rule 3A:8) Question 19 reads as follows: 19. Do you understand that, by pleading guilty, you may waive any right to appeal the decision of this court? [The judge may, but need not, inform the defendant that a guilty plea does not 7 Rule 5:17. Petition for Appeal. (h) Procedure for an Anders appeal. If counsel for appellant finds appellant s appeal to be without merit, counsel must comply with the requirements of Anders v. California, 386 U.S. 738 (1967), and Brown v. Warden of Virginia State Penitentiary, 238 Va. 551, 385 S.E.2d 587 (1989). In compliance therewith, counsel is required to file (1) a petition for appeal which refers to anything in the record which might arguably support the appeal and which demonstrates to this Court counsel s conscientious examination of the merits of the appeal; (2) a motion for leave to withdraw as counsel; and (3) a motion for an extension of time to allow the appellant to file a supplemental petition for appeal. The petition for appeal and the motion for leave to withdraw as counsel should specifically cite to Anders. All three pleadings must be served on opposing counsel and upon the client and must contain a certificate providing evidence of such service. This Court will rule upon the motion for extension of time upon its receipt, but will not rule on the motion to withdraw until this Court considers the case in its entirety, including any supplemental petition for appeal that may be filed. 4 FDFCDC 193
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 waive the right to appeal lack of jurisdiction or imposition of an impermissible sentence.] [Emphasis supplied.] The Committee believes that both Stokes and Question 19 do not take into account the difference between a waiver of the right to petition for appeal and a waiver of the grounds for appeal. The distinction is important because in its absence a potential appellant and his lawyer may conclude that access to an appellate court is unavailable, when, in fact, that is not the case. Thus, even when a court-appointed attorney believes his indigent client s appeal would be wholly frivolous, he is not free to reject his client s request for an appeal following a guilty plea by maintaining that the client has waived the right to appeal. 8 An appeal from a conviction and sentence following a plea of guilty may be every bit as frivolous as an appeal following an error-free trial at which the client has confessed in open court to the commission of the crime charged. The procedures called for in Anders and Akbar are applicable to an appeal of any conviction, regardless of how and why the final order of conviction was issued. The right to petition for appeal in criminal cases is not reserved only for those persons convicted of a crime following trial upon a plea of not guilty. Virginia, by statute, permits any aggrieved party to present a petition for appeal to the Court of Appeals of Virginia from any final conviction of a crime entered by a circuit court. 9 The provision by its terms necessarily includes petitions for appeal from convictions which were the outgrowth of a guilty plea. It may be that the record of a case on appeal reveals that a defendant did not knowingly and voluntarily 10 waive his constitutional rights at the time his guilty plea was accepted by the 8 See, Miles v. Sheriff of Va. Beach City Jail, 266 Va. 110, 581 S.E.2d 191 (2003): Although the range of potential grounds for appeal following a guilty plea is limited in Virginia, a defendant who has pled guilty still retains the statutory right to file a notice of appeal and present a petition for appeal to the Court of Appeals of Virginia. See Code 17.1-406 and - 407. 9 17.1-406. Petitions for appeal; cases over which Court of Appeals does not have jurisdiction. A. Any aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of a traffic infraction or a crime***. 10 Rule 3A:8(b) of the Rules of the Supreme Court of Virginia provides as follows: Rule 3A:8. Pleas. (b) Determining Voluntariness of Pleas of Guilty or Nolo Contendere. (1) A circuit court shall not accept a plea of guilty or nolo contendere to a felony charge without first determining that the plea is made voluntarily with an understanding of the nature of 5 FDFCDC 194
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 133 134 135 136 137 138 court. 11 It may also reveal error occurring after the plea was accepted, such as with regard to the adjudication or imposition of a sentence. In 2004, the Virginia General Assembly created the Virginia Indigent Defense Commission. The Commission oversees and supports lawyers who serve as public defenders and court-appointed attorneys representing indigent criminal defendants. The Commission has published Standards of Practice for Indigent Defense Counsel. The Standards are legislatively mandated, 12 and court- the charge and the consequences of the plea. (2) A circuit court shall not accept a plea of guilty or nolo contendere to a misdemeanor charge except in compliance with Rule 7C:6. 11 The entry of a guilty plea involves the waiver of rights guaranteed by the federal constitution. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that: Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. ***. Second, is the right to trial by jury. ***. Third, is the right to confront one's accusers. *** We cannot presume a waiver of these three important federal rights from a silent record. What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought, and forestalls the spin-off of collateral proceedings that seek to probe murky memories. [395 U.S. at 243, 244; emphasis supplied; citations and footnotes omitted.] 12 19.2-163.01. Virginia Indigent Defense Commission established; powers and duties. A. The Virginia Indigent Defense Commission (hereinafter Indigent Defense Commission or Commission) is established. The Commission shall be supervisory and shall have sole responsibility for the powers, duties, operations, and responsibilities set forth in this section. The Commission shall have the following powers and duties: *** 4. To establish official standards of practice for court-appointed counsel and public defenders to follow in representing their clients, and guidelines for the removal of an attorney from the official list of those 6 FDFCDC 195
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 appointed attorneys who do not comply with them may be removed from the list of those eligible to serve in such capacity. The Comment to Standard 1.0 ( The Lawyer-Client Relationship ) contains the following statement: An indigent client is entitled to take an appeal and a lawyer must, if the client so requests, protect the client s right to an appeal even though grounds for an appeal do not exist. The statement, however, conflicts with the Comment to Standard 6.4 ( Entry of the Plea Before the Court ): Counsel should inform the client and make sure that the client understands that by entering a plea of guilty, the client will be waiving the following rights and privileges: *** (g) Right to appeal. [Emphasis supplied.] The cited portion of the Comment is not strictly accurate, for the same reason that the contents of Question 19 are not strictly accurate: The distinction between a right to appeal and grounds for appeal is not taken into account. Reversible error may occur during the proceedings in which the guilty plea is tendered and accepted; error may be committed in proceedings which follow the tender and acceptance of the plea; and Anders and Akbar do not permit courtappointed attorneys for an indigent client to have the last word on whether an appeal before an appellate court is frivolous. Thus, an indigent defendant who enters a plea of guilty or nolo contendere does not waive a right to appeal, even if such right is rendered hollow because the appeal would be frivolous due to a waiver of grounds for appeal. Standard 9.2 also confuses rights and grounds, in connection with a court-appointed attorney s duty to inform a client regarding his right to appeal: Standard 9.2 Right to Appeal Counsel shall inform the client of his or her right to appeal the judgment of the court, unless such right has been knowingly, intelligently, and voluntarily waived, and the action that must be taken to perfect an appeal. If the client advises counsel that he or she wishes to note an appeal, counsel shall take all necessary steps to perfect such appeal in a timely fashion pursuant to the Rules of the Supreme Court of Virginia. If trial counsel is relieved in favor of other appellate counsel, trial counsel shall cooperate in providing information to appellate counsel concerning the proceedings in the trial court. [Emphasis supplied.] qualified to receive court appointments and to notify the Office of the Executive Secretary of the Supreme Court of any attorney whose name has been removed from the list. *** 7 FDFCDC 196
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 The Committee believes that as long as Anders and Akbar remain the law which sets forth the minimum constitutional standards due indigent appellants, a court-appointed attorney has a duty to advise his client regarding the availability of a petition for appeal, even if it were frivolous and pertains to a conviction based on guilty plea. The Committee further believes that Standard 9.2 should not be read to excuse a court-appointed attorney from the ethical obligation to advise the client of the availability of an appeal. The Standards incorporate by reference the Virginia Rules of Professional Conduct. Thus, consistent with Rule 1.4(b), the Standards must be read to require that a court-appointed attorney advise his indigent client of his constitutional right to independent appellate court scrutiny under Anders and Akbar 13. An indigent client s informed decision regarding an appeal requires that he know that by filing an Anders brief the court-appointed attorney activates an obligation of the appellate court to examine on its own the record of the client s case, affords the client himself an opportunity to present appellate issues to the court, and calls for the court to determine if there are any grounds for appeal upon which the court-appointed attorney should be ordered to proceed. There is no practical, realistic way for a court-appointed attorney to determine in every case whether his indigent client has made an informed decision regarding an appeal without first advising the client of the right to appeal, even when such an appeal would be frivolous. Of course, in the case of a guilty plea, followed by conviction and imposition of an anticipated sentence, a court-appointed client would rarely choose to embark on a course to unravel his conviction and sentence via an appeal only to expose himself to a more severe outcome on retrial or resentencing. After such an advisement, the court-appointed attorney must follow the client s direction and take the steps required both by Standard 9.2 and Rule of Professional Conduct 1.3(a) to perfect the client s appeal should the client wish to appeal. 13 The United States Supreme Court in Roe v Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) comprehensively addressed the question of how a court must determine whether an attorney who failed to consult with her client regarding an appeal had rendered ineffective assistance. The Court stated: We *** hold that counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. The Committee believes that a Virginia attorney may violate Rule 1.4(b) if he fails to advise and consult with his court-appointed client regarding the right of appeal, even if such failure to consult would not rise to the level of ineffective assistance of counsel. 8 FDFCDC 197
This is a DRAFT OPINION and may be revised or withdrawn until finalized by the Ethics Committee 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 Standard 10.2.1 is consonant with the obligations imposed by Standard 9.2 and Rule 1.3(a), and addresses court-appointed attorney s obligation to file a further appeal to the Supreme Court of Virginia unless the client has expressed his desire to abandon such an appeal. Standard 10.2.1 Scope of Appellate Representation *** (d) Where instructed by the client to do so, counsel must appeal a criminal conviction or revocation of a suspended sentence to the Court of Appeals of Virginia and to the Supreme Court of Virginia. If a client has not explicitly elected to appeal to the Supreme Court of Virginia after losing an appeal in the Court of Appeals of Virginia, and counsel has not learned that the client desires to abandon his appeal, counsel should continue to prosecute the client s appeal in the Supreme Court of Virginia.*** [Emphasis supplied.] Consistent with the law, this Standard deprives the court-appointed attorney of any authority to decline the client s instruction to appeal, and makes no exception for those appeals which lack merit and follow a guilty plea. A Comment to this provision makes this crystal clear: COMMENT: While a guilty plea waives most appellate issues, counsel is nevertheless obligated to appeal from a guilty plea if the client so instructs. Miles v. Sheriff of Va. Beach City Jail, 266 Va. 110, 581 S.E.2d 191 (2003). Limited issues that can be raised following a guilty plea include a sentence that exceeds the statutory maximum or lack of subject matter jurisdiction. If there are no appealable issues, counsel may file an Anders petition. [Emphasis supplied.] CONCLUSION: A court-appointed attorney must file petitions for appeal to the Court of Appeals of Virginia and to the Supreme Court of Virginia when directed to do so by an indigent client, even when such an appeal is to a conviction entered following a guilty plea, and is deemed frivolous by the attorney. A court-appointed attorney must advise his indigent client that he has a right to appeal, even under those circumstances. A court-appointed attorney who follows the procedure set forth in the Rules of Court which embody the constitutional requirements of Anders and Akbar does not violate the ethical prohibition regarding non-meritorious claims and contentions. 9 FDFCDC 198
Geremy C. Kamens Acting Federal Public Defender FEDERAL PUBLIC DEFENDER EASTERN DISTRICT OF VIRGINIA 1650 KING STREET, SUITE 500 ALEXANDRIA, VIRGINIA 22314 TEL: (703) 600-0800 FAX: (703) 600-0880 Karen A. Gould Executive Director Virginia State Bar 1111 East Main Street, Suite 700 Richmond, VA 23219-3565 March 3, 2015 Re: Comment in Opposition to Proposed Legal Ethics Opinion 1880 Dear Ms. Gould and Members of the Standing Committee on Legal Ethics: On behalf of the Federal Public Defender s Office for the Eastern District of Virginia, I write to OPPOSE the adoption of proposed Legal Ethics Opinion 1880 by the Ethics Committee as presently drafted. There are 24 attorneys in our Office who are licensed to practice in Virginia and who are subject to the Virginia Rules of Professional Conduct. In addition, our Office s mission includes the provision of training to scores of private attorneys who accept court appointments under the federal Criminal Justice Act, 18 U.S.C. 3006A. We oppose the adoption of LEO 1880 as written because it would present Virginia attorneys who practice in federal court with an untenable choice between complying with their ethical obligations and following federal rules and caselaw. With regard to the Committee s answers to the first and third questions presented in the proposed LEO, we agree that an attorney must advise and consult with the clients about the appeals process, and must file an appeal when the client so directs, even if there is an appeal waiver in the case. Our concern is with the Committee s response to Question 2, because the distinction the proposed LEO draws between the right to appeal and grounds for appeal is inconsistent with federal practice. Instead, for the reasons discussed below, we believe a better focus is on grounds for appeal that are inside or outside the scope of a valid waiver. The considerations for indigent clients who wish to appeal are largely similar in federal and state courts. Federal criminal defendants have a statutory right to appeal pursuant to 18 U.S.C. 3742. Indigent defendants have a right to appointed counsel in their direct appeal. Douglas v. California, 372 U.S. 353, 357-58 (1963); see 18 U.S.C. 3006A(a)(1)(H), (c), (d)(2). As part of their representation of indigent clients, counsel have the duty to file a notice of appeal if so instructed. United States v. Poindexter, 492 F.3d 263, 269 (4th Cir. 2007) (citing Roe v. Flores- Ortega, 528 U.S. 470, 477 (2000)). This is true even if an attorney believes the appeal has no merit. United States v. Peak, 992 F.3d 39, 42 (4th Cir. 1993) (holding that a criminal defense attorney s failure to file a notice of appeal when requested by his client deprives the defendant of his Sixth Amendment right to the assistance of counsel, notwithstanding that the lost appeal may not have had FDFCDC 199
a reasonable probability of success ). When the attorney believes there are no meritorious issues for appeal, counsel should file a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The source of the conflict between federal practice and proposed LEO 1880 arises when a client has waived the right to appeal his conviction and/or sentence, typically through a plea agreement with the government. It is well settled that in federal court, a criminal defendant has the ability to waive the right to appeal. See United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990)); see also Flores-Ortega, 528 U.S. at 480 (noting that one factor in determining duty to consult with client about appeal is whether a client expressly reserved or waived some or all appeal rights ). Likewise, the federal rules governing plea and sentencing hearings use the term right to appeal, and contemplate that this right may be waived. See Fed. R. Crim. P. 11(b)(1)(N) (providing court s obligation to advise and question defendant in plea hearing as to the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence ); Fed. R. Crim. P. 32(j) (providing court s obligation at sentencing to advise defendant about right to appeal). Consistent with this authority, the standard plea agreement in the Eastern District of Virginia includes a waiver of the right to appeal the conviction and sentence. The Fourth Circuit routinely dismisses appeals when the government invokes the waiver of the right to appeal. See, e.g., United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Proposed LEO 1880, however, departs from this accepted federal court practice by introducing a distinction between the right to appeal and grounds for appeal. According to the proposed LEO, an attorney violates his ethical duties by advising a client that the client has waived the right to appeal, because, in essence, the right to appeal cannot be waived. In the Committee s view, a defendant may waive some or all grounds for an appeal, but as long as the defendant retains the ability to lodge an appeal, even a meritless one, the defendant has not waived the right to appeal. See Proposed LEO 1880 at lines 118-21. This paradigm clearly conflicts with language used in federal court for decades. It rests on an overly formalistic construction of the term right to appeal, in that it depends solely on a defendant s mere physical ability to file a document, regardless of whether the defendant has signed a contract agreeing to forego that filing. In filing an appeal in the face of a waiver, a federal defendant has performed an action he has no legal right to take. The Fourth Circuit will still docket the appeal like any other, and the government may even decline to rely on the waiver provision, but the fact remains that a federal defendant who appeals after a waiver has breached his promise. 1 1 The consequences of the breach could be severe. As the Fourth Circuit has explained, where a defendant has signed an appeal waiver, the Government can utilize one of three options: it can (1) raise the appeal waiver issue; (2) assert that it is no longer bound by the plea agreement because the defendant s appeal amounts to a breach of that agreement; or (3) decline to rely on the appeal waiver and address the merits. United States v. Hairston, 754 F.3d 258, 260 (4th Cir. 2014) (citations and quotations omitted). If the government chooses option (2), it could renew charges it had dismissed as part of the plea agreement, and could use the statement of facts signed in connection with the plea agreement against the defendant, as the agreement typically waives the protections of Federal Rule of Evidence 410. 2 FDFCDC 200
In order to comply with the federal rules and caselaw, counsel in these situations must advise clients that they have waived their right to appeal, and counsel must ensure that clients understand the consequences of appealing despite the waiver. Similarly, a judge taking a plea is obligated to advise and question the defendant about the waiver of the right to appeal. It would only introduce confusion into the process if counsel then had to explain to the client that he or she had not really waived the right to appeal, notwithstanding the language in the plea agreement and the admonition from the judge. The better course, we believe, is to draw a distinction not between the right/grounds for appeal, but rather between grounds that are inside or outside the scope of the waiver. Certain grounds cannot be waived: for example, prosecutorial misconduct, ineffective assistance of counsel, or a sentence in excess of the statutory maximum. Other grounds may be expressly reserved by a carve-out from the waiver, such as in a conditional plea reserving the right to appeal the denial of a suppression motion. The right to appeal on any other ground is indeed waived. Under this approach, attorneys can advise clients consistent with the federal rules that they are waiving their right to appeal on any ground included in the waiver, and are only free to appeal based on claims falling outside the waiver s scope. To be clear, we agree with the Committee that counsel should advise and consult with their clients about the appeals process, and must file an appeal when the client so directs, even if the client has waived the right to appeal in a plea agreement. Further, we agree that when counsel believes such an appeal presents no meritorious issues, counsel should file an Anders brief. Thus, we are in general agreement with the Committee s answers to the first and third questions presented in proposed LEO 1880. With respect to the second question, however, the proposed LEO should be modified so that it is not inconsistent with federal rules. A criminal defendant can waive the right to appeal in federal court. The language in proposed LEO 1880 suggesting otherwise risks confusing and prejudicing clients by leaving them misinformed about the true consequences of an appeal waiver. Moreover, it would put Virginia attorneys who practice in federal court in an impossible conflict between their ethical obligations and their duties under federal rules. At a minimum, the proposed LEO should be revised to clarify that it only applies to counsel practicing in state court, and is not relevant to counsel advising their clients about a waiver of the right to appeal in federal court. For these reasons, we oppose the adoption of LEO 1880 as currently proposed, and we urge the Committee to revisit the issue with federal practitioners in mind. Thank you for your consideration of our comments. Sincerely, /s/ Geremy C. Kamens Geremy C. Kamens 3 FDFCDC 201
ETHICS UPDATE 2012 Hot Topics in Legal Ethics James M. McCauley, Ethics Counsel, Virginia State Bar VaCLE ETHICS UPDATE 2012: HOT TOPICS IN LEGAL ETHICS...2 1. ISSUES RELATING TO THE ETHICAL DUTY OF CONFIDENTIALITY...2 A. WHAT INFORMATION IS PROTECTED AS CONFIDENTIAL UNDER RULE 1.6?...2 B. DOES THE DUTY OF CONFIDENTIALITY APPLY TO FORMER CLIENTS?...2 C. DISCLOSUREOF CONFIDENTIAL INFORMATION WHEN CLIENT ALLEGES INEFFECTIVE ASSISTANCE OF COUNSEL...3 D. TESTIFYING AGAINST A FORMER CLIENT IN A CRIMINAL CASE...3 E. DISCLOSING CLIENT S POSSESSION OF CHILD PORNOGRAPHY...7 F. CLIENT S COMMUNICATION WITH LAWYER USING EMPLOYER S E-MAIL OR COMPUTER 10 2. COMMUNICATING WITH PERSONS REPRESENTED BY COUNSEL...11 A. WHAT IS THE RULE?...11 B. DOES THE RULE PROHIBHIT A LAWYER AS BANKRUPTCY TRUSTEE FROM COMMUNICATING WITH A REPRESENTED DEBTOR?...11 C. MAY A PROSECUTOR ADVISE A POLICE INVESTIGATOR TO COMMUNICATE WITH A REPRESENTED DEFENDANT IF THE DEFENDANT HAS WAIVED HIS RIGHT TO COUNSEL AND HAS INITIATED THE CONTACT WITH THE INVESTIGATOR?...13 D. MAY A LAWYER ADVISE A CLIENT TO COMMUNICATE DIRECTLY WITH THE OPPOSING PARTY IF THEY ARE REPRESENTED BY COUNSEL?...15 3. RECENT DEVELOPMENTS IN LAWYER MARKETING AND ADVERTISING...18 Hayes v. State of N.Y. Atty. Grievance Committee, United States Court of Appeals for the Second Circuit (March 5, 2012)...18 4. SOCIAL MEDIA AND ITS ETHICAL HAZARDS...19 In re Hunter, Virginia State Bar, 3d Dist. Comm., VSB No. 11-032-084907, 11/8/11...19 New York State Bar Ass'n Comm. on Professional Ethics, Op. 873, (6/9/11)...19 Ohio Supreme Court Bd. of Commissioners on Grievances and Discipline, Op. 2010-7, 12/3/10...20 Quick Factsand Tips About Using Social Media: See attached Appendix A...20 1 FDFCDC 202
concluded, however, that Rule 1.9 (c) was indeed violated and the information to which the former defense counsel had testified was detrimental to Mr. Turner and was not information that had become generally known simply because it was the subject of testimony in an open courtroom. See Turner v. Commonwealth, Rec. No. 111563 (June 7, 2012). The New York City Bar offers this advice regarding a lawyer testifying against a former client: 1. If the information sought is neither a confidence nor a secret, the lawyer may voluntarily testify regarding his representation of a former client. 2. If the information sought is a confidence or secret, and the lawyer is willing to testify voluntarily, the lawyer should generally seek to obtain the former client s informed consent before testifying (unless another exception to the duty of confidentiality is applicable, seedr 4-101(C)). If consentis not obtained, and no other exception is applicable, the lawyer should not voluntarily testify. 3. If, while voluntarily testifying, the lawyer is asked a question calling for disclosure of a confidenceand consent has not been obtained to waive the privilege, and no other exception to the privilege is applicable, the lawyer should assert the privilege and other applicable, non-frivolous objections. If the claim of privilege and objections are overruled, the lawyer may answer the question. 4. If, while testifying, the lawyer is asked a question calling for disclosure of a secretand consent has not been obtained to disclose the secret, and no other exception to the duty of confidentiality is applicable, the lawyer should assert any other applicable, nonfrivolous objection that would enable the lawyer to avoid disclosing the secret. If none is available, the lawyer may answer the question. If any objection is overruled, the lawyer may answer the question. E. DISCLOSING CLIENT S POSSESSION OF CHILD PORNOGRAPHY Both federal and Virginia law make mere possession of child pornography a criminal offense. Va. Code 18.2-374.1:1; 18 U.S.C. 2252. Virginia law makes possession a Class 6 felony. In contrast, federal law imposes a severe penalty of not less than 5 and up to 20 years imprisonment for a possession violation. There is no intent requirement. The only required element of mentalstate is knowingly as applied to the physical possession. Once child pornography is discovered, both of the above requirements are satisfied. The statutes, and substantial case law on point, make it clear there is no exceptionwhich would serve to make such possession non-criminal for anyone other than law 7 FDFCDC 203
enforcement. The only safe harbor comes in the form of an affirmative defense provided in the statute itself. That affirmative defense requires that upon discovering that one is in possession of thismaterial, the person promptly and in good faith either destroyed the material, or turned it over to the authorities. Protecting client confidences and acting in clients best interests are among a lawyer s most fundamentaldutiesbut everyone is subject to criminal laws regarding obstruction of justice, spoliation, and related offenses. Lawyers professional obligations specifically include the duty to follow all laws. Accordingly, a lawyer who acquiresevidence implicating a client in a crime may be thrust into a compromising position. How compromising depends on the nature of the evidence and the circumstances of counsel s acquisition of it. Tangible evidence of a crime falls into two broad categories: 1) contraband, instrumentalities, or fruits of a crime, or 2) ordinary items with evidentiary significance. Possessing the former requires a lawyer to sua spontetake remedial action, but possessing the latter usually does not. Whatever the nature of the evidence, counsel s course of action should include doing all possible to protect clients confidences and best interests within the bounds of the law. Unlike contraband, a lawyer s possession of ordinary evidence is not a crime and does not trigger any special affirmative duties for the lawyer. The mere fact of counsel s possession of such evidence is not a crime. However, a lawyer who knowingly hides evidence from law enforcement or impedes law enforcement s ability to find it risks being accused of obstruction of justice or misprision. Contraband, on the other hand, including possession of child pornography, is an entirely different matter and requires special treatment. It is a crime for anyone to knowingly possess or transfer contraband, which includes, for example, illegal narcotics, unregistered firearms, unlawful explosives, and child pornography. Simple possession of the fruitsof a crime, such as stolen money or merchandise, counterfeit items, or phony identification cards, also may violate an array of federal and state laws. If a lawyer s possession helps a client hide evidence from law enforcement or impedes law enforcement s access to the evidence, counsel may be vulnerable to accusations of obstruction of justice, misprision, aiding and abetting, or conspiracy. Possessing the instrumentalitiesof a crime, such as a killer s bloody glove or a laptop used to send e- mails to duped investors, may violate the law if it helps a client secrete the evidence or hinders law enforcement s ability to find it. It also may constitute spoliation and related crimes if counsel s possession impairs the quality of the evidence. These criminal acts also trigger disciplinary sanctions for lawyers. See Rule 3.4(a)( a lawyer shall not 8 FDFCDC 204
obstruct another party's access to evidence or alter, destroy orconceal a document or other material having potential evidentiary value for the purpose of obstructing a party's access to evidence. A lawyer shall not counsel or assist another person to do any such act. ). Because possessing contraband, instrumentalities, or fruits of a crime usually will run afoul of one or more criminal laws, lawyers who acquire such evidence must turn it over to law enforcement, even if doing so could implicate a client in wrongdoing. A lawyer should try, when possible, to arrange for an anonymous delivery of fruits or instrumentalities to the police. Moreover, if counsel (or anyone working for counsel) retrieved or moved the evidence from its original locale, counsel may be compelled to disclose the original situs even if the information originally came from confidential client communications. Counsel also may be required to testify regarding chain of custody and therefore disqualified from representing the client. What about just giving the evidence back to the client or to whoeverprovided it to counsel? While this would achieve the goal of dispossession, it could aggravate counsel s exposure because knowingly transferringcertain evidence (particularly contraband) is an even more serious offense than mere possession. It also couldbe construed as helping a client conceal the evidence (whether contraband, instrumentalities, or fruits) from law enforcement. However, if counsel can return noncontraband evidence to its source without impairing the condition of the evidence or hindering law enforcement s efforts to prosecute the client or others, counsel may do so after a reasonable time for inspection. SeeCommonwealth v. Stenbach, 365 Pa. Super. 5, 23-24, 514 A. 2d 114, 123-24 (1986). What about destroying the evidence? This is a poor alternative. Knowingly destroying evidence of a crime may constitute spoliation, obstruction of justice, or misprision under federal and state laws. The lawyer for a Connecticut church learned this the hard way when he was indicted for destroying a laptop that he knew contained child pornography. The laptop was delivered to the lawyer by church officials who received it from a church employee, who discovered the images after borrowing the laptop from its owner, the church organist. SeeUnited Statesv. Russell, 3:07-CR-31 (D. Conn.); see also United States v. Kellington, 139 F. 3d 909 (9th Cir. 1998) (lawyer convicted on felony charges of causing another to destroy evidence of client s crime) (unpublished); United States v. Scruggs, 549 F. 2d 1097, 1103-04 (6th Cir.) (attorneys convicted of obstruction of justice and possessing stolen funds after accepting stolen money as a fee, subsequently denying doing so and destroying the money), cert. denied, 434 U.S. 824 (1977). 9 FDFCDC 205
THIS PAGE INTENTIONALLY LEFT BLANK FDFCDC 206