Criminal Defense Resource for Summary Removal Under Title 8, U.S.C. § 1228(b)

The National Immigration Project of NLG and Immigrant Defense Project have put out a new practice advisory and sample materials on summary removal under Title 8, U.S.C. § 1228(b). The advisory guide is located here.

Title 8, U.S.C. § 1228(b) permits deportation without a hearing for non-permanent residents convicted of an aggravated felony. Unfortunately, the use of administrative removal may increase under the Trump Administration. In question and answer format, this advisory provides an overview of the administrative removal statute and implementing regulations. It may be helpful to attorneys defending non-citizens in illegal reentry proceedings with a prior § 1228(b) removal order, as it sets forth some of the due process challenges that can be made to the underlying § 1228(b) removal order.

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National Forensic College Open to CJA Panel Attorneys

The Training Division of the Defender Services Office is working with the National Association of Criminal Defense Lawyers and and the Cardozo School of Law to implement the fourth National Forensic College. The seminar this year will run from Sunday, June 4 through Friday, June 9, 2017 in New York City. Attendance is by invitation only, with preference given to federal defenders who have not previously attended the college. The program is open to CJA panel attorneys. For CJA Attorneys Defender Services we will pay tuition, which includes a dorm room, materials and a continental breakfast.

The goal of the college is to train experienced litigators, both trial and post-conviction, to be able to understand and evaluate the various forensic science techniques routinely used in criminal prosecutions. Afterwards, attendees are expected to train legal professionals in their jurisdiction in these areas and work strategically with fellow lawyers to develop successful litigation strategies to address forensic issues.

Topics for 2017 will include DNA, Eyewitness Identification, False statements and Confessions, Feature Comparison, Cognitive Bias, Digital Evidence and other subject areas to be determined.

CJA panel attorneys interested in this program should contact Frank Draper by phone at 202-502-3418 or by email at Frank_Draper@ao.uscourts.gov as soon as possible. The application deadline is February 24, 2017.

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USSC National Sentencing Seminars for 2017

The US Sentencing Commission is offering two national seminars in 2017. The first is May 31 – June 2 in Baltimore and the second is September 6-7 in Denver. Registration for these seminars opens on February 17, 2017. Both seminars cover the the same content. Draft agendas will be available on February 17 at the Sentencing Commission website (www.ussc.gov) under the education tab.

Registration is first come, first served. All CJA attorneys are welcome. Baltimore will cap out at about 525 participants and Denver will cap out around 425. Once full, registration will be closed, but the Sentencing Commission will maintain a wait list in thee vent of cancellations.

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Financial Assistance for April 6-8, 2017 CLE on Race Issues in Federal Courts

“Race in the Federal Criminal Court: Strategies in Pursuit of Justice” is CLE offered from April 6-8, 2017 in Baltimore by Defender Services. The program is designed to educate federal criminal defense attorneys about the many ways race impacts the administration of justice in federal court and provide counsel with strategies to combat racial injustice in the criminal justice system. Areas to be addressed include implicit bias, jury selection, and racial disparities in charging, pleas and sentencing.

The draft agenda shows that the second day of the conference includes a presentation on the collateral consequences for non-citizen defendants in federal court. This includes a discussion on how drug convictions affect immigration status and the prosecution of reentry after deportation cases.

As of February 10, 2017, there is still space available. There is also financial assistance available. If you are interested in the program, don’t be shy about asking for financial assistance.

Here is a link to sign up for the program.

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Free “Cloud” Space for CJA Panel Attorneys

The National Litigation Support Team (NLST) has arranged for free web-hosted “cloud” space from Box.com for CJA panel attorneys to share and transfer digital discovery in multi-defendant CJA cases.

Box.com is the same service used by the DOJ to distribute digital discovery to defense counsel. It is a cloud-based program that allows users to store, access, share, and transfer electronic files and documents. The service encrypts all data and has additional security features. Users can store an unlimited number of files, for their own use or to share with others, without having to use remote access to office computers. Defense teams can use different devices (such as computers, tablets, or smartphones) to access case data anywhere they can connect to the internet. This allows CJA panel attorneys to share discovery and work product easily and efficiently in a secure environment.

Box.com stores case information on its servers. Attorneys remain ultimately responsible for the use of this service. This sort of service may implicate local bar rules, so check the rules before you use the service. Here are links to a couple of articles from the Wisconsin Lawyer on the ethics implications for Wisconsin attorneys using cloud based services:

Cloud Computing is the New Norm: Ethics Opinion Outlines Lawyer Obligations

Technology: The Ethics of Cloud-based Services

Once approved, the NLST will send you a form asking for the case details including who will serve as the “point of contact” for each defense team, and who on the team should be given access to the what files that have been stored on the cloud. Note that additional team members can be added later. The NLST will set up a short session to show all those who will use this cloud service how to navigate the system, and how to upload and download data. The NLST will be the team’s first point of contact if there are any questions about using Box.com, technical questions, or any concerns regarding using this cloud-based case information repository.

At the end of the case, or when counsel no longer needs the service, attorneys must delete all case materials from the service. The NLST will help ensure the case files are deleted, and the case is properly closed. Counsel should always maintain a copy of all files on their office computer system (besides the information stored in the cloud), as only duplicate files should be stored on Box.com.

If you are interested in using Box.com for a multi-defendant case, or have further questions, please contact and of the individuals listed below:

Kalei Achiu (kalei_achiu@fd.org or 510-250-6310)
Alex Roberts (alex_roberts@fd.org or 510-637-1955)
Kelly Scribner (kelly_scribner@fd.org or 510-637-1952)

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Guidance for Criminal Defense Counsel on Trump’s Immigration Executive Order

Here is an email from Isaac Wheeler, an immigration attorney at the Federal Defenders of New York on President Trump’s recent executive order on immigration. Although the impact of the order is hard to judge at this point, Mr. Wheeler provides helpful insights to defense counsel representing non-citizens in criminal cases.

President Trump’s executive order titled “Enhancing Public Safety in the Interior of the United States,” signed on Jan. 25, may have significant impacts on non-citizens with open federal criminal cases in the relatively near term. The order is only two days old and does not explicitly withdraw existing agency guidance on most issues it addresses, so it is not clear how soon DHS or DOJ will issue revised guidance to field offices regarding implementation. But federal criminal practitioners should be aware of several aspects of this order that may alter the landscape for noncitizen defendants and should closely monitor their implementation:

1) Some federal defendants who would not have been ICE enforcement priorities before may now be high priorities for removal even pre-conviction. Obama’s DHS Secretary Jeh Johnson issued a 3-tiered system of ICE enforcement priorities in late 2014. Once those took effect in 2015, 98 to 99% of all non-border removals were people who fell under those priorities, with the vast majority falling under levels 1 and 2 (primarily immigrants with convictions). As a result, thousands of ‘just undocumented’ folks or people with only minor records were left alone, even if ICE encountered them in the criminal justice system. The new order does not explicitly withdraw the 2014 memo but includes overarching language suggesting that no-one encountered by ICE need be left alone. (Before, ICE had to determine that a non-priority immigrant’s deportation served an “important federal interest” to deport him or her, and this accounted for only 0.2% of removals in FY2016).

It is important to bear in mind that ICE cannot generally deport people who are currently in valid immigration status (such as green card holders) in the absence of a conviction that falls under one of the specified categories of deportable conduct in the Immigration and Nationality Act. (There are exceptions, including for noncitizens apprehend at ports-of-entry, such as airport courier cases). This order does not change that. But as to those who currently lack valid immigration status or who have status but also already have a conviction that renders them deportable, it defines new and vastly broader enforcement priorities, including:
· Anyone who has been convicted of any “criminal offense” (even one that does not fall under a criminal deportation ground of the INA, such as a traffic misdemeanor). This language appears to apply to past convictions with no statute of limitations, and it is not clear yet whether it applies to dispositions that a state or locality would define as non-criminal (such as N.Y. state violations).
· Anyone who has been charged with any criminal offense, “where such charge has not been resolved.”
· Anyone who has committed conduct that constitutes a chargeable criminal offense (again, possibly including the most minor offense). This also conceivably covers anyone who entered the country illegally, since that is an offense under 8 USC 1325.
· Anyone who has engaged in fraud or willful misrepresentation in connection with an official matter or application to a government agency, or who has “abused” public benefits
· Anyone whom an immigration officer judges to be a risk to public safety

Again, these expanded priorities apply to people who are “removable,” and not, for example, to a green card holder arrested in the interior who has no prior convictions but has a pending case. Such a person is usually only removable upon conviction.

For clients covered by these expanded priorities, defenders should note that several of the changes may alter ICE and CBP practices when a non-citizen federal defendant is released on bond. In many cases, even if a defendant has an immigration detainer, ICE or CBP will process them upon release from custody but then allow the defendant to stay out under the bond conditions set by the court while the criminal case plays out. It remains to be seen if DHS will interpret the Jan. 25 order as a directive to work at cross-purposes with the U.S. Attorney’s Office by removing clients who are still facing federal prosecution. But for now, when there is a detainer, defense counsel should consult an immigration expert before seeking a client’s release on bond and should consider whether the client would be helped or harmed by being taken into ICE or CBP custody for removal before a criminal case is resolved. And depending on how this provision is interpreted by DHS, clients under pre-trial supervision who currently lack immigration status or who are otherwise removable may wish to consult an immigration expert now about possible defenses to removal, in light of the risk of possible immigration detention. (Clients should only be referred to reputable immigration lawyers with expertise in criminal-immigration removal defense).

Defense counsel should also consider these revised enforcement priorities when counseling a client regarding the effect of a deferred prosecution or the dismissal of a case (especially, but not exclusively, cases regarding document fraud, other frauds on the government, or public benefits), since DHS may interpret the order as a directive to prioritize even clients who are cleared of charges.

2) DOJ and DHS are ordered to identify and report on every federal defendant’s immigration status. Under the rubric of ‘transparency,’ the order directs DHS and DOJ to “collect relevant data” for quarterly reports on all non-citizens in BOP custody and “all aliens incarcerated as federal pre-trial detainees under the supervision of the [Marshals].” That’s not likely to change anything tomorrow, and virtually every deportable non-citizen in BOP custody becomes known to ICE already, but it could mean a closer-to-100% detainer rate at presentments if the Marshals implement this policy even when arresting case agents don’t confer with DHS.

3) Relatedly, the Priority Enforcement Program (“PEP”) Is scrapped and the Secure Communities (“S-Comm”) program is coming back. The Secure Communities program allowed ICE to learn of the arrest of noncitizens by any law enforcement agency via instant sharing of booking fingerprint data and to lodge “detainers” temporarily preventing their release. It was replaced with PEP in 2015 because of widespread criticism of the former program and the refusal of many jurisdictions to comply due to concerns about the legality and constitutionality of immigration detainers issued under S-Comm. Under PEP, ICE continued to receive fingerprint data but supposedly narrowed its criteria for the issuance of detainers. Importantly, in some cases it began to lodge a revised detainer form (I-247N) that only asked criminal authorities to notify ICE of a defendant’s release, not to hold the individual for 48 hours beyond the termination of criminal custody. While immigration advocates dispute claims that PEP meaningfully addressed the problems with the old, legally and constitutionally suspect detainers, S-Comm will now be reinstated, reversing whatever gains PEP represented. For now, if the USAO or USMS claims there is a detainer on a client, defense counsel should demand to see it and should note whether it is an I-247N that does not actually request that the defendant be held for ICE. In addition, detainers issued under PEP explicitly state that they are not meant to affect decisions on the issuance of bond, so subject to the new concerns discussed in Point 1, above, defense counsel should not automatically assume in every case that the existence of a detainer makes release on bond impossible or inadvisable.

4) Other aspects of the order may have significant impacts on noncitizens in the federal criminal justice system in the longer term:
· DOJ is ordered to devote “adequate resources” to the prosecution of immigration-related crimes. Since these already account for 52% of all federal criminal prosecutions, the impact of this directive is unclear, but the President appears to consider this allocation “inadequate”;
· DHS and DOS are ordered to implement authorized sanctions against countries that resist accepting deportees, which could change the outlook for defendants from Cuba, China, Sierra Leone, Vietnam, and other so-called “recalcitrant” countries;
· The broad language in the order directing the enforcement of the law against “all removable aliens” might affect DHS’ use of prosecutorial discretion to benefit federal defendants including cooperators, although again it remains to be seen if DHS will interpret the order as an instruction to work at cross-purposes with other state and federal law enforcement agencies
· Subject to appropriation, the order directs the hiring of 10,000 additional interior enforcement agents (above the large increases in the Border Patrol in the separate border enforcement order). ICE agents might be deemed exempt from the hiring freeze the President has separately ordered as necessary to meet public safety responsibilities, but if immigration judges are not, the already critical overcrowding of immigration courts could become a severe due process problem. (At this writing, detained noncitizens in New York are waiting eight to ten weeks for an initial hearing with an immigration judge).

Several immigration advocacy have already issued preliminary advisories and commentaries on the executive orders (which have helped inform the analysis above). Defense counsel should continue to check back with these organizations (including the National Immigration Project of the National lawyers Guild and the American Immigration Council) and the National Immigrant Justice Center’s Defender Initiative page for continuing guidance.

The impacts of this order on state criminal justice systems may be far more sweeping, and state criminal defense practitioners should watch for an advisory soon from the Immigrant Defense Project.

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Expedited Screening Arrives in the Western District of Wisconsin

The District Court in the Western District of Wisconsin has adopted an expedited screening policy for CJA counsel and counsel providing pro bono representation in the Western District.

Here is what it takes to qualify for expedited screening:

An attorney entering the United States Courthouse who would otherwise be subject to a full security check is eligible for expedited screening if the attorney meets the following criteria:

is admitted to practice in the Western District of Wisconsin;

is either a member or the Criminal Justice Act Panel for representing indigent defendants or has undertaken a pro bono representation at the request of the Court within the preceding two years; and

has provided the Clerk of Court with a Known Traveler Number obtained from the Transportation Security Administration.

Attorneys who satisfy the above criteria are eligible to be added to a list of attorneys entitled to expedited screening. Expedited screening means that counsel must submit overcoats, briefcases or other carried objects for X-ray screening and then pass through the metal detector. If counsel clears the metal detector, he or she is free to enter without removing shoes, belt, light coat, watch, etc. If counsel does not clear the metal detector, he or she must remove whatever is causing the metal detector to beep and try again.

Attorneys who are on the list may be required to show picture identification to Court Security Officers upon entry.

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Litigation Support for CJA Attorneys

The Office of Defender Services National Litigation Support Team (NLST) helps CJA attorneys manage large volumes of discovery in CJA cases.

NLST provides assistance on matters related to electronic discovery and litigation support. NLST is available to provide advice, make recommendations on funding requests involving e-discovery, and advise courts and parties about economical and practical solutions to e-discovery issues. See, Guide to Judiciary Policy, Vol. 7A, § 320.70.40. NLST also provides training on various litigation support software programs, is familiar with effective ways to manage electronic discovery and leverage various litigation support software tools, and can provide guidance on how to utilize third party vendors in a cost-effective manner.

NLST also provides assistance to CJA counsel with Coordinating Discovery Attorneys and Summation. Both are part of a set of national
litigation support strategies approved by the Judicial Conference Committee on Defender Services and managed by the NLST.

Below is the text of a recent memo with a more detailed description of the coordinating discovery attorney and summation services.

Defender Services National Litigation Support Team:
Services for Managing Large Volumes of Discovery in Federal CJA Cases

Coordinating Discovery Attorneys

Coordinating Discovery Attorneys (CDAs) work with defense counsel on cases in which there are a large number of defendants, voluminous data, or complicated electronic discovery issues. The three CDAs under contract with the Administrative Office are Russell M. Aoki of
Aoki Law PLLC in Seattle, WA; Shazzie Naseem of Berkowitz, Oliver in Kansas City, MO; and Emma Greenwood, who is in private practice in New York. These attorneys have experience working on CJA cases, are knowledgeable about the types of software programs available to
assist in the management of discovery, and have been responsible for the effective use of technology and litigation support vendors to assist with the organization, search, review and analysis of large volumes of discovery in both paper and electronic form. They have been
appointed by district courts to serve as the CDA in complex criminal cases and in this capacity, have ensured that defense counsel have the necessary technology support to manage large volumes of discovery; assisted in controlling costs by seeking cost-sharing opportunities with the
Government whenever possible; and made certain that vendors provide quality services at the best possible rates.

CDAs can provide additional in-depth and significant hands-on assistance to CJA panel attorneys and FDO staff in cases that require technology and document management expertise, including facilitating the implementation of the “Recommendations for Electronically Stored
Information (ESI) Discovery Production in Federal Criminal Cases” (Recommendations), which can be accessed by clicking on this hyperlinked title. CDAs evaluate the level of computer sophistication of each lawyer and staff member; identify the types of discovery involved; assist in
dialogue with the U.S. Attorney’s Office regarding the volume, form and timing of discovery productions (as explicitly encouraged in the Recommendations); assist in deciding how best to distribute the discovery; help determine what technology and other resources are necessary for discovery review and management; and aid in maintaining quality control of the discovery review process. By using a CDA, discovery is generally provided in a more useful form; one knowledgeable person assesses the case’s litigation support needs and assists counsel in
obtaining the resources necessary to meet them; discovery is more effectively and efficiently tracked; the purchase of litigation support software, hardware, and services is more cost effective; discovery is provided in a more timely manner; and the overall case processing times
and costs are likely to be reduced.

To contain costs and maximize benefits, the CDAs focus on a limited number of cases each year that have been identified as needing a CDA based on the complexity of the matter, the number of parties involved, or the nature and/or volume of the discovery. If the court, a panel
attorney or FDO is interested in utilizing the services of a CDA, one of the CJA attorneys in the case should first communicate with the NLST, whose contact information is listed at the end of this memorandum. After an initial consultation with the NLST, and a second one with
one of the CDAs, a decision will be made about the use of the CDA’s services in the subject case. Factors considered in determining whether a CDA will work on a particular case are:

• whether the number of co-defendants is so large as to create a risk of costly duplicative efforts, which could otherwise be eliminated or reduced upon the appointment of a CDA, or whether there are other factors that create a likelihood that the CDA’s participation would enable costs to be contained;

• whether the volume of discovery is so large that addressing the organizational needs in the case would interfere with defense counsel’s ability to address the legal and factual issues in a case;

• whether unusual organizational or technological issues exist, not commonly found even in complex cases, that would interfere with defense counsel’s ability to address the legal and factual issues in a case;

• whether the case is prosecuted in a region that lacks experts who can provide necessary technology support and document management expertise in addressing the factors described above;

• whether the timing of the request, which preferably should be made early in a case, is such that the CDA’s participation is likely to be of assistance to defense counsel, promote efficiency, and contain costs; and,

• the CDA’s workload.

All factors need not be present to seek the services of the CDA. In determining how much weight to provide each factor, the seriousness of the alleged offense will be considered.

The National Litigation Support Administrator (NLSA) makes an initial decision as to whether to assign a CDA to assist on a case. After the NLSA determines that the services of a CDA would be of assistance, CJA counsel should petition the court to appoint the CDA to assist defense
counsel in the particular case. The court’s appointment of the CDA to work with all defense counsel in the case provides authority for the CDA to confer directly with the prosecution on issues of discovery, which allows for better coordination and overall cost-efficiencies regarding
information exchange.

Web-hosted Document Review Platform (Summation)

Summation is a secure, web-hosted document review platform that can be useful in cases with voluminous discovery, multi-defendant cases, and cases where the defense team members are in different locations. (NOTE: A document review platform uses a database and other tools
to facilitate the capture, organization, review and analysis of e-discovery. Whether stand-alone, networked, or in the cloud, these platforms enable multiple individuals to securely manage a large amount of data.) The Defender Services Office has a contract with AccessData to securely
host in the cloud select CJA and FDO cases which involve complex e-discovery. Designed for legal work, this online database and repository allows each defense team to keep private notes about the case data; bulk tag, filter, annotate and code information about the files that they can
share with others; review the electronic data without changing the underlying background information about them; and open and view many computer file types even if they do not have the originating software on their computer (e.g., you would not need to have Microsoft Excel to
view an .xls spreadsheet). Along with the hosted space, AccessData provides project management expertise and training for the end-users of the system. This reduces the need for panel attorneys to have specific hardware, software or IT support.

This hosted review platform differs from a hosted file repository, such as Dropbox, in that its database allows for better organization, greater search capabilities and greater capability to work collaboratively with other members of the defense team. In multi-defendant cases, all
parties can share a single repository and still maintain their own work product such as notes pertaining to a particular document, in a private area not accessible by the other parties. Not only can a web-hosted platform be available to attorneys and their immediate staff, parts of the
database can also be provided to experts and others working on the case who need to only look at select materials as set aside by the defense team.

If you have any questions regarding NLST services, contact Sean Broderick, National Litigation Support Administrator, or Kelly Scribner, Assistant National Litigation Support Administrator, at 510-637-3500, or by email at: sean_broderick@fd.org or kelly_scribner@fd.org.

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Heads Up on ACCA and Career Offender Residual Clause

Here is a email from Dan Stiller on recent developments in litigation concerning what qualifies as a crime of violence or violent felony under the so called “residual clause.”

Lawyers,

As we all know, one of the most confusing and litigious areas of federal criminal law has long been and remains what prior offenses constitute “crimes of violence” under the guidelines and/or “violent felonies” for purposes of the statutory Armed Career Criminal Act. The action’s always been under the so-called “residual” or “otherwise” clause of the relevant provisions: I won’t be precise with the language but it’s the thing saying violent crimes include those which otherwise present a substantial risk of injurious outcome.

On this issue, I propose that we all stay extra on-our-toes for two reasons, one pretty widely known and the other emerging.

As to the widely known thought and as I think I’ve previously shared, there’s a case, Johnson, kicking around the Supreme Court. It just got argued for the second time. The issue presented is whether possession of a sawed-off shotgun is “otherwise . . .” a “violent felony” for purposes of the ACC. The reason it’s been argued twice is that after the first
argument, the Supreme Court decided to focus on an issue raised by a Scalia dissent in, I believe, James: whether the history of the 924(e) residual clause is so hopelessly jacked up that it ought to be declared void for vagueness. Wow. I’m hardly a scholar when it comes to the constitutional notion of statutory vagueness but I offer the following thoughts on our role during the pendency of Johnson:

(1) In our pending cases, we absolutely have to make the vagueness objection to any prior that’s “otherwise . . .” a violent felony for purposes of the ACC. We can and probably should make the same argument under the guidelines—career offender, 2K2.1, etc.—but more about that at (3);

(2) We should probably make some effort at identifying those of our former clients who got hit with an “otherwise . . .” violent felony in any case that became final in the last maybe 18 months. Retroactivity is another one of those issues bigger than my small brain but I’ll offer an example of what I’m getting at. Let’s say I did a sentencing six months ago in a case where the client got a 15-year ACC minimum under circumstances in which one of his three necessary priors was “otherwise . . .” a violent felony. He didn’t appeal, so his 15-year sentence is presently final. If the Supreme Court decides Johnson favorably, he’s got a year from the date of my sentencing hearing, and not necessarily a year from the date Johnson gets decided, to perfect a 2255 challenge to the post-Johnson lawfulness of his 15-year sentence. So if any of us have fairly recent closed cases in which our client’s been on the wrong end of “otherwise . . .” analysis, we may want to alert the client to the necessity of his filing an anticipatory 2255 (which, even when rushed, has to include any/all claims he might otherwise raise on a 2255 because a defendant generally gets only one bite at the post-conviction apple);

(3) Focusing strictly on the vagueness issue and again acknowledging the smallness of my brain, I’m not exactly sure that a void for vagueness win in Johnson, which is a challenge to the ACC statute, extends with full force to the guideline definition of “crime of violence” and its residual clause. Upon my admittedly limited understanding of the constitutional notion of vagueness, it’s a notice provision: someone who engages in behavior has a right to know its consequences at the time of engagement. So the fact that Johnson is a statutory ACC case has significance. An armed career criminal sentence is statutory and mandatory, above, the penalty that could apply without the ACC designation. Upon my limited understanding of vagueness, the felon out in the community who contemplates whether to grab a gun maybe deserves to know in advance whether, if caught for possessing a gun, he faces a maximum of 10 years or, instead, a minimum of 15 years. I’m not sure that the same logic extends to the guideline definition of “crime of violence.” The guidelines are advisory and don’t change statutory maximums. The notion of notice underlying vagueness may not extend to discretionary guidelines. But me and my small brain will continue making the Johnson-style vagueness argument against the guideline residual clause until someone with a robe and a bigger brain tells me I’m wrong.

All of which brings me to a second and important point. Separate and apart from whatever does or doesn’t happen in Johnson and on vagueness terms, FDSW, largely through its corps of Madison lawyers, has developed really powerful arguments as to why, in light of the Supreme Court’s decision in Descamps, neither Wisconsin’s crimes of fleeing to elude or burglary can satisfy the residual clause under either the ACC statute or the guidelines. In one of my own cases, I’m riding my Madison lawyers’ coattails and they’re upsetting an apple cart: the argument is strong! In Dismuke, my predecessor (Jim Walrath) fought valiantly against Wisconsin flee to elude being a career offender “otherwise . . .” crime of violence and lost. The Seventh Circuit has otherwise blessed Wisconsin burglary as an
“otherwise . . .” violent crime. But our Madison lawyers have taken Descamps, broken it down, and fashioned a compelling argument that those earlier decisions need to be revisited. So, as above in relation to Johnson vagueness claims, we shouldn’t have our current clients getting enhanced statutory or guideline sentences without challenge to either fleeing to elude or burglary as violent crimes. And, again, if we’ve got relatively recent clients who suffered this kind of injury, we probably ought to begin the process of identifying who those folks are and getting them some kind of advisement as to how they might proceed in terms of getting an anticipatory 2255 filed within their one-year from date of
finality for doing so.

The Johnson issue is one that will be decided for us in the coming weeks and one we’ll all know when it happens. But the post-Descamps challenge to fleeing to elude and burglary as violent is more local and more fluid. It’s also very technical. So for panel lawyers encountering flee to elude/burglary as an enhancer beyond mere criminal history points, please be in touch with FDSW. We’ll get you the latest state of our art argument
for you to convert to your needs/circumstances.

Posted in ACCA, Career Offender, Federal Sentencing, Federal Sentencing Guidelines | Comments Off

Cloud Based Electronic Discovery

Here is an e-mail from Donna Elm, a member of the Joint [DOJ & Defenders] Electronic and Technology Working Group.

DOJ is in the early stages of utilizing a new cloud-based tool to distribute electronic discovery to defense attorneys. The tool is called USAfx. It is our understanding that this service is now available for U.S. Attorneys to use to send you discovery. Though it is available, it doesn’t mean it’s going to be used in right away in your district; it is our understanding that for now that decision has been left to individual U.S. Attorney offices. Some are launching it quickly, though, so we wanted to provide you with more info about it.

A number of defenders and CJA panel attorneys are now involved in a pilot program to test the system, but there are three initial issues we want to bring to your attention:

1. To log into USAfx, the default is a two-step process each time. The first is to sign in with your email address and a password. The second is to receive a text message verification code. Typically, the government has been requesting a cell phone number to send that text message. If you have a government-issued cell phone or a business cell phone, you may not hesitate to share that number, but if you only have a personal cellphone, you may not want to share it. If they ask for your personal cellphone number, feel free to request an alternative method to complete the sign in and decryption. Since it is early, we don’t know what other options to suggest, but consider asking the AUSA for alternatives to you providing your personal cell phone number.

2. USAfx is designed for temporary file transfer, not long term storage of documents. A file expiration date will be displayed next to the file name – USAfx files will be deleted automatically expire in 60 days (or less if designated by the file owner). Thus, you should download the discovery and ensure that you got it all and can open and use it right away.

3. Bandwidth can be an issue. We have been told that DOJ is recommending that the tool only be used for discovery productions under 5 gbs or less, with no more than 800 files. Time it takes to download discovery may be an issue, depending on your office’s computer system and bandwidth. We suggest you address this (and any other issue about the new discovery system) directly with your AUSA. We also suggest that you track any time delays or difficulties you may have, and report them to us. Specific data from you about time delay and challenges may help us in encouraging a better process.

If you need assistance — and to report on any problems you are encountering — please contact the National Litigation Support Office staff:

Sean Broderick, sean_broderick@fd.org
Alex Roberts, alex_roberts@fd.org
(510) 637-1950

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