Federal Judge Proposes to Limit Billable CJA Travel Time

Here is an interesting December 6, 2011, article by Patricia Manson, Law Bulletin staff writer entitled “Shadur calls for budget cuts to attorneys.”

Criminal-defense lawyers being paid by the U.S. government should obtain offices close to the courthouse where they practice or foot the bill for their travel-related expenses, a federal judge contended. In a memorandum Monday, U.S. District Judge Milton I. Shadur said private attorneys appointed under the U.S. Criminal Justice Act (CJA) to represent indigent defendants facing federal criminal charges in Chicago should not expect to be reimbursed for traveling long distances. Instead, these contract lawyers should base their operations close to the Dirksen Federal Courthouse or expect to be denied payment for a large chunk of the time and money they spend on travel, Shadur said. Shadur said he urged his colleagues on the U.S. District Court for the Northern District of Illinois to adopt a local rule “establishing a reimbursement norm” based on the assumption that contract lawyers — called panel attorneys under the CJA — have offices in Chicago’s Loop. A committee headed by U.S. District Judge Rebecca R. Pallmeyer is responsible for recommending any changes to the trial court’s local rules. If the active and senior judges serving on the court approve a recommended change, the public is given 90 days to comment on the proposal. The judges then review the proposed change in light of the comments and take a final vote on the matter.

Shadur made his statements about travel-related expenses in response to an application for reimbursement submitted by Gary, Ind., attorney Steven M. Levy.
Levy represented defendant Witcliffe A. Plummer in a criminal case in Shadur’s court. United States v. Witcliffe Plummer, No. 01 CR 561-2. In his memorandum, Shadur said $3,757, or about 40 percent, of the amount sought by Levy consisted of travel-related items. “And that presents in high profile the question as to how much should be allowed to CJA lawyers generally on the premise that portal-to-portal time (say, spent in going to court, appearing in
court and returning to the office) appropriately reflects opportunity costs — after all, what a lawyer has to sell is his or her time,” Shadur wrote. Shadur said there are no official guidelines for determining what constitutes “reasonable” travel related expenses under the CJA. That determination is “left to the discretion of the reviewing court,” Shadur said. And Shadur said he determined that CJA money should not be used to pay the costs associated with Levy’s decision to establish an office in Gary. ”

This court sees no reason why he should be compensated at $125 an hour plus travel expenses for having made that choice, while many other members of the criminal defense bar office (say) in the Monadnock Building (53 West Jackson Boulevard, Chicago, catercorner from the federal courthouse) and spend only a few minutes in transit,” Shadur wrote.

Shadur proposed reducing Levy’s travel reimbursement request to $800. Citing CJA Guideline §230.36(a), Shadur asked Levy to respond to the proposed reduction. Levy submitted a written response saying the proposed reduction was “within the discretion of the court.”

Levy could not be reached for comment.

The problem with Judge Shadur’s approach is that it is one dimensional. In this case, a lawyer with an office distant from the courthouse incurred high travel expenses presumably because there were many court appearances. In the next case, however, the lawyer may have an office “catercorner from the federal courthouse,” but the case has few court appearances and the client and all of the witnesses live 200 miles away from the courthouse. In the second scenario a lawyer local to the client and witnesses would be more cost effective. The bottom line is that many of the federal districts are large, so some cases are going to require significant travel. It makes sense to keep lawyers on the CJA panel who maintain offices from all over the district to handle these cases. If the court insists that only lawyers close to the courthouse accept CJA appointments, the court should be prepared for significant travel time and expenses in the many cases where the alleged offense that gave rise to the prosecution occurred distant from the courthouse.

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Free National Seminar on the Federal Sentencing Guidelines in New Orleans, LA, June 13-15, 2012

All CJA panel attorneys are invited to attend and send staff members to the Annual National Seminar on the Federal Sentencing Guidelines, sponsored by the United States Sentencing Commission. This seminar focuses on the key issues in federal sentencing and has proven valuable to panel attorneys who have previously attended. I look forward to seeing you in New Orleans, Louisiana.

There is no registration fee for people attending the seminar. Travel expenses is the responsibility of your office or the registrant.

Seminar Registration: Although there is no registration fee, space is limited and you must register as soon as possible for the seminar at http://events.SignUp4.com/2012USSCAnnuaNationalSeminar

Hotel Reservations: The seminar will be held at the Hilton New Orleans Riverside, Two Poydras Street, New Orleans, Louisiana. Please make reservations as soon as possible by using the following hotel links:

Non-Government Attendees -http://www.hilton.com/en/hi/groups/personalized/M/MSYNHHH-USSG-20120607/index.jhtml?WT.mc_id=POG
Group Name: 2012 USSC Conference – Government Block
Group Code: USSG

CLE Information: Application for pre-approval of CLE will be made to all state bar associations.

Contact Information: Please feel free to call me at (202) 502-4540, or Cosette Jablonski, Training Coordinator, at (202) 502-4637, if we can assist you in any way. For more information on this event and other sentencing matters go to www.ussc.gov.

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Western District of Wisconsin Adopts Fast-Track Policy

Here is the recent letter from the US Attorney for the Western District of Wisconsin informing the local judges of the government’s new fast-track policy in felony immigration cases. It looks like the Western District simply adopts the policy set out by the Department of Justice.

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New DOJ Policy on Fast-Track Programs in Immigration Cases

On January 31, 2012, the Department of Justice issued a memorandum that sets forth a revised, nationwide policy for fast-track programs in immigration cases. The DOJ recognizes in the memo that immigration defendants have received different treatment throughout the country. The idea behind the new policy is to set a nationwide standard so that similarly situated defendants get treated similarly.

Under the new policy, the government will move for a four level reduction for all fast-track defendants, except those in criminal history category VI or with at least one felony conviction for a “serious violent offense.” In every other case, the government may only offer a two-level reduction.

Not every illegal reentry defendant is eligible for the fast-track program. The eligibility requirements are in the memo, which is attached here.

It is interesting to note the justification for the fast-track reduction. According to the memo, a defendant deserves a downward adjustment in the fast track program because his willingness to promptly plead guilty and waive appeal saves the government resources and the person has “demonstrated an acceptance of responsibility above and beyond what is already taken into account by the adjustments contained in the Sentencing Guidelines.” If this is the justification for a reduction, why limit it to immigration cases? Doesn’t a defendant who promptly accepts responsibility and pleads guilty in any case, not just immigration cases, also save the government money and demonstrates acceptance beyond what the guidelines already contemplate?

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NACDL Padilla Practice Series

NACDL in collaboration with the Defending Immigrants Partnership is putting on the Padilla in Practice series with three new programs on Immigration Law Essentials for defense lawyers. This informative series of programs are intended to assist criminal defenders in representing non-citizens.

The programs will be held at NACDL Headquarters, January 31 and February 1, 2012. These webinars will be broadcast live from NACDL headquarters. Watch any or all of them wherever you are – or come attend in person!

Program Includes:

January 31:

2:00 – 3:30 pm EST: Immigration Consequences of Criminal Cases: Overview of Concepts & Discussion of Emerging Issues

4:00 – 5:00 pm EST: Immigration Consequences of Drug Offenses

February 1:

1:00 – 2:30 pm EST: Immigration Consequences of Domestic Violence & Related Cases

Speakers Include:

Panelists:

Benita Jain, Immigrant Defense Project
Angie Junck, Immigrant Legal Resource Center
Dan Kesselbrenner, National Immigration Project of the National Lawyers Guild
Wendy Wayne, Immigration Impact Unit, Committee for Public Counsel Services

Moderator:

Vanessa Antoun, NACDL Resource Counsel

Registration Fees:

FREE to attend live
FREE to view remotely via Webcast

Location:

NACDL Headquarters:
1660 L Street, NW
12th Floor
Washington, DC 20036

(Program provides 4.0 Hour of CLE credit for in-person attendees for a fee)

For more information contact NACDL’s Resource Counsel at: 202.465.7663 or via e-mail at vantoun@nacdl.org

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Federal CJA Trial Skills Academy, April 22-27, 2012

The Trial Skills Academy has been extremely well-received. It is scheduled for April 22-27, 2012. The draft agenda is here. As with all Defender Services programs, there is no registration fee. The Trial Skills Academy is open to both CJA panel attorneys and federal public defender staff, but defender staff will make up no more than 15-20% of the participants.

The academy is put on in collaboration with the California Western School of Law, where it takes place. Persons can apply, through the Training Branch web site, fd.org, until February 22, 2012. After that date, participants are chosen for participation and will be notified by March 4, 2012 whether they have been selected. Participants are selected based upon trial experience during the last few years, so upon initial registration, all registrants are wait-listed and required to supply supplemental information on a form attached to the application confirmation email. No application for TSA will be considered if a Supplemental Information Form is not submitted.

The event is a hands-on, skills practice workshop in which participants work on one of their own cases. They learn a process for the development of a persuasive, fact-based theory of the case and the advocacy skills necessary to advance that theory during trial. Among other subjects, presentations, demonstrations and small group work will address brainstorming, storytelling, development of theories and themes, and all of the necessary trial advocacy skills.

Limited financial assistance for travel costs is available to CJA panel attorneys. A financial assistance application form is also attached below and available at
www.fd.org. The deadline to apply for financial assistance is February 3, 2012.

For substantive information about this event, please contact Lori Green at Lori_Green@ao.uscourts.gov. For logistical information, please contact Jenna Shepard at Jenna_Shepard@ao.uscourts.gov.

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New Assistant and Special Assistant AUSAs in Western District of Wisconsin

The US Attorney’s office in the Western District of Wisconsin recently added a new assistant and special assistant U.S. Attorney. Attached here is a letter of introduction from John Vaudreuil.

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FY 2012 Reimbursement Agreement with the Office of the Federal Detention Trustee

This is an email I recently received from Defender Services.

Dear Defenders and Panel Representatives:

Attached is a memo announcing the renewal of an interagency agreement between the Administrative Office and the Office of the Federal Detention Trustee. This memo describes funding available for pretrial services alternatives to detention and was sent to all Chief Probation Officers and Chief Pretrial Services Officers. We wanted you to be aware of this agreement as it may impact your representations, particularly at the bond phase.

Please feel free to contact me if you have any questions.

Pam Hamrin

Pamela B. Hamrin
Attorney Advisor
Office of Defender Services
(202) 502-3468

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SENTENCING ADVOCACY WORKSHOP, MARCH 29-31, 2012, REDONDO BEACH, CALIFORNIA

The Sentencing Advocacy Workshop, presented by the Office of Defender Services Training Branch, is a tuition-free CLE for Federal Defender attorneys and CJA panel attorneys. Since over 97% of federal criminal cases proceed to the sentencing phase, participation in the Sentencing Advocacy Workshop should not be missed. The workshop presents a comprehensive approach to sentencing advocacy. Participants will learn a process for the development of a persuasive, fact-based sentencing theory and the advocacy skills necessary to advance that theory in writing and during sentencing hearings. Participants bring a pending case of their own to the workshop where they brainstorm the facts of the case, develop a theory and theme, apply storytelling techniques, write the first part of their sentencing memo, and discuss what to present and how to conduct the sentencing hearing. The draft agenda is attached. Limited financial assistance is available to CJA panel attorneys demonstrating financial need. Details regarding how to register for the Sentencing Advocacy Workshop, apply for financial assistance and further information about our training programs and resources can be found at www.fd.org.

Enrollment is limited to 60 Federal Defender and CJA attorneys who have not previously participated in this workshop. Early registration is encouraged.

Questions regarding the Sentencing Advocacy Workshop? Contact Lauren_Billups@ao.uscourts.gov or call (202) 502-2903.

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The Confrontation Clause and Substitute Experts

Here is an excerpt from an email I recently received from Maine Federal Defender David Beneman detailing recent Confrontation Clause issues. The attachments are very useful, particularly the memorandum on successful Confrontation Clause cases since Crawford.

Successful Confrontation Cases Since Crawford

Williams v Illinois oral argument transcript

Confront clause limits pre-trial 1st Cir 12-12-11

Chemist – 1st cir Gonzlez 12-9-11

Confrontation Clause

The Confrontation Clause of the Sixth Amendment remains a hotbed of litigation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009);Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We await the Court’s opinion in Williams v. Illinois, argued December 6. (Is it a violation of the Confrontation Clause to allow an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial)(oral argument transcript attached).

Despite the pendency of Williams, we have a number of recent on point rulings. As background, I attach a wonderful resource summarizing the state and federal cases granting relief on Confrontation Clause grounds through January 1, 2011. Thank you John R. Mills of the Habeas Assistance and Training Project for creating and sharing this detained compendium.

The First Circuit in a pair of recent cases vacated a conviction over lack of confrontation (Ramos-Gonzlez) while also holding the clause does not apply in most pre-trial hearings (Mitchell-Hunter).

Substitute Chemist Not Enough

Conviction vacated in U.S. v. Ramos-Gonzlez, 2011 WL 6118530 (1st Cir., 12/9/11). Admission of substitute expert’s testimony as to contents of drug analysis report conducted by a non-testifying expert violated Confrontation Clause and not harmless. Almost 10 years ago, island police attempt to stop a pickup truck for the egregious crime of “unlawfully tinted windows”. The truck fled and following a car and foot chase, the drive eluded police. Not so for the truck from which two plastic wrapped blocks of probable drugs (cocaine) were seized. We are left to wonder how the defendant came to be charged, but that is apparently a not germane sub-plot. The original chemist, Borrero, listed as a government witness became unavailable to testify (mental illness is referred to in the opinion). Three days before trial the government adds substitute chemist Morales to the witness list. Morales is called by the government and, surprise, he tried to testify to the work of Borrero. Apparently the prosecutor never had Morales do his own testing ! The defense objects but J. Fuste over rules and the defendant is convicted and sentenced to 327 months.

On appeal the government first claims defense failed to preserve the objection, hence “plain error” standard. Although counsel did not use the “magic words” confrontation clause, or 6th Amendment when objecting, he said, “I object to the fact that he has no personal knowledge of the test being conducted.” The court finds that is enough to preserve. If Ramos’s Sixth Amendment rights have been violated, his conviction must be vacated unless the government demonstrates that the error was harmless beyond a reasonable doubt. United States v. Cabrera–Rivera, 583 F.3d 26, 36 (1st Cir.2009); United States v. Earle, 488 F.3d 537, 545 (1st Cir.2007).

After a brief review of confrontation clause jurisprudence, the court targets the issue in this case, noting it is essentially the issue to be resolved in William v. Illinois. The government relying on evidence rule 703 falls back on the old “expert can testify to things that have not been admitted” argument. The government still does not seem to understand Crawford; the Confrontation Clause is not a “rule of evidence” and cannot be trumped or cured by evidence rules. That only worked pre-Crawford. The opinion makes the distinction;

“Where an expert witness employs her training and experience to forge an independent conclusion, albeit on the basis of inadmissible evidence, the likelihood of a Sixth Amendment infraction is minimal. ..Where an expert acts merely as a well-credentialed conduit for testimonial hearsay, however, the cases hold that her testimony violates a criminal defendant’s right to confrontation.”

Here, The government is hard-pressed to paint Morales’s testimony as anything other than a recitation of Borrero’s report. Thank you, our point exactly. Still unhappy, the government argues the “harmless error” back up. How can it be harmless error when the government has failed to produce ANY witness who actually tested the substance and found it to be cocaine ? Exactly says the court;

“Morales’s testimony was neither cumulative of nor sufficiently corroborated by alternative evidence, and it comprised the only compelling basis for the jury to conclude a critical element of the government’s case—that the substance seized from the truck was cocaine. We cannot conclude that the presence of cocaine would have been proved without the testimony of Morales, and therefore the admission of his testimony was not harmless beyond a reasonable doubt.”

Meanwhile on the mainland, the MA SJC, addressing what seems to be the identical issue, reaches the opposite conclusion in Commonwealth v. German Munoz, SJC-11028, 12/15/11. http://www.socialaw.com/slip.htm?cid=21080&sid=120 Trafficking in crack. Seized drugs sent to the state lab, weighed and tested by Jaszek. Trial set for 1994, but defendant a fugitive so no trial until May 2010. By 2010 Jaszek has retired and detective who took what is arguably a confession, had died. Interesting that there does not seem to be an argument that the lack of chemist was due to defendant’s misconduct as a fugitive. The State puts on Hanchett, Jaszek’s successor. “Hanchett’s testimony covered (1) the procedure Jaszek followed in weighing and analyzing the contents of the bags; (2) the conclusions that Jaszek drew from this analysis; and (3) the conclusions that Hanchett “would have made” in Jaszek’s position. Because Hanchett did not retest or reweigh the seized substance himself, his testimony was based on information contained in Jaszek’s notes and reports as well as the machine printouts generated by Jaszek’s analysis.”

Defense counsel objected to Hanchett’s testimony on the basis it lacked foundation. Counsel did not say “6th Amendment” or “Confrontation Clause”. Unlike the First Circuit in Ramos-Gonzlez, the MA SJC apparently requires the “magic words” in the objection so here reviews under the plain error standard which they describe as “review only for a substantial risk of a miscarriage of justice, that is, to determine “if the evidence and the case as a whole . . . [leave] us with a serious doubt that the defendant['s] guilt [has] been fairly adjudicated.” (emphasis added). Is there any doubt that the defendant is now toast ? What else might the chunks in the baggie be ? Remember, this is a war.

The court then runs through the full analysis and the confrontation clause cases, but the die is set; “we discern no reason to conclude either that cross-examination of a substitute analyst offering an independent opinion cannot be meaningful or that the opinion offered cannot fairly be characterized as independent.” You have not recently though you might fare better in federal court ?

Does Not apply to Jurisdictional pre-trial Motion

In U.S. v. Mitchell-Hunter, No. 10-2203 (1st Cir. 12/12/11) the charge was drugs (1,170 pounds of cocaine ) and the major case issue jurisdiction under the Maritime Drug Law Enforcement Act (MDLEA). For those “inland”, there is an “alleged” drug smuggling method called “go-fast”. The smugglers from “away” approach Puerto Rico in a small fast boat which they hope can outrun the Coast Guard. In our ever humble US fashion, the government takes the position that our “war on drugs” allows our interdiction of such vessels on the high seas under MDLEA. Here, Defense counsel moved to dismiss claiming lack of federal jurisdiction. The government grounded their conduct in the portion of the MSLEA which says a ship “without nationality” is subject to US jurisdiction. To enforce, the Coast Guard apparently stops and boards “suspicious boats” and demands proof of nation marine registration. They then check that produced against the records of the purported home country. When, as here, the claimed home country (surprise Columbia and Venezuela), will neither “confirm nor refute the vessel’s registry”, we deem the boat a “ship without nationality” granting us jurisdiction. Defense counsel attacked the various certifications submitted by the government claiming a right to confront the Coast Guard commander who issued the certification.

The court started with an interesting analysis; the purpose of the MDLEA’s jurisdictional requirement is not to protect a defendant’s rights, but instead to maintain comity between foreign nations; the MDLEA’s “subject to jurisdiction” provision is “a matter of diplomatic comity.” “Meanwhile, the Confrontation Clause has the opposite focus”, i.e. on a defendant’s rights. Unfortunately, there seems to be no case law extending the confrontation clause beyond the actual trial, and there is “extensive case law declining to apply the confrontation right to various pre- and post-trial proceedings.” Courts do love having the security of case law. Denying the appeal, the court concludes; “To be clear, we need not and do not decide whether the Confrontation Clause could ever apply to pretrial determination, but only find that it does not apply in the circumstances of this case.

Conclusion

1. Preserve your objections.

2. Use the “magic words” 6th Amendment and “Confrontation Clause”.

3. Keep an eye out for the decision in Williams.

4. Finally, why do prosecutors not direct substitute chemists to retest ? That is for someone else to worry about.

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