Post Guilty Plea Diversion Court in the Eastern District of Wisconsin

The Eastern District of Wisconsin recently approved a post plea diversion court. Here is the text of an email from Eastern District Assistant Federal Defender Krista Halla-Valdes explaining the details.

Recently, the courts and all participating agencies approved a Post Guilty Plea/Presentence Diversion Court to begin in the EDWI. Although the specifics of how this “diversion” court will run is in the working stages, I have been asked to reach out to colleagues to see if there are potential clients that may be a good fit for the program. Essentially, the program will run similar to a “traditional” pre-trial diversion type program with one huge exception, your client will have to sign a plea agreement up front which will result in one of two things upon completion of the program: dismissal of the case OR a lesser sentence imposed (likely probation). Pre-trial diversion still exists, although rarely used, and this is not meant to take the place of that so if you have a person that you believe is a good candidate for traditional diversion, continue to pursue that avenue. However, if that doesn’t work or you have a client that has some sort of issue that contributed to his/her criminal behavior and a “treatment” plan can be put into place to address that issue, this may be the route to go.

Here is a breakdown of how it will work:

1. Any of the agencies can present a client for participation in the program, however everyone realizes it is much more likely to come from us (the defense attorneys).

2. A proposal written in letter format regarding why this client would be a good fit for the program should be drafted. The proposal is similar to a sentencing memorandum in terms of the history and characteristics of your client. And it is important to address what you believe is the “issue” your client is dealing with that may have contributed to the criminal conduct.

3. That proposal is given to the AUSA handling the case.

4. If the AUSA agrees, the proposal is given to the probation office who is asked to write a short report regarding the person’s risk factors, needs, prior criminal history, etc. Essentially, they are making a recommendation as to whether the client would be a good fit for this program and what services/treatment programs the client should need to avoid future criminal conduct.

5. The proposal and report is presented to the diversion court team (AUSA Bill Lipscomb, AFD Krista Halla-Valdes, USPO, and Judge) for approval.

6. Prior to beginning the program, an 11(c)(1)(C) plea agreement would be signed indicating exactly what the resolution of the case will be upon the client’s successful completion of the program, ie. dismissal of the case or sentence of probation, etc.

7. Successful completion of the program results in case going back to sentencing court and the terms of the plea agreement being followed: dismissal or lesser sentence. Failure to follow program requirements may result in termination from the program by the diversion court team.

What is the program?

It is similar to being on supervised release or pretrial release for anywhere from 12 to 18 months. The model for the program is based on “drug court” or “problem-solving courts.” If the client has an identifiable problem, like addiction or mental health issues, they are referred to specific treatment for that issue. Be creative — if the issue is under-employment or gambling or something else that may be addressed through community resources/programming, it is definitely worth putting it into a proposal. At a minimum, monthly in-person reporting to the court as to the person’s progress in the program is required. It is likely that either Judge Pepper or Magistrate Judge Joseph will be holding those monthly or bi-monthly sessions. Periods of short incarceration (up to 7 days), as well as other sanctions such as EM or increased testing or reporting, may be used for minor violations (positive drug test, missing counseling appointments, etc.). The biggest thing is that the client will have to follow through on whatever “case plan” is established for them.

Who are the clients that should be proposed?

Nobody is specifically excluded although I have been told persons charged with sex offense or violent offenses will not be approved by the government. With that being said, if you have an individual that is charged with possession of CP and has mental health issues that can be addressed through counseling or medication or both, it may be worth making the pitch. Government agreed to this program with the thought that low-level drug users indicted in multi-defendant conspiracies are the prospective participants. However, as the courts would not agree to a program that is only a “drug court,” all clients that have an identifiable issue that contributed to their crime that may be addressed through supervision and programming/treatment can be considered as potential participants.

How to proceed?

Use me as the point person to talk to about potential clients you believe would be a good fit. Bounce ideas off of me, discuss what should be in the proposal to the AUSA, and even send me a rough draft. I can also reach out to AUSA Bill Lipscomb up front to get an idea of what the government’s position is likely to be. The hope is that if we get a few clients in the program that are successful, it will keep the program around longer and it will be more likely for the government to agree to more clients entering the program.

Posted in Diversion Court, Eastern District of Wisconsin, Plea Agreements | Comments Off

Discovery Software Available to CJA Counsel

The National Litigation Support Team recently announced the availability of Casepoint, an e-discovery platform for federal defender offices and panel attorneys to use in select CJA cases. Casepoint is not just online discovery storage. It is designed to assist attorneys organizing, managing, and analyzing large volumes of discovery. For example, it lets you maintain private notes as you review the discovery. I have used similar services in large cases and find it very helpful. It also permits bulk tagging, filtering and annotation that can be shared among counsel in a multi-defendant case. If you have a large case that you think might benefit from this service, contact Kelly Scribner at 510-637-1952 to discuss whether the case qualifies.

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Defender Services Committee Changing of the Guard

Chief Justice John G. Roberts, Jr. appointed several new members to the Defender Services Committee. Their terms begin October 1, 2017.

New Members:

Hon. Micaela Alvarez (5th Circuit representative – TX-S)
Hon. Judith Ellen Levy (6th Circuit representative – MI-E)
Hon. Robert N. Scola, Jr. (11th Circuit representative – FL-S)
Hon. Ketanji Brown Jackson (DC Circuit representative – DC)

The following judges are concluding their service on the Committee:

Hon. Sharon Blackburn (AL-N)
Hon. Kathleen Cardone (TX-W)
Hon. Gladys Kessler (DC)
Hon. Harry Mattice (TN-E).

The Committee’s next meeting is scheduled for December 4-6, 2017, in San Diego, CA. The first day will be a joint meeting with the DSAG.

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Upcoming CJA CLEs

Multi-Track Federal Criminal Defense Seminar, Philadelphia, PA, Aug. 24-26, 2017

The Multi-Track Federal Criminal Defense Seminar offers in-depth instruction in a variety of substantive areas of federal criminal defense practice. The program consists of related sessions, or tracks, which are grouped together allowing attorneys to select areas of practice which will best meet their training needs. There are tracks designed for attorneys at all levels of experience and the design of the program allows attorneys to attend sessions from different tracks. In addition to the tracks, the program includes additional substantive plenary lectures which cover more general areas of federal criminal practice. The five 2 tracks (breakout sessions) are: (1) Immigration; (2) Motion Practice & Trial Skills; (3) Forensics; (4) Mitigation & Mental Health; and (5) Sentencing Strategies & Practices. Enrollment is limited to approximately 250 attendees and selection will be on a first come first serve basis.

The Law & Technology Series: Techniques in Electronic Case Management, Miami, FL, Sept. 7-9, 2017

This workshop exposes CJA panel and federal public/community defender attorneys and professional staff to the legal, strategic and technological considerations involved with electronic and/or voluminous discovery. This two-and-a-half-day program uses a combination of plenary presentations and small group, hands-on instruction. Besides gaining an understanding of the legal, practical, and technological considerations of these types of federal criminal cases, participants will learn basic and advanced features of three litigation support software programs (Adobe Acrobat Pro, dtSearch, and CaseMap/Time
Map suite), which are designed for handling small and medium-sized volumes of discovery. Attendees will better understand how legal litigation support
programs work, and how to coordinate thoughtful workflow processes with co-counsel, staff and potential vendors. They will also improve their overall ability to master case information, in order to better prepare their defense.

National Federal Habeas Corpus Seminar, Atlanta, GA, Aug. 10-13, 2017

This nationally-recognized program, the only one of its kind, focuses on representation in capital habeas cases in toto. Among other topics, experienced capital habeas litigators will address claim identification, various aspects of capital post-conviction investigation, factual and legal development and presentation of claims, the use of mitigation and mental health experts, the litigation of issues related to intellectual disability, mental illness, race and methods of execution, substantive and procedural habeas corpus jurisprudence and clemency practice. The program will also have a number of focused sessions devoted to providing attendees with information regarding the impact of recent Supreme Court decisions (and cases currently pending in the Court) on capital post-conviction practice, as well as sessions addressing new developments and trends in the federal courts of appeal and other state and federal courts. The program will also address new legislative initiatives and administrative actions that may affect capital habeas representation. Individual case consultations will also be available, upon request, to persons attending the seminar.

Third Annual Symposium on Race and Ethnicity for Defense Lawyers, New York, NY, September 15-17, 2017

**INVITATION ONLY**

This conference explores new insights on race and ethnicity from various disciplines, and through small group discussion, considers the application of those insights to criminal defense. Panels will address implicit bias, talking about race, voir dire, diverse teams, biased policing and sentencing, intellectual disability and race, mental illness and race, 3 microaggressions, other empirical studies of racial disparity, and sentencing advocacy. Discussion groups will be divided among capital and non-capital defense lawyers.

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US Sentencing Commission Report on Youthful Offenders

The Sentencing Commission issued a report on demographics, charging, and sentencing of youthful offenders in the federal criminal justice system. The report defines a “youthful offender” as a defendant age 25 or younger. Even though this definition include offenders under age 18, the number of defendants under age 18 is inconsequential. Between 2010 and 2015 there were only 52 offender under age 18. You can access the report HERE.

Key findings from the report are:

– 18% of the federal offender population between 2010 and 2015 was age 25 or younger

– The majority of youthful offenders are Hispanic (57.8%)

– Almost 92% of the offenses committed by youthful offenders were non-violent offenses.

– The most common offenses that youthful offenders committed were drug trafficking (30.9%), immigration (28.6%), and firearms offenses (13.7%)

– The average sentence for youthful offenders was 34.9 months

– Youthful offenders were more likely to be sentenced within the guidelines range

– Youthful offenders recidivated at a higher rate that their older counterparts – about 67% versus 41%

Posted in Federal Sentencing | Comments Off

Western District of Wisconsin’s New Order on Sealed Sentencing Memos

On May 25, 2017 Judge Peterson issued an order that changes the procedure for sealing a sentencing memo. The previous order required counsel to file a redacted and un-redacted version of the memo. The complete version was filed under seal and the redacted version was filed normally. Counsel also needed to file a motion to seal, accompanied by a redacted and un-redacted affidavit in support of the motion to seal. The redacted affidavit was filed for public view and the un-redacted affidavit was filed under seal. The new rule permits counsel to simply file the sentencing memo under seal when counsel has a “good faith belief that sealing is required to ensure the safety, privacy, or cooperation of a person or entity…”. The order deals with various sorts of sealed documents, but as far as sentencing memos it provides in relevant part as follows:

IT IS FURTHER ORDERED that in criminal cases only… [sentencing memoranda] may be filed under seal without motion or further order of the court and without an accompanying redacted version provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to otherwise protect a substantial public interest.

The complete memo is set forth here.

Posted in Western District of Wisconsin | Comments Off

Dean is Off to a Bad Start in the Seventh Circuit

In a case that implicated the Supreme Court’s recent decision in Dean v. United States, — S.Ct. — 2017 WL 1199461 at *6 (April 3, 2017), this week the Seventh Circuit decided United States v. Wheeler, dkt. 16-3435, decided May 19, 2017.

Until recently, United States v. Roberson, 474 F.3d 432 (7th Cir.2007) required that the district court could not consider the mandatory minimum for the 924(c) when it crafted the sentence for the Hobbs Act robbery. That changed with Dean, where the Supreme Court held that “[N]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count.”

Wheeler pleaded guilty to a Hobbs Act robbery in violation of 18 U.S.C. §1951(a) and to discharging a gun during a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(iii). The district court sentenced him to 108 months for the Hobbs Act robbery, plus ten years consecutive for the 924(c). The guideline range on the robbery was 84-105 months. The Seventh Circuit opinion does not go into detail about the lower court’s reasoning on the sentence, other than to note that the court imposed an above guideline sentence for the robbery (three months above the high end of the advisory guideline) and to state that the record does not suggest that the district court felt constrained by Roberson. According to the Wheeler Court, “[I]t is inconceivable that a judge who imposed a sentence above the Guidelines range for the predicate crime did so because of Roberson.”

I think Wheeler takes too conservative of an approach to the question of whether Roberson impacted the sentence. First, the question is not whether the judge imposed the sentence because of Roberson. The question is whether the court would impose a different sentence in light of Dean. Second, it is conceivable to me that a district judge could decide that a robbery with a shooting requires a sentence above the advisory guideline range, but after consideration of the 3553 factors, the same situation merits less than the total of the robbery sentence, plus 10 years. After all, Roberson required the district court to impose the robbery sentence without consideration of the 924(c) sentence. That means that the judge was supposed to impose a sentence for the total package and then add the 924(c) sentence. If the court took this requirement to heart, it would have no reason to comment on what the total package would be in the absence of Roberson. For all we know, the district judge in Wheeler thought that in consideration of all of the 3553 factors, the robbery (including the firearm discharge) merited a sentence of 108 months and she imposed the 120 month consecutive sentence because Roberson required her to add the 924(c) sentence to the complete robbery sentence. The bottom line is that the only way to find out what the judge would have done without the constraint of Roberson is to remand.

In any event, at this point it looks like the Seventh Circuit may only grant remands in cases where there is a suggestion in the record that the court felt constrained by Roberson.

Posted in Federal Sentencing, Federal Sentencing Guidelines, Seventh Circuit Court of Appeals | Comments Off

New Rule for 924(c) Sentences

Section 924(c) provides for a mandatory consecutive sentence for use of a firearm during a crime of violence or drug trafficking crime. If the firearm was merely possessed, it is a five year mandatory minimum, plus the punishment for the underlying crime of violence or drug trafficking crime. If the weapon was brandished, it is a seven year minimum, plus the punishment for the crime of violence or drug trafficking crime. If the weapon is “discharged” the minimum jumps to ten years. Until recently in the Seventh Circuit, the district court could not consider the mandatory minimum for the § 924(c) when it crafted the sentence for the underlying crime of violence or drug trafficking crime. See United States v. Ikegwuonu, 826 F.3d 408 (7th Cir.2016). That meant that the district court could not impose one sentence for the total package. Instead, the court had to decide what the crime of violence or drug trafficking crime was worth and impose five, seven or ten years on top of that for the § 924(c). That all changes with Dean v. United States, — S.Ct. — 2017 WL 1199461 at *6 (Apr. 3, 2017), wherein the Supreme Court holds that “[N]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count.”

Dean should require a remand for resentencing for any factually applicable case still on or before direct appeal. The Seventh Circuit holds that it is procedural error for the district court to misapprehend the authority conferred under sec. 3553. See United States v. Powell, 576 F.3d 482, 499 (7th Cir. 2009). In my view, that is what occurred if the district court applied the now overruled directive set forth in Ikegwuonu.

Posted in Federal Sentencing, Federal Sentencing Guidelines, Seventh Circuit Court of Appeals | Comments Off

Investigator and Paralegal Skills Workshop, July 27-29, 2017, New Orleans, LA

Registration is now open for the Federal Defender Paralegal and Investigator Skills Workshop in New Orleans, LA on July 27th-29th, 2017.

Register here – https://etrak.fd.org/Login.aspx

The Paralegal and Investigator Skills Workshop is a hands-on program providing intensive training in several skills (e.g., interviewing, case management/organization, locating records and witnesses, analyzing documents) that are essential to the daily work of paralegals and investigators in federal defender offices or assigned to CJA panel cases. The program is designed to give participants the opportunity to learn by doing, using a combination of plenary sessions and interactive small group breakouts. In the small groups, participants practice the skills introduced in the plenary sessions, using the facts of a model case.

Because the workshop emphasizes essential skills, it is particularly valuable to new investigators and paralegals. Those with more experience will find it to be a useful refresher and an opportunity to share their knowledge with others. Please note that, due to the workshop format of this program, participants will be required to attend all sessions. Registration is limited to 70 participants. First priority in registration will be given to those who have never attended the
workshop in the past.

In order to attend this workshop, participants must be employees with paralegal and/or investigator duties in a federal defender office, or regularly perform such duties in conjunction with federal CJA panel attorney appointments.

For questions about the substance of the workshop, please contact Ubong E. Akpan at Ubong_Akpan@ao.uscourts.gov; for questions about registration or
other logistics, please contact Heidi Capati at Heidi_Capati@ao.uscourts.gov.

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CJA eVoucher unavailable from 7:00 p.m. on May 19 to 6:00 a.m. on May 22, 2017.

Due to an upgrade of the CJA eVoucher application to Version 5.0, eVoucher will be unavailable from Friday, May 19 at 7:00 pm – Monday, May 22 at 6:00 am.

Posted in CJA Rates and Reimbursement | Comments Off