US Sentencing Guidelines Amendments

The United States Sentencing Commission will be sending Guidelines amendments to Congress on May 1st, 2014.  The amendments will take effect November 1 unless Congress votes against them.

The amendments are not retroactive.  Because these amendments are favorable to defendant, counsel should argue for a variance and downward adjustment of the Guidelines Sentence Range if sentencing is to occur before November 1st.

Here is a link to a text of the amendments:

The news that concerns drug defendants is the two-point amendment to the Drug Quantity Table of 2D1.1.  While drug offenses are down two points, ceilings remain at 38 and certain drugs still retain a floor of 12.  A subject of controversy in the Commission, Attorney General Holder has directed US Attorneys not to oppose defense motions for a two-point downward variance in anticipation of the amendments.

Other amendments possibly favorable to defendants are these:

USSG 2K2.1 for a felon in possession (firearms or ammunition) enhancement will now be restricted to relevant conduct for the offense of convictions.

USSG 5G1.3, concerning a prisoner serving or anticipating a related state-court sentence, is being amended to require concurrent sentencing where the conduct of the state-court offense is deemed to be part of the “relevant conduct” (USSG 1B1.3) for the federal court offense of conviction

USSG 2L1.2 is being amended to allow the court to reduce the sentence of an alien already in detention when the Bureau of Prisons will not credit defendant alien for the sentence he is currently serving.

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Using the Holder Memorandum

Attorney General Eric Holder’s August 13, 2013 memorandum (the “Memorandum”) to Department of Justice Prosecutors creates new internal guidelines for charging mandatory minimum sentences (or filing an §851 information) in federal drug prosecutions. The Memorandum affects not only future charging decisions but also pending cases and applies to many defendants with lower criminal histories.

Defendants with pending cases should make a request in writing explaining why the Memorandum applies. Unless the request is made in writing, the AUSA assigned to a particular case may deny the defendant’s request out of hand without proper consideration. Counsel report that a written request will obtain supervisor review and offers a better chance for relief than merely asking the prosecutor who instituted the charges to change his decision. According to reports, a detailed written request obtained supervisor review and caused the supervisors to overrule the prosecuting AUSA’s refusal. This indicates that supervising Assistant US Attorneys are under some pressure to show compliance with the Memorandum.

While the four general criteria set out in the Holder Memorandum appear to exclude all but the most minor offenders, counsel have reported that defendants with multiple 851 predicates and kilogram-level drug weights are getting relief.

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What the Alleyne Decision Means


Alleyne v United States, No. 11-9335 ___ US ___ (June 17, 2013) Thomas, J., for the majority, Sotomayor, J., concurring, Breyer, J., concurring in part and concurring in the majority. Dissents by Roberts, C.J., and Alito, J.



The decision overrules Harris v. United States, 536 US 545 (2002).  Now mandatory minimum sentences will not apply unless pled in the indictment and found by a jury.  Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. The Court has now ruled that this distinction was inconsistent with Sixth Amendment law.  Apprendi v. New Jersey, 530 U. S. 466 (2000)(any fact that increases the penalty for a crime must be proved to a jury beyond a reasonable doubt).



 In this case, the government charged defendant with and convicted him of using or carrying “a firearm during and in relation to a crime of violence”.  18 USC §924(c)(1)(A).   The indictment did not charge the defendant with “brandishing” a gun during the commission of the crime, conduct which increases the mandatory minimum sentence from five to seven years.  The jury returned a verdict form which indicated that it made no finding on the question of whether the defendant had brandished a gun.  The trial judge determined on a preponderance of the evidence that the defendant had held or displayed the firearm and imposed the increased seven-year mandatory minimum sentence.



 Opinion at this link:



The decision requires the government to charge and the jury to find beyond a reasonable doubt every fact that increases the mandatory minimum penalty.  The decision changes the rule that a judge made findings on a preponderance of the evidence to apply a mandatory minimum sentence.  That means triggering factors for mandatory minimum penalties like loss values, drug weight or conduct with a firearm must be proved to the jury or admitted by the defendant before imposing a mandatory minimum sentence.  

 This changes the sentencing process fundamentally.  In the past, the government only needed to prove the facts of the crime without regard to mandatory minimum penalties; now the government must allege all the sentencing factors in the indictment and prove them beyond a reasonable doubt.

 Applying the mandatory minimum sentence was a process of rough estimation usually conducted in a short hearing without taking evidence.  Most defense counsel perceived it as unfair.  The sentencing judge often relied on the private recommendation of the US Probation Officer who wrote the Presentence Investigation Report.  Defendants would dispute loss values or specific instances of conduct but had no effective recourse.  While the Apprendi decision prohibited judges from determining maximum sentences in this fashion (the “default statutory maximum”), findings on mandatory minimums were a matter of judicial discretion.  In reality, federal sentencing is driven by long mandatory minimum sentences and the maximums are so high as to be irrelevant in most cases (unless the defendant had a lengthy criminal history).

 Alleyne will have its most obvious effect on the business of the federal criminal courts in drug (Controlled Substances Act) cases.   Drug weight determines sentences of five and ten years to first offenders and double or greater minimum sentences for repeat offenders. The government’s practice had been to charge the offense but not the weight of drug.  It remained for the judge at sentencing to make findings about drug weight and apply the applicable mandatory minimum. 



 This decision gives full effect to the rule of Apprendi that ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ must be proved to a jury.  As mentioned above, much of federal sentencing is driven by mandatory minimums.  A rule protecting the right to jury trial must encompass both maximum and minimum sentences.  Otherwise, the real issues in dispute are removed from the protections of the Sixth Amendment (right to jury trial) and given over to the abbreviated process of judicial fact finding.

 One possible implication of this case is lower average sentences where prosecutors will be less inclined to allege mandatory minimum sentencing factors.  Proving sentencing factors beyond a reasonable doubt to a jury will be more difficult than obtaining judicial findings.  On the other hand, defendants will be forced to admit more serious misconduct if they plead guilty.  They will foreclosed from arguing at sentencing against application of the mandatory minimum.   It is not possible at this time to predict the overall effect on average length of sentences.  The defense and the government frequently disagree on mandatory minimum sentencing factors.  It is possible that the courts will be conducting trials where sentencing factors are the only issue before the jury.



 While the decision is a victory for the Sixth Amendment right to trial by jury, it does nothing to limit a judge’s power to impose a longer sentence than the mandatory minimum.  As before, a judge may impose a sentence within the United States Sentencing Guidelines or an even greater sentence, so long as the sentence takes all the goals of the Sentencing Reform Act 18 USC §3553 into consideration.





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Reports 1.  Reports 2.  Reports 3.  Reports 4.

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GPS Tracking – Warrant Now Required

This document is adapted from ongoing federal criminal litigation.  It is offered to show some of the issues surrounding a motion to suppress GPS evidence.

Kevin L Barron Esq


A.            [omitted]

B.            Covert GPS Tracking.

1.            Employment of Covert GPS Tracking Devices.

The government has disclosed that, prior to obtaining authority for any wire taps, its agents employed four covert tracking devices at various times in their investigation.  Agents used the devices between [early 2009] and [late 2010] to monitor defendants and aid surveillance teams following then-targets [names deleted]. See, February 24, 2012 “Letter (non-motion) regarding GPS Discovery as to [defendant]” (Doc. 272). [1]  Agents also used receiving switch and cell site information, real-time information from a target’s cellular carrier that allowed agents determine the caller’s location when making or receiving calls.  See, May 30, 2012 Affidavit [of agent].

2.            GPS Devices and Their Impact on the Investigation

The tracking devices in issue are believed to be small, battery-powered transceivers that employ the global positioning system[2] to broadcast the precise longitude and latitude of their position.  Location is usually accurate within a circle of ten feet or less.  2012 [agent affidavit].   A government agent is then able to receive the signal from the device and remotely monitor the location of the subject in real time from a laptop computer, even in a moving car, at a distance the government has not divulged.  Id.  The device also stores historical GPS location data even when monitoring is not in progress.  2012 [agent affidavit].  The device allows agents to store the location data and access and analyze it at a later time.  Id.  The device even broadcasts automated messages (presumably in the form of emails or text messages to the agents), such as a notification that the target vehicle has moved after being stationary for hours.  2012 [agent affidavit].  Based on inferences from discovery, the devices are covert and capable of concealment for extended periods (more than a year) so long as the battery is changed periodically.  The government has refused to disclose additional facts in this regard. [3]

The surveillance reports and the [agent] affidavit indicate that agents were able follow their target without maintaining visual contact and thus avoid detection.  The devices also allowed agents to initiate surveillance without standing by at their target’s home or place of work; agents could start and stop surveillance as needed and relocate their target when they lost contact.

3.            Data Aggregation; Invasion of Privacy

In response to his request for discovery, counsel received electronic files of spreadsheets containing thousands of entries of longitude and latitude in tabular form.  Counsel received another electronic data file with many thousands of entries viewable in a computer web browser window in the form of a Google map.  Counsel believes that this kind of historical information is readily capable of analysis to determine in the applicable surveillance period: (1) how frequently defendant visited certain addresses; (2) how long the defendant stayed; (3) defendant’s usual routes of travel; (4) when the defendant is at work or home sleeping as indicated by stationary location.  Much of this information when analyzed would reveal facts of a highly personal nature, much of it unrelated to the investigation.  As examples, the government would be able to determine private facts about the defendant like: which doctor or specialist he was visiting and how frequently he was doing it (possibly indicating the state of his health and what illnesses he had); whether defendant visited his girlfriend (or whether he had more than one girlfriend); where defendant worked (or when he did not work); which stores, bars and restaurants he frequented, all leading to facts and inferences about defendant’s private life.




A.            Government Admits Facts that Violate US v. Jones

The Fourth Amendment prohibits the government from attaching a mobile locating device to a person’s car and any evidence so obtained or derived must be suppressed as a fruit of the poisonous tree.  United States v. Antoine Jones, 565 US __, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012).  In this case, the government admits unlawfully attaching such devices to [defendant’s] cars and using it to gather evidence against him over at least 97 days.  It likewise admits unlawful attachment of a device to the [co-defendant’s] vehicles.  The defense anticipates that the government will argue a good faith exception under US v. Davis, discussed infra, but that exception is unavailable here for the same reasons it was unavailable in Jones.

B.            Tainted Evidence

The extent of the evidence tainted by the government’s Fourth Amendment violation can only be fully determined after hearing.  (See, POINT II, infra.)  The data obtained from the device in real time enabled surveillance where it would not otherwise have been possible.  Review of the historical information it produced allowed agents to anticipate defendant’s movements and routines, thus further enhancing surveillance.  At a minimum, evidence such as the data produced by the device[4], the surveillance observations and the identity of alleged drug customers obtained during the monitoring period should be suppressed.  Lastly, to the extent a wiretap application relies on evidence derived from the unlawful attachment of these devices, intercepts conducted under tainted court authorization must be suppressed.

C.            Public Movements & Locations Protected Under Jones

Jones is a January 23, 2012 per curiam Supreme court decision authored by Justice Scalia, holding that the warrantless attachment of a GPS tracking device to an individual’s vehicle (as occurred in this case) and the subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search in violation of the Fourth Amendment’s guarantee that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Jones, 565 US __, slip op. supra at 3.  Notably, the concurrence of Justice Sotomayor reasoned further that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties… is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”  Justice Alito, joined by Justices Ginsburg, Breyer and Kagan, further reasoned that long-term electronic tracking of a person’s movements and location over a period of four weeks (like Jones) should be subject to the requirement of a warrant.

D.            This Case Presents More Serious Fourth Amendment Violation Than Jones

The facts of the case at bar present a more serious Fourth Amendment violation than what occurred in Jones.  Defendant nightclub owner Antoine Jones came under suspicion of participating in a large District of Columbia narcotics distribution ring.  Agents obtained a warrant to attach a GPS locator to Jones’s Jeep, but only attached the device outside the District a day after the warrant had expired.  The government’s device remained attached to Jones’s car for four weeks allowing the government to compile a list of the locations he had visited and to compare them to conversations recorded over court-authorized wiretaps.  US v. Maynard, 615 F.3d 544, 567-568 (DC Cir. 2010)(on appeal, Jones’s conviction reversed; Maynard’s affirmed).  The government used this information successfully in its closing argument that Jones was tied to the location at which 97 kilograms of cocaine and 850,000.00 were seized, a fact the DC Circuit noted in ruling that the error was not harmless.  Id. at 568.

In reversing Jones’s conviction, the DC Circuit rejected government arguments that a person could have no reasonable expectation of privacy in his movements over public ways.  Id. at 555.  Expressing a rationale adopted in Justice Scalia’s majority opinion, the DC Circuit distinguished Knotts in which the Supreme Court held that the use of a beeper to aid tracking a drug dealer over public roads and open fields to his laboratory was not a search.  See, United States v. Knotts, 460 US 276 (1983).  The Circuit Court of Appeals reasoned that Knotts explicitly recognized a distinction between the limited information discovered by use of beeper movements than the more sustained monitoring present in Jones’s case.  Id. at 556 citing Knotts 460 US supra at 283-284.            The Supreme Court later acknowledged this rationale in rejecting Knotts as controlling:

Knotts noted the “‘limited use which the government made of the signals from this particular beeper,'” [Knotts] 460 US, at 284; and reserved the question whether “‘different constitutional principles may be applicable'” to “‘dragnet-type law enforcement practices'” of the type that GPS tracking made possible here….

 Jones, 565 US __, slip op. fn 6, p. 10.

            In rejecting the application of the Knotts public space analysis to extended tracking, Jones acknowledges that older theories of privacy based in the law of trespass exist alongside the twentieth century Fourth Amendment jurisprudence based on a person’s “reasonable expectation of privacy”.  The seminal case concerning reasonable expectations of privacy is Katz. Katz v. United States, 389 US 347 (1967).  In an opinion authored by Justice Harlan with a concurrence by Justice Brennan, the court held that an eaves dropping device placed in a phone booth violated the Fourth Amendment.  The Katz Court reasoned that Fourth Amendment protected people and their reasonable expectations of privacy not places. Id. at 351.

E.            Jones Is Not New Law

Jones is not a new or novel legal theory.  As Justice Scalia wrote in his per curiam majority opinion:

In Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” “but did not “snuf[f] out the previously recognized protection for property.” 506 US at 64. As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 US at 286 (opinion concurring in judgment). We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 US 83, 88 (1998). Katz did not narrow the Fourth Amendment’s scope.

Jones, slip op., supra at 7.

F.            Data Aggregation – Broad Holding of Jones

The holding of Jones is not specifically limited to instances in which the government physically invades a property right by attaching or inserting an electronic device.  The aim of affirming Fourth Amendment protection against long-term electronic monitoring in Jones is to extend eighteenth century guarantees of liberty against incursion by twenty-first century technology. “At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted’.” Jones, slip op, p. 7 citing Kyllo v. United States, 533 US 27, 34 (2001)(High Court rejecting argument that scanning device to look through walls interpreting wave emissions in public view was like shining a flashlight into a window).

The protections of Jones are not burdened by limitation to property rights and the law of trespass.  “What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.”  Jones, slip op., pp. 10 – 11.  Defending his majority opinion from exactly such a criticism, Justice Scalia wrote:

For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals [such as those broadcast by a smart phone] without trespass would remain subject to Katz analysis.[5] [added by author]

Jones, slip op., p. 11.

The broader application of the rule of Jones to governmental collection of private electronic data is understood by reference to the Sotomayor concurrence.  While the Justice acknowledges that a Fourth Amendment violation occurs where the Government obtains information by physically intruding on a constitutionally-protected area, she highlights the broader applicability of the decision:

Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” In Katz, this Court enlarged its then-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.”  …[T]he trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case. [citations omitted]

 Jones, Sotomayor Concurrence, p. 1-2.  The Justice cites the majority (Slip op. p. 11) that “transmission of electronic signals without trespass would remain subject to Katz analysis.”  Sotomayor Concurrence, p. 3.

The Sotomayor concurrence also notes how GPS monitoring generates a comprehensive record of a person’s public movements that reflects details of “familial, political, professional, religious, and sexual associations”. Id.  The Justice cites the New York Court of Appeals’ decision in People v. Weaver, 12 N. Y. 3d 433, 441-442 (2009) as illustrative of the Fourth Amendment intrusion:

‘Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”. The Government can store such records and efficiently mine them for information years into the future.  Id.




            The surveillance observations, wire intercepts and physical evidence are tainted by Fourth Amendment violation and should be suppressed as fruits of an illegal search.  At a minimum, a hearing will be necessary to determine “whether, granting establishment of the primary illegality, the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”.  Wong Sun v. United States, 371 US 471, 488 (1963).  The First Circuit has had recent occasion in US v. Angel Camacho to construe the rule of Wong Sun in ordering suppression of an automatic pistol seized in an unlawful Terry stop:

Evidence obtained during a search may be tainted by the illegality of an earlier Fourth Amendment violation, so as to render such evidence inadmissible as “fruit of the poisonous tree.” See United States v. D’Andrea, 648 US 1, 6 (2011) (quoting Wong Sun v. United States, 371 US 471, 488 (1963)) (internal quotation marks omitted);… “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.'” Segura v. United States, 468 US 796, 804 (1984) (citation omitted) (quoting Nardone v. United States, 308 US 338, 341 (1939)). This rule equally extends to both the direct and the indirect products of unlawful searches and seizures. See Wong Sun, 371 US at 484. “[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” New York v. Harris, 495 US 14, 19 (1990). Suppression is not appropriate, however, if “the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.'” Segura, 468 US at 805 (quoting Nardone, 308 US at 341).

Determining the consequences of unlawful police conduct for seized evidence requires looking at both causation and attenuation. The Supreme Court has declined to adopt a simple “but for” test that would mandate suppression of any evidence that “came to light through a chain of causation that began with an illegal arrest” or another Fourth Amendment violation. United States v. Leon, 469 US 897, 910-11 (1984); see also Hudson v. Michigan, 547 US 586, 592 (2006) (“[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.”). A strict but-for rule would prove nearly limitless. “Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'” Wong Sun, 371 US at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, “temporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant.” Brown, 422 US at 603-604.

US v. Angel Camacho, 661 F.3d 718 (1st Cir. 2011)(reversing district court’s denial of motion to suppress; reasoning that resistance to arrest did not give not supervening grounds to seize pistol where officers first made unlawful Terry stop and discovered pistol during initial pat frisk).




            Defendant cannot fully address the government’s anticipated reliance on a “good faith” exception under  Davis v. US, infra, until the government provides materials concerning the authorization procedures the government mentioned in its February 24, 2012 letter (Doc. 272). The government used these authorization procedures in this case presumably to assure agents’ compliance with constitutional standards.

The government clearly possesses materials relevant to a Davis inquiry that it refuses to disclose:

Prior to installation, agents obtained authorization to install the device from their Supervisory Special Agent, the Assistant Special Agent in Charge, and the Chief Division Counsel.  The Supervisory Special Agent and the Chief Division Counsel further approved the above-described installation location.

[Government’s Letter]  The defense requested additional discovery under LR 116.3 by [letter], specifically requesting materials about reliance on the good faith/retroactivity exception provided by Davis.  See, US Davis v. US, 564 US __, 131 S.Ct. 2419 (2011) (applying Leon “good faith” exception to officers conducting a search expressly permitted under law existing when search occurred but was overturned or modified to render search unlawful).  The government refused defendant’s request by letter  “… [W]e will address that request if and when the Court determines an evidentiary hearing is necessary.”  (Doc. [])  At hearing on [defendant’s] motion to compel discovery, the government opposed disclosure (and the magistrate agreed) that disclosure of such materials would be “premature”.  (Order on motion for discovery, Doc. [].)

At the risk of arguing “prematurely”, the government cannot avail itself of the protections of DavisDavis applies only when ” An officer who conducts a search in reliance on binding appellate precedent does no more than act as a reasonable officer would and should act under the circumstances.”  Davis, supra.  In no event can the government show that it has “conducted a search relying on binding appellate precedent”. To the contrary, the attachment of a mobile location device is the subject of a specific statute, 18 USC §3117.  Moreover, agents in Jones knew as early as 2004 that reliance on Knotts was untenable in light of Kyllo. United States v. Knotts, 460 US 276 (1983); Kyllo v. United States, 533 US 27, 34 (2001).


            Defendant’s motion to suppress should be granted for the reasons set forth above.

Kevin L Barron, Attorney for Defendant


[1] This letter contains, among other facts, the identity of the tracked vehicles, the locations and dates of attachment of the device, the dates for which stored data was retained, admissions concerning the absence of a warrant and lack of permission to attach devices or enter on property and a statement that the government will not use the stored GPS data in its case in chief.

[2] The Global Positioning System (GPS) is a space-based satellite navigation system that provides location and time information anywhere on Earth, where there is an unobstructed line of sight to four or more GPS satellites. It is maintained by the government and is accessible free of charge to anyone with a GPS receiver.

[3] The government has refused disclosure of certain requested discovery items such as technical specification of the devices, the DOJ policy materials that allowed warrantless attachment, identification of agents and other material.  The requested material is relevant to the scope of the Fourth Amendment intrusion and the expected claim of the government that it believed in good faith that a warrant was unnecessary.  See, (relevant to “good faith” exception under US v. Davis, 131 S.Ct. 2419 (2011).  The government invoked an investigative secrecy privilege which is the subject of defendant’s pending objections to the Magistrate’s report and recommendation on the discovery motion.

[4] The government informs that it “does not intend to introduce” the GPS data in its “case in chief”. February 24, 2012 letter, p. 3, (Doc. 272).

[5] The government cannot fairly argue that this portion of the Jones opinion is dicta.  Indeed, the decision is per curiam precisely because all justices agree that the government violates a person’s reasonable expectation of privacy by obtaining private information that reveals private facts about the person’s life.

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Dookhan:  State Police Investigation Reports.  Four documents attached containing investigation reports by Massachusetts SP detectives of the Department of Public Health Laboratory are published above.

Annie Dookhan falsified drug test results and compromised evidence samples in tens of thousands of cases at the Massachusetts Department of Public Health “DPH” laboratory in Jamaica Plain between January 1, 2003 and March 2012. Officials admit that more than 60,000 samples were compromised and 34,000 cases may be affected. They claim she was a “rouge” chemist. Calling her a “rogue” implies that the Commonwealth may not be prepared to admit that other cases in the DPH lab were compromised.

According to a transcript obtained by The Associated Press of the Massachusetts chemist’s testimony in the 2010 Suffolk County of defendant Larry Blue, the chemist testified that she ran “quality control/quality assurance” within the lab. In response to a prosecutor’s question whether she had special responsibilities at the lab, she testified: “I run the quality control/quality assurance within the drug lab.” She testified further that it was her responsibility “to make sure the balances are working appropriately, the machines are working appropriately, all the instruments are followed by the policies and procedures,” and other duties. See Albany Times Union Article.

The Department of Public Health has created a database for attorneys. It has restricted access because it contains criminal history data that is confidential by law. It contains what is probably a non-exclusive list of affected cases. Massachusetts has also released to the bar a raft of investigative reports summarizing state police questioning of Dookhan and other lab employees, attached above. This represents a significant change in the official posture toward the investigation. Only a week ago, prosecutors had announced that information would only be released under a protective order.

Other Mass state laboratories are not affected. DEA and FBI laboratories are not implicated. The only possibility that another laboratory’s results may be affected exists where the sample came into the DPH laboratory’s possession in the chain of custody.

The reader should bear in mind that the scandal may or may not compromise the results of other chemists at the DPH lab. Also remember that other, untainted samples may exist in a defendant’s case. Thus, even if a defendant were to get a new trial, the Commonwealth may be able to produce admissible drug evidence.  In other cases, convictions on companion counts may mean that a reversal of the drug conviction has no effect on the sentence to serve.

Who may be affected by the DPH Lab scandal?

Defendants convicted of narcotics offenses in state or federal cases where the DPH chemist tested or certified the drug evidence between January 1, 2003 and March 2012.

Defendants subjected to enhanced (longer) sentences on the basis of a prior conviction on a DPH drug test between January 1, 2003 and March 2012.

What can be done?

Defendants need to consult their attorneys at the nearest opportunity. The first attorney to contact is the one who represented the defendant in the offense of conviction. Massachusetts allows a collateral attack (a motion for a new trial or motion to withdraw a guilty plea) at any time where it may appear that justice was not done. Federal habeas corpus litigation, on the other hand, is subject to the Anti-Terrorism and Effective Death Penalty Act of 1996 which enforces a one-year statute of limitations period. This period would begin to run at the latest on the date the defendant discovered his claim that lab results were falsified. (It might begin to run earlier if the defendant should have discovered the compromised drug test results.)

Defense attorney organizations, public counsel services and state and federal prosecutors are all reviewing their cases to determine which of these may be affected. Priority is being given to the cases of incarcerated defendants.

The implications of the scandal are not fully understood. The questions are not simple from a criminal defense lawyer’s perspective. For example: What if a defendant has been convicted of multiple offenses in the same trial and been given concurrent sentences? Will courts accept an argument that the jury’s verdict on all counts was affected by the drug evidence and that a new trial is warranted? What if the defendant has been subject to federal career offender treatment or an enhancement under 21 USC 851 based on predicate convictions with DPH drug testing? Can a sentencing judge find that the court’s determination would not have been affected? Can a judge take the underlying prior drug conduct into account at sentencing even though the predicate conviction was invalid?

Wrongly-convicted defendants and their counsel should consider the possibility of civil litigation. Massachusetts law, however, limits judgments against the Commonwealth and places preconditions and special limitations periods on suit.

I remind the reader that this section is written for information purposes. The consequences of this scandal to individual defendants may be far reaching. You should not consider this legal advice; it is an alert to persons who may be affected. To get meaningful advice, you will need an experienced, qualified lawyer to review all the pertinent information and records.

Kevin Barron
September 23, 2012

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Sykes: A Retreat from Limiting ACCA Crime of Violence Definition


This bulletin is for defendants charged in the federal courts as felons in possession facing enhancement under §924(e) and, indirectly, for those facing Guidelines sentencing as a Career Offender. The Supreme Court’s most recent decision in Sykes on the subject of what constitutes a “violent felony” appears to be at least a temporary setback to what had appeared to be a trend limiting application of the Armed Career Criminal Act to only those defendants with a history of convictions for crimes involving purposefully aggressive conduct.

What is the Armed Career Criminal Act? The ACCA imposes a 15-year mandatory prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or “a violent felony,” 18 U. S. C. §924(e)(1), defined as a crime punishable by more than one year’s imprisonment that, inter alia, “involves conduct that presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii).

Why is it important? The Act is supposed to present a three-strikes rule to put away criminals with a history of serious violence. The problem with the Act historically has been that the statute was over extended or applied to individuals with minor criminal records involved in typically non-violent offenses – for example, repeat drunk driving felony conviction (Begay, infra) or failing to report to serve a prison sentence (not escape) after a defendant has been given post conviction bail and ordered to present himself at a jail or prison to serve a sentence (Chambers). Everyone would agree that convictions for robbery, arson, extortion, kidnapping, murder, rape and other such misconduct are crimes of violence. But the criminal law has often been extended by statute to include non-violent misconduct under the same statutory sections and definitions as misconduct generally acknowledged to be violent felonies – for instance, an arson conviction for burning a car to collect insurance proceeds (arson is defined at common law as intentionally setting a fire that causes the material wasting of a dwelling house).

At issue in all recent litigation is the meaning of the statute’s residual or “catch-all” clause:
The Act defines a “violent felony” as a “crime punishable by imprisonment for a term exceeding one year” that also either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or other.” §924(e)(2)(B), the ACCA’s so-called residual clause

See, Begay v. United States, 553 U.S. 137 (2008) (drunk driving crimes cannot be a crime of violence predicate) Applicable statutes 18 USC §§ 922(g) 924(e) 924(g) 924(c)

See, also Chambers v. United States, 555 U. S. 122 (2009) (failing to report for incarceration does not qualify as a “violent felony” for the purposes of the Armed Career Criminal Act (18 U.S. 924 (e)).

For purposes of ACCA’s definitions, it is the generic crime that counts, not how the crime was committed on a particular occasion. Taylor v. United States, 495 U. S. 575, 602. This categorical approach requires courts to choose the right category, and sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect. The state statute at issue places together in a single section several different kinds of behavior, which, as relevant here, may be categorized either as failure to report for detention or as escape from custody. Failure to report is a separate crime from escape. Its underlying behavior differs from the more aggressive behavior underlying escape, and it is listed separately in the statute’s title and body and is of a different felony class than escape. At the same time, the statutory phrases setting forth the various kinds of failure to report describe roughly similar forms of behavior, thus constituting a single category. Consequently, for ACCA purposes, the statute contains at least two separate crimes, escape and failure to report.

The “failure to report” crime does not satisfy ACCA’s “violent felony” definition. Although it is punishable by imprisonment exceeding one year, it satisfies none of the other parts of the definition. Most critically, it does not “involve conduct that presents a serious potential risk of physical injury to another.” Conceptually speaking, the crime amounts to a form of inaction, and there is no reason to believe that an offender who fails to report is otherwise doing some- thing that poses a serious potential risk of physical injury. The Government’s argument that a failure to report reveals the offender’s special, strong aversion to penal custody—pointing to 3 state and federal cases over 30 years in which individuals shot at officers attempting to recapture them—is unconvincing. Even assuming the relevance of violence that may occur long after an offender fails to report, the offender’s aversion to penal custody is beside the point. The question is whether such an offender is significantly more likely than others to attack or resist an apprehender, thereby producing a serious risk of physical injury. Here a United States Sentencing Commission report, showing no violence in 160 federal failure-to-report cases over 2 recent years, helps provide a negative answer.

The Supreme Court’s opinion in Johnson last year provided the clearest guidance to the lower courts to date that a conviction did not qualify as a crime of violence unless is involved purposeful aggressive conduct. United States v. Johnson (2010) Scalia, writing for the majority, concluded that the term “force” contemplates strength or energy, violence, and pressure directed against a person – that is, a degree of power not satisfied by the merest touching. The Court reasoned that the meaning of a statute is ultimately determined by its context, as it declined to “‘force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.’” The Court deemed it clear that, in the context of a statutory definition of “violent felony,” “physical force” means violent force.

Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use … of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i), sentencing defendant to a term of 15 years.

A clear retreat from the bright-line rules established by Begay, Chambers and Johnson, all, supra, occurs in the High Court’s most recent decision, Sykes, a decision where the majority, Kennedy, instructs not to “read too much into” earlier decisions. Sykes v United States, No. 09–11311, decided June 9, 2011 (Kennedy, J.)(predicate convictions include an Indiana-law offense for eluding police in a motor vehicle that does not contain an element of violent conduct such as high speed chase, an assault with the vehicle or a crash). When punishable by more than one year in prison, Justice Kennedy reasoned, burglary, arson, extortion, and crimes that involve use of explosives are “violet felonies”. Under the residual clause a crime is also a crime of violence when it “otherwise involves conduct that presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii), i.e., “comparable to that posed by its closest analog among” the statute’s enumerated offenses. When defendant flees from police in a car, his determination to elude capture makes a lack of concern for the safety of others part of the offense, even if he drives without going full speed or the wrong way. Such a defendant, the argument goes, creates the possibility that police will exceed or almost match his speed or use force to bring him within their custody. A fleeing criminal who creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others. Also telling is a comparison to burglary, which is dangerous because it can end in confrontation leading to violence. In fact, the risks associated with vehicle flight may outstrip the dangers of both burglary and arson.

Justice Kennedy rejected Sykes’ argument that Begay v. United States, 553 U. S. 137, and Chambers v. United States, 555 U. S. 122, require predicate crimes to be purposeful, violent, and aggressive in ways that vehicle flight is not over reads those opinions. In general, levels of risk divide crimes that qualify as violent felonies from those that do not. Chambers is no exception: It explained that failure to report does not qualify because the typical offender is not “significantly more likely than others to attack, or physically to resist, an apprehender.” Begay, which held that driving under the influence (DUI) is not an ACCA predicate and stated that it is not purposeful, violent, and aggressive, 553 U. S., at 145–148, is the Court’s sole residual clause decision in which risk was not the dispositive factor. But Begay also gave a more specific reason for its holding: DUI “need not be purposeful or deliberate,” id., at 145, and is analogous to strict-liability, negligence, and recklessness crimes. Begay’s “purposeful, violent, and aggressive” phrase is an addition to the statutory text that has no precise link to the residual clause. Because vehicle flight is not a strict-liability, negligence, or recklessness crime and is, as a categorical matter, similar in risk to the crimes listed in the residual clause, it is a violent felony.

The recent ACCA litigation is of special importance to District of Massachusetts felon in possession defendants. A felony is usually a crime punishable by a year or more of imprisonment. In practical terms, most Massachusetts minor crimes are punishable as house of correction sentences of up to 2.5 years, a felony under the operant federal definition.

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