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Earlier this week, the Second Circuit issued a decision in United States v. Dickerson, vacating a federal drug conspiracy conviction. In so doing, the Court of Appeals affirmed important limitations on the scope of conspiratorial liability.

In simplest terms, a criminal conspiracy is an agreement of two or more persons to engage in unlawful conduct. Individuals found to be part of a conspiracy can be held liable (punished) for any foreseeable act that a conspirator commits in furtherance of the conspiracy. Although conspiracy liability tends to be far-reaching, courts have held that a mere buyer-seller relationship cannot sustain a drug trafficking conspiracy charge.

In United States v. Parker, 554 F.3d 230 (2d Cir. 2009), the Second Circuit spoke to these principles when it found that “[a]s a literal matter, when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer. According to the customary definition, that would constitute a conspiracy with the alleged objective of a transfer of drugs.” Concurrently, the Parker court recognized that, standing alone, the purchase and sale of drugs does not amount to a drug distribution conspiracy.

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Criminal defense lawyers are seldom satisfied. Perhaps it’s the law or the rules that govern the work we do, which are not generally defendant-friendly. Or perhaps it’s our natures, to be always seeking more for those we represent. Regardless, one thing about which most federal practitioners in the District of Connecticut can agree is the quality of the bench in front of which we appear. Informed by colleagues from other parts of the country, Connecticut’s defense attorneys share an open, though closely held secret: our judges are among the best in the nation, and our District is one of the most pleasant in which to work.

It is against this backdrop that word came just before Christmas that Assistant Federal Public Defender (AFPD) Sarah Merriam has been appointed our newest Magistrate Judge, replacing the soon-to-retire, well respected Honorable Holly Fitzsimmons. Sarah is a known quantity in many Connecticut legal circles. She clerked both for our former Chief Judge and for a Circuit Judge; she was an associate at a highly regarded criminal defense firm; she was the campaign manager in a successful bid for a Congressional seat; she is active in the CBA’s Federal Practice Section; and she is a member of the Federal Grievance Committee. However, it has been in her role as an AFPD the past seven years that Sarah has arguably had the greatest impact, not only on her office and on behalf of the indigent clients she serves but also on the defense community as a whole.

You see, Sarah is the person everyone turns to with questions. A Yale Law School graduate, Sarah is the proverbial smartest person in the room, though you wouldn’t necessarily know it from speaking with her because she does not put on airs. What you know is that if you call or e-mail Sarah with a question, no matter how difficult or banal, she will get back to you shortly, with a concise, correct answer.

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Following news of Attorney General Eric Holder’s intention “to leave the Justice Department as soon as his successor is confirmed” comes a story today from Joe Palazzolo at the Wall Street Journal that next week the Attorney General will announce a significant shift in DOJ policy: “federal prosecutors no longer will ask criminal defendants who plead guilty to waive their right to appeal over bad legal advice.” I wrote about these untenable waivers several years ago:

[…]waiving the right to challenge constitutional and other legal errors concerning the process by which a conviction is obtained is another matter entirely, and thus a cause for concern as it pertains to the appeal and postconviction waiver language that federal prosecutors routinely insert into plea agreements consistent with the U.S. Attorney’s Manual. (See 9 USAM: Criminal Resource Manual 626.) These provisions look to leave defendants with no meaningful chance at postconviction relief regardless of whatever meritorious issue may later present.[…]

An equally obvious problem is that these waivers work to insulate the plea and government and defense counsel’s respective actions from any review. Importantly, ethics bodies in five of six jurisdictions, which have considered the question, have issued opinions excluding ineffective assistance of counsel claims from the scope of permissible postconviction waivers.

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Our firm has handled a number of child pornography cases, especially within the past few years as the FBI and the U.S. Attorney’s Office for the District of Connecticut have made these cases a high priority.  In every one of these cases, the U.S. Attorney’s Office has a standard practice of sending out notices to the victims who have been identified as being in the pictures and videos possessed by the defendant.  This can result in the victim filing a claim for full restitution from the defendant – sometimes seeking hundreds of thousands of dollars.   One of the challenges of these cases is that the victim frequently argues that the defendant must pay the full amount of the losses, even where the evidence shows that the defendant did not know or have any direct contact with the victim, and even where the defendant may have been only one of thousands of anonymous possessors of the images available for download from the Internet.

In Paroline v. United States, No. 12-8561, the U.S. Supreme Court finally addressed the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim in this type of a situation.  In a 5-4 decision, the Court rejected the victim’s claim that each defendant is responsible for all of the victim’s claimed losses.  Instead, in the majority opinion written by Justice Kennedy, the Court held that the sentencing court must engage in a flexible, apportionment-type analysis:

Where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses….The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child pornography crimes, even simple possession, affect real victims.

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So begins the discussion section of United States v. McLaurin, — F.3d –, Docket No. 12–3514–cr. (2d Cir., Oct. 3, 2013), a recent Second Circuit opinion holding penile plethysmography, as a condition of supervised release for a defendant convicted of a SORNA violation, “unreasonably intrusive and unrelated to the permissible goals of sentencing.” “What is penile plethysmography?” you might ask. Why not let the distinguished judges of the Court of Appeals explain:

[The plethysmograph] examination involves the use of a device known as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

In my past life as a sentencing advocate, I worked at an organization that provided treatment for sex offenders and employed a plethysmograph as part of the therapeutic process. While unfamiliar with the referenced method to baseline testing equipment, from what I was told by those who administer the examination the above is fairly accurate.

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Federal defendants sentenced to a term of imprisonment are typically subject to a period of post-release supervision known as supervised release. While the length of a supervised release term is governed by statute and the Sentencing Guidelines, several years or more is common. By law, a court can terminate a term of supervised release after one year “if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” Obtaining early termination is often easier said than done.

This month’s issue of the Federal Probation Journal (a generally excellent resource) includes an article that provides useful empirical support for the early termination of supervised release: Continue reading

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On August 12, following a speech to the American Bar Association, Attorney General Eric Holder issued a memorandum announcing a change in Department of Justice policy with respect to the charging of offenses that carry mandatory minimum sentences as well as to the pursuit of recidivist enhancements in certain drug cases. As the New York Times reports:

The policy applies to defendants who meet four criteria: their offense did not involve violence, the use of a weapon, or selling drugs to minors; they are not leaders of a criminal organization; they have no significant ties to large-scale gangs or drug trafficking organizations; and they have no significant criminal histories.

While the policy shift was widely lauded, the memorandum raised a number of questions concerning its application, particularly to then existing cases. Today, the Attorney General issued a new memorandum offering guidance regarding application of the August 12 memorandum to cases charged before that date. Again, from the Times: Continue reading

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As noted, today the Senate Judiciary Committee held a hearing concerning reform of federal mandatory minimum sentencing laws. From Families Against Mandatory Minimums comes this report:

At a packed public hearing of the U.S. Senate Judiciary Committee, a former federal prosecutor and the director of a conservative criminal justice reform group called on U.S. Senators to roll back federal mandatory minimum sentencing laws. These witnesses told committee members that one-size-fits-all penalties do more harm than good, a message confirmed by the dozens of FAMM members who traveled from across the country to attend the hearing.[…]

Judiciary Committee chairman Sen. Patrick Leahy (D-VT), the co-author with Sen. Rand Paul (R-KY) of the Justice Safety Valve Act of 2013, said, “The number of mandatory minimum penalties in the federal code nearly doubled from 1991 to 2011. Many of those mandatory minimums originated right here in this Committee room. When I look at the evidence we have now, I realize we were wrong. Our reliance on a one-size-fits-all approach to sentencing has been a great mistake. Mandatory minimums are costly, unfair, and do not make our country safer.”

Sen. Paul told committee members, “Each case should be judged on its own merits. Mandatory minimums prevent this from happening. Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives.”

Continue reading

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That is the subject line of the below e-mail, which I received from Families Against Mandatory Minimums’ Molly Gill earlier today. For those in the DC Area next week or able to travel, it’s a hearing worth attending:

We are excited to announce one of the biggest federal sentencing reform events of the year — and your presence is needed to make it a success.

On Wednesday, September 18, 2013, at 10:00 a.m. EST, the Senate Judiciary Committee of the U.S. Congress will meet in Washington, D.C., to hear from a panel of witnesses describing the need to reform federal mandatory minimum sentencing laws. This hearing is important because it is the first step toward passing S. 619, the Justice Safety Valve Act, or S. 1410, the Smarter Sentencing Act. If passed, either bill would bring big changes to federal mandatory minimum sentences.

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Yesterday, U.S. Sentencing Commission Vice Chair Ketanji Brown Jackson testified at a confirmation hearing before the Senate Judiciary Committee concerning her nomination to serve as a district judge for the U.S. District Court for the District of Columbia. As reported by The Blog of Legal Times, in response to a question from Senator Chuck Grassley (R-Iowa), Commissioner Brown Jackson mentioned that the Commission will soon publish a report concerning sentencing post-Booker.

Grassley also asked Jackson about sentencing practices in the D.C. court, saying he was under the impression that local judges were frequently issuing sentences the departed from federal guidelines. Jackson said the commission was finishing a nationwide analysis of sentencing data, but added that the commission was “concerned” about the trend of more judges issuing sentences outside of the guidelines in certain types of cases. She didn’t speak specifically to the D.C. court.

Last week, the Federal Public and Community Defenders submitted a detailed letter to the Commission in an effort to ensure that its “report on sentencing after Booker v. United States, 543 U.S. 220 (2005) might present the issues in a complete and balanced way.” The Defenders “urge the Commission to include the following information in its report for the reasons that follow: