tag:blogger.com,1999:blog-73835037402777063362012-02-16T11:49:30.352-06:00Welcome to the Federal Public Defender, District of Kansas Blog.Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.comBlogger1451100tag:blogger.com,1999:blog-7383503740277706336.post-9377698054996927362012-01-30T13:33:00.003-06:002012-01-30T13:38:54.131-06:00

From January 30, 2012 edition of The National Law JournalMeet Justice Samuel Alito Jr.: Cyberpunk in robes? Alito's concurring opinion in the U.S. Supreme Court's recent decision involving the Fourth Amendment and GPS surveillance triggered as many conflicting reviews among scholars, court watchers and others as the justices' decision itself. In U.S. v. Jones, a majority of the Court on Jan. 23

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-31926341120425076542011-10-19T08:59:00.003-05:002011-10-19T09:32:19.074-05:00

An Article in the September 26, 2011 The New York TimesAfter decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the treat of more serious charges with mandatory sentences or other harsher penalties.Some experts say the process has become coercive

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-29290442820248501242011-09-22T16:19:00.003-05:002011-09-22T16:31:16.650-05:00

From the National Law Journal, September 19, 2011 by Allison M. Lefrak "The longer cases are delayed, the more credibility the U.S. judicial system loses."http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202514592032&Justice_denied_at_Guantaacutenamo&slreturn=1

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-64514050416375429932011-08-08T14:13:00.007-05:002011-08-08T14:25:26.522-05:00

Jeff John Roberts - New York (Reuters) U.S. law-enforcement agencies are increasingly obtaining warrants to search Facebook, often gaining detailed access to users' accounts without their knowledge. A Reuters review of the Westlaw legal database shows that since 2008, federal judges have authorized at least two dozen warrants to search individuals' Facebook accounts. Many of the warrants

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-1962411576065603732011-08-08T14:00:00.003-05:002011-08-08T14:02:16.912-05:00

Some of the most frequently asked questions related to the Retroactive Crack Cocaine Guideline Amendement can be viewed at the USSC website: http://www.ussc.gov/Meetings_and_Rulemaking/Materials_on_Federal_Cocaine_Offenses/FAQ/index.cfm

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-88036198150395786352011-07-01T12:48:00.002-05:002011-07-01T12:52:06.632-05:00

Food for thought....Yesterday, the Justice Policy Institute (JPI) released a report chronicling the political strategies of private prison companies “working to make money through harsh policies and longer sentences.” The report’s authors note that while the total number of people in prison increased less than 16 percent, the number of people held in private federal and state facilities increased

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-48090948563939515302011-04-29T09:58:00.005-05:002011-04-29T11:26:20.670-05:00

Joe Windish, Technology Editor in LAW, SCIENCE & TECHNOLOGY posted recently on The Moderate VoiceHave you ever wondered how it is that if your hard drive or mine fails, there’s no hope of ever recovering a thing from it. But if the police get the same hard drive they explain that there’s no way to completely delete anything on it?Computer data is volatile and a good computer forensics expert must

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-61245027372713081412011-04-25T13:32:00.005-05:002011-04-25T13:44:03.907-05:00

From the April 14, 2011 edition of The Wall Street Journal, Nathan Koppel reportsStates and counties struggling to balance their budgets are cutting spending on public defenders, a move some lawyers say is compromising defendants' constitutional right to counsel. Providing for that right, enshrined in 1963 Supreme Court ruling, has grown increasingly expensive amid a dramatic rise in arrests and

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-29137608611326133342011-04-22T09:52:00.003-05:002011-04-22T10:32:39.626-05:00

From the New York Times April 19, 2011 EditionThe federal judiciary is in something like open rebellion over a new law addressing the sentences to be meted out to people convicted of selling crack cocaine.A couple of weeks ago, for instance, a judge in Massachusetts said he found it “unendurable” to have to impose sentences that are “both unjust and racist.”The new law, the Fair Sentencing Act of

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-45968185770049450332010-12-28T15:36:00.003-06:002010-12-28T15:40:11.656-06:00

The Facebook page and Twitter accounts for the Kansas Federal Defender have been removed.

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-27301371825561837922010-09-30T15:02:00.006-05:002010-09-30T15:07:02.867-05:00

The Pew Charitalbe Trusts released a new report today that quantifies the impact of incarceration on the economic mobility of former inmates and their families. Collateral Costs: Incarceration’s Effect on Economic Mobility is a collaborative effort between the Pew Charitable Trusts' Economic Mobility Project and its Public Safety Performance Project (PSPP). The report examines the impact of

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-3971170423467426162010-07-28T13:46:00.003-05:002010-08-11T08:59:23.579-05:00

The Fair Sentencing Act of 2010 would raise the minimum quantity of crack cocaine that triggers a 5-year mandatory minimum from 5 grams to 28 grams, and from 50 grams to 280 grams to trigger a 10-year mandatory minimum sentence. The amount of powder cocaine required to trigger the 5 and 10-year mandatory minimums remains the same, at 500 grams and 5 kilograms respectively. The legislation also

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-26041525257103725362010-07-22T14:17:00.004-05:002010-07-22T15:37:37.355-05:00

As reported Wednesday, July 21, 2010 in a White House press release, President Obama nominates Kathleen M. Williams to United States District Court judgeship.Nominee for the United States District Court for the Southern District of Florida Kathleen M. Williams has served as the Federal Public Defender for the Southern District of Florida since 1995. She previously served in the same District as

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-89522746663980007232010-07-16T15:31:00.009-05:002010-07-16T16:15:12.219-05:00

New York Times reports that on Thursday, a federal judge, John G. Koeltl of the Southern District of New York, increased the sentence of Lynne F. Stewart, a disbarred lawyer convicted of assisting terrorism, to 10 years — nearly five times as long as her original sentence. The Court of Appeals for the Second Circuit had ordered the judge, to resentence Ms. Stewart after it deemed his first

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-74488917381530476922010-06-30T15:19:00.011-05:002010-07-01T09:12:55.496-05:00

The New York Times reports today that an appeals court struck down the first successful federal capital-punishment sentence in New York State in more than 50 years on Wednesday, overturning the death sentence given to a Staten Island man convicted of killing two undercover New York City police detectives in 2003.The three-judge panel of the Federal Appeals Court for the Second Circuit, overturned

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-10511401162546603572010-06-23T09:45:00.006-05:002010-06-23T11:43:47.535-05:00

On DCBureau.org website, Niamh Marnell details some scary information about our BOP.Communications Management Units (CMUs), nicknamed “Little Gitmo” by the inmates for the resemblance to the Guantanamo Bay prison, are coming under criticism for their controversial policies, constitutionality, and secrecy. Prisoners assigned to these units cover a broad interpretation of the “War on Terror,” from

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-14289080083728767932010-06-22T08:44:00.006-05:002010-06-22T15:32:59.658-05:00

DesMoinesRegister.com headlined "Shalom Rubashkin to receive 27-year prison sentence," reports on the severe sentencing outcome in a high profile federal white collar case out of Iowa. Here are the early details:Sholom Rubashkin will receive a 27-year federal prison sentence on Tuesday for his leadership in the financial fraud scandal at Agriprocessors Inc., a judge declared today.U.S. District

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-87702460569074566612010-06-10T16:54:00.010-05:002010-06-11T09:02:31.525-05:00

Many criminal defense attorneys have been concerned that Justice Sonia Sotomayor might be more conservative than Justice Souter, whom she replaced on the U.S. Supreme Court. David Savage of the L.A. Times provides us with an early report card: Last week, Sotomayor wrote her first strong dissent in a 5-4 decision holding that a suspect who is warned of his rights and fails to "unambiguously" call

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-7574289239198066052010-05-17T13:29:00.001-05:002010-05-17T14:13:12.901-05:00

Today, SCOTUS said that we cannot imprison juvenile offenders for life without parole.  It is a well-reasoned decision, Graham v. Sullivan, written by Justice Kennedy, and has some good general discussion of sentencing goals, some worth incorporating into our sentencing memoranda. Example: "Knowledge accumulates. We learn, sometimes, from our mistakes." We often just read the decision and don't

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-71116971604739433392010-05-11T11:50:00.000-05:002010-05-11T11:50:57.354-05:00

The most detailed article on her life and career from WaPo, here.  SCOTUSblog, of course, has much to offer on Kagan, as well.

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-48174133242917178852010-05-10T15:00:00.000-05:002010-05-10T15:00:29.866-05:00

False government testimony always catches our attention, thus we were drawn to today's unpublished Tenth Circuit Order denying relief to Bountaem Chanthadara, who was convicted in federal court, 1996, of crimes related to the death of four people.  (He was sentenced to death, but that was overturned, those interesting facts here).  He filed a habeas last year based on this:  He claimed that his

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-38562195843714129242010-05-05T09:42:00.009-05:002010-05-05T10:26:09.218-05:00

An article in the March-April 2010 Evidence Technology Magazine discusses the FBI "Investigative Kiosks" that are available at most FBI Field Offices and Regional Computer Forensic Laboratory (RCFL) locations across the country.It seems that every day, manufacturers add features to the garden-variety cell phone that make these mobile devices increasingly valuable as items of evidence. Text

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-24656431474548473332010-04-21T16:40:00.000-05:002010-04-21T16:40:22.633-05:00

        This week SCOTUS affirmed free speech in US v. Stevens, and in so doing, rejected the government's "just trust us" argument.   The law at issue punished video portrayals of certain animal cruelty.  The Third Circuit en banc found the law was  facially unconstitutional, as it infringed upon free speech.  Laws precluding actual animal cruelty are fine, but splicing video of those acts is

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-20763116439525197332010-04-12T10:04:00.000-05:002010-04-12T10:04:42.099-05:00

Two notes here: First, we have a new research tool made available to us through the impressive work of Sentencing Resource Counsel. When researching the history of a particular guideline, often the reports and records were unavailable or not easily accessible.  Now, there is a website that has cataloged these materials.  A fuller description and links are available here at White Collar Crime

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-91332906855675591232010-04-01T08:29:00.009-05:002010-04-01T09:12:01.243-05:00

A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush. For more information http://www.nytimes.com/2010/04/01/us/01nsa.html?th&emc=th

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-55941486302571622512010-03-31T12:44:00.000-05:002010-03-31T12:44:33.768-05:00

Lots going on at SCOTUS and the Tenth, but we are ignoring all that in favor of a Ninth Circuit string cite. Yes, a string cite, out of context and irrelevant.  We know your eyes have been trained to ignore such mind-numbing creatures,  but fight the instinct and read this one. The case is not important here*, just Chief Judge Alex Kozinski (always entertaining) and his point that:  [Courts]

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-3232812260175699232010-03-19T11:51:00.010-05:002010-03-24T09:39:24.972-05:00

The US Department of Justice this week released slides from a presentation deck titled Obtaining and Using Evidence from Social Networking Sites. The document was released in response to a Freedom of Information Act request by the Electronic Frontier Foundation (EFF).The DoJ presentation describes Facebook as much more co-operative with law enforcement requests for user information than Twitter

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-91155439597963417572010-03-19T10:32:00.000-05:002010-03-19T10:32:40.522-05:00

The US Supreme Court, against type, has a super cool, slick, easy-to-use new website.  Check it out here, and the buzz  here.

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-541581329236457862010-03-19T09:26:00.000-05:002010-03-19T09:26:34.924-05:00

With all of the injustice, racial and otherwise, that resulted from the 100:1 crack/powder disparity in sentencing, per Congress and the Commission, I reckon we can't complain too much about 80% justice.  Well, we can and probably should, but for today we are inching toward some relief. As you've probably read/heard in the news, SB 1789 passed unanimously and is on its way to the House.  The

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-20120779790459007642010-03-09T08:45:00.000-06:002010-03-09T08:45:17.611-06:00

With a long teaser, Judge McKay leads us down the path toward a reversal of a guideline sentence for substantive unreasonableness . . . . until he doesn't. The  US v. Chavez-Suarez  Court clearly believes that the district court should have granted a variance in this illegal re-entry case, but in the end refuses to find an abuse of discretion.  As disappointing and timorous as the result is,

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-73108428195773927022010-03-08T11:09:00.008-06:002010-03-08T13:13:01.325-06:00

Effective beginning the May 2010 argument term, it is the policy of the US Tenth Circuit Court of Appeals to allow, upon compliance with the procedures outlined in this Order, access to our oral argument recordings. To view full text of the order go to the Tenth Circuit Court of Appeals website: http://www.ck10.uscourts.gov/

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-41557528544621903442010-03-02T10:58:00.000-06:002010-03-02T10:58:02.418-06:00

Sorry for the lag time.  This is just a quick post to notify you of a great defense win at SCOTUS. The case is Johnson v. US.  Scalia writes that a prior conviction for battery by offensive touching is NOT a crime of violence because it does not require the use of violent force. What a concept: a crime of violence requires violence. A synopsis from Sara Silva, Sentencing Resource Counsel:  [T]

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-23199026041900987042010-02-16T09:20:00.000-06:002010-02-16T09:20:04.260-06:00

Do judges foster police perjury?  This is the question posed by KU Law Professor Melanie Wilson in her empirical study set forth in Judging Police Lies: An Empirical Perspective.  This should be of particular interest to Kansas federal defenders because the focus of her study is the practice in District of Kansas. This article cites to other longstanding studies of police perjury,  but is the

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-73467953285107401302010-02-01T12:45:00.004-06:002010-02-01T16:37:20.691-06:00

A recent trend toward sentencing alternatives has been gaining traction in federal courts. Now, in a cautious but hopeful move forward, the Sentencing Commission has proposed amendments (Jan 21, 2010) to the guidelines that would provide for -- wait for it -- treatment and rehabilitation instead of incarceration:Part A expands the authority of the court to impose an alternative to incarceration

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-83361912934421015632010-01-26T09:08:00.000-06:002010-01-26T09:08:32.915-06:00

Awhile back, I blogged here about the cert grant in Briscoe and the expectation that it would undermine the Confrontation Clause progress granted Melendez-Diaz.  Melendez,  in simple terms, required the lab tech to testify on the stand -- subject to cross examination -- to the results in her lab report. Well, two weeks after argument, the Supreme Court GVR'd Briscoe, that is, remanded for the

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-18228113883828812832010-01-25T12:13:00.003-06:002010-01-25T15:24:40.940-06:00

Yesterday, WaPo has a thought-provoking article that begins:Last week I was a juror in the trial of a man accused of selling a $10 bag of heroin to an undercover police officer. At the end of the two days of testimony, I concluded that the defendant was guilty beyond a reasonable doubt. I also concluded that he should be acquitted. In my mind, it came down to a simple, unsettling question: Is it

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-67175783809163990482010-01-20T08:44:00.000-06:002010-01-20T08:44:26.148-06:00

For a long time, we advised clients who were eligible for RDAP (BOP's drug treatment program) that they could win up to one year reduction in their sentence if successfully completed.  It was one of the few breaks available for our folks. This is a reminder that the RDAP rules changed last year for those with shorter sentences. "Effective March 16, 2009, BOP issued Program Statement 5331.02,

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-8396822834507955092010-01-13T15:10:00.000-06:002010-01-13T15:10:55.113-06:00

Do authors of reports, such as drug lab results, have to testify in person, and may the burden rest on the defense to make such a demand for confrontation? Yesterday, SCOTUS heard arguments in Briscoe v. Virginia, a case that followed on the heels of last term's Melendez-Diaz v. Mass. Melendez, in short, held that under Crawford, a witness’s testimony against a defendant is inadmissible

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-70050159546970296512010-01-05T11:11:00.001-06:002010-01-05T11:39:19.544-06:00

Yesterday, the DOJ issued several documents that suggest broader and more timely discovery in criminal cases. With thanks to Prof. Berman, who noted the issue here, we know that three memoranda instruct each district to review and establish policies regarding:        [T]he timing of disclosures; disclosure of reports of interview for testifying or non-testifying witnesses; providing disclosure

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-37277559733899907262009-12-23T08:50:00.000-06:002009-12-23T08:50:38.482-06:00

We recently asked those of you who visited our site for input on how much information about cooperators "snitches" should be accessible to the public through PACER and other court-sponsored sites. The results are as follows: -- All court documents should be public and fully accessible, even when it reveals cooperation; 9 votes -- Documents should be sealed on a case-by-case basis, and only if a

Sandy Schnackhttp://www.blogger.com/profile/09426382239833939743noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-36928912600673299412009-12-14T12:27:00.002-06:002009-12-14T13:49:16.488-06:00

Technological advances revive the snitch debate: How much information about cooperation should be be accessible to the public through PACER and other court-sponsored access sites? Do we seal all plea agreements, transcripts, and otherwise public documents that reveal agreements for snitchery? Do we create additional documents to hide such cooperation? This brings to mind the short-lived

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-41647940382850942672009-12-11T09:19:00.004-06:002009-12-11T11:00:21.752-06:00

Looks like the Chief Judge of our Tenth Circuit has resigned to accept the presidency of Oklahoma City University. Judge Robert Henry's resignation letter was submitted to President Obama yesterday, effective June 30th.Judge Henry always made oral argument more challenging and entertaining, and he will be missed for that.Judge Briscoe is next in line for Chief Judge.

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-21329939576417773752009-12-09T09:03:00.007-06:002009-12-10T11:51:25.586-06:00

By: Troy Stabenow, AFPD, Western District of MissouriI. IntroductionFrom 1994 to 1995, child pornography offenders received a mean sentence of 36 months confinement. See United States Sentencing Commission Report to the Congress, “Sex Offenses Against Children,” 1996, at Page 3, and Table 1. The twenty-four defendants convicted of possessing illegal images received an average sentence of 15

Sandy Schnacknoreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-33432283042704439522009-12-04T14:50:00.002-06:002009-12-04T15:52:06.608-06:00

Back online for a day, and I am already stealing material. From the Third Circuit blog, a sentencing Court cannot use the excuse of rehabilitation to imprison a defendant, or to determine the length of imprisonment:Rehabilitation cannot be used to justify term of imprisonment, even if other factors are cited as wellby Brett Sweitzer The Third Circuit this week, in U.S. v. Hoffa, reiterated that

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-9085698638737696952009-12-04T12:13:00.004-06:002009-12-04T12:30:57.594-06:00

Join the ever growing group on Facebook and become a fan today. http://www.facebook.com/pages/Kansas-Federal-Public-Defender-Blog/192014086654?ref=ts&v=wall#.

Sandy Schnacknoreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-24170053174257696842009-12-03T10:14:00.008-06:002009-12-03T10:54:08.492-06:00

We probably have all represented, by now, veterans of the Iraq or Afghan [Bush] wars. Undoubtedly there will be more to come. Some judges – notably war veterans – have been reluctant to grant any leniency to our clients who suffer from the ravaging effects of recent combat. Now, from SCOTUS, we have some language to help:Our Nation has a long tradition of according leniency to veterans in

Sandy Schnacknoreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-53315111696104449682009-12-03T09:08:00.009-06:002009-12-03T12:04:14.794-06:00

After a hiatus which surely disappointed tens of people, we will resume posting over the next few days. Melody and I will continue to offload as much of the work as possible, relying on Tom Bartee and Sandy Schnack from the Federal Defender's Office to provide assistance and substantive comment. We'll hopefully have a few new features. And more pictures. Because we have to keep you

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-63616575107119253612008-12-01T09:16:00.001-06:002008-12-01T09:17:51.412-06:00

We are suspending our little blawg, at least for the time being.To our three regular readers, have a great holiday season.Kirk and Melody

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-33670894756633636482008-11-20T09:54:00.002-06:002008-11-20T09:59:50.838-06:00

In keeping with my recent trend of stealing from other blogs, here is an excellent but really eggheaded blog from Prof. Friedman at http://confrontationright.blogspot.com/ on chain-of-custody and confrontation. Here's the teaser:Here I will write about the chain of custody, products of a machine, who must testify, and other related topics.Chain of custody is not a technical requirement that

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-38210882664017491962008-11-17T10:22:00.003-06:002008-11-17T10:28:21.583-06:00

From our ever erudite and vigilant Sentencing Resource Counsel's office:The Supreme Court granted cert today in Dean v. United States (08-5274) to decide whether under 18 U.S.C. § 924(c)(1)(A)(iii), the mere discharge of a firearm during a crime of violence or drug trafficking, even if accidental, unintentional or involuntary, is subject to a ten-year sentencing enhancement. The defendant's gun

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-55595018897624124792008-11-10T08:59:00.005-06:002008-11-10T09:02:07.281-06:00

With much gratitude to our smart colleague down south in Wichita, David Freund offers this post:On November 5th, the Tenth Circuit held that 18 USC § 2250(a)(2)(B), of the Sexual Offender Registration and Notification Act ( SORNA) applies only to persons who traveled in interstate commerce after July 27, 2006, the effective date of SORNA.Mr. Husted was required to register as a sex offender in

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-62933861403672158152008-11-03T09:51:00.004-06:002008-11-03T09:57:51.082-06:00

The Washington Post reports that the US Supreme Court is considering review of a critical DNA issue -- whether one has a constitutional right to have DNA tested.Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board. But after recanting that confession, the Alaska man won a federal lawsuit seeking new DNA tests he now says can clear him, a

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-78333697569997718822008-10-20T09:49:00.004-05:002008-10-20T10:00:47.902-05:00

All right, we don't post anything for a week, then twice in one day. But this really caught my attention: the Supreme Court granted cert on the circuit split regarding identity theft. From SCOTUSBlog:The issue is whether the law enhancing the sentence for identity theft requires proof that an individual knew that the identity card or number he had used belonged to another, actual person — that

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-59233175265153916772008-10-20T07:58:00.004-05:002008-10-20T08:07:57.217-05:00

For those of you who attended the Postville immigration conference last month or who are just keeping track of ICE's shenanigans, here is an update on the town of Postville. From CNN, the Postville mayor reports that "Feds Turned My Town 'Topsy Turvey'":"It makes a person feel kind of angry," Penrod says. "It's been nothing but a freaky nightmare since May."Five months later, tensions are high.

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-40738174509067309402008-10-01T10:29:00.004-05:002008-10-01T10:40:05.036-05:00

In today's Order List from the US Supreme Court, one Kansas case made the cut:07-1356 KANSAS V. VENTRIS, DONNIE R.The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. Under reviw is the Kansas Supreme Court in State v. Ventris, which held in favor of Mr Ventris that once a criminal prosecution has commenced, a defendant's

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-51547990255259321422008-09-30T09:28:00.005-05:002008-09-30T09:44:56.153-05:00

Also known as SORNA, the Sex Offender Registration and Notification Act greatly expanded the requirements for sex offender registration, and there has been a great deal of successful litigation around the country challenging some of these prosecutions for failure to register. This is a grossly over-broad and unfair law. It applies to juveniles as well as adults.Another aspect of this

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com2tag:blogger.com,1999:blog-7383503740277706336.post-40964751733996349622008-09-26T14:34:00.003-05:002008-09-26T14:40:35.070-05:00

This is the reason that we can never become complacent about lab reports, never just take them at face value -- because labs get it wrong, make mistakes, and sometimes just outright cheat. Here's yet another example, following OKC and the FBI, of a lab gone bad. Or, perhaps, just revealed for what it really is.Detroit Police Lab Is Closed After Audit Finds Serious Errors in Many Cases Here are

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-87287151219686442282008-09-26T08:50:00.003-05:002008-09-26T09:38:00.788-05:00

Please direct your attention to a new Federal Defender blog, authored by Rebecca Parnell of the Eastern Washington and Idaho district. Rebecca is trying an approach much different than ours- she drafts incisive, regular, and intelligent posts.Give Rebecca's blog a spin. She has recently posted some insights on the amended FRE 502, and has some excellent advice about time credit issues.

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-6798001279247580662008-09-25T08:25:00.004-05:002008-09-25T08:30:56.641-05:00

Just a notice about a really good, day-long CLE program hosted by the WDMO FPD. It is slated for October 17th at the Arrowhead Club in KCMO. This is an annual event, and I usually attend, so I can tell you it is a quality program and very well executed. Topics include CP guidelines, an hour of ethics, DNA, trial troubleshooting (by Tim Crooks, who is always excellent). Amy Baron Evans will

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-36151438507836612892008-09-15T14:46:00.002-05:002008-09-15T14:55:30.720-05:00

Well, not entirely. But now that the structure and empirical validity of a guideline itself is fodder for a sentencing memo, make sure that you have checked the Sentencing Resource Page before you decide on a guideline attack. The National Federal Defender Sentencing Resource Counsel has drafted papers assessing the background and rationale of a number of guidelines, and their work has been

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-15075671988831843272008-09-08T08:43:00.005-05:002008-09-08T08:47:24.362-05:00

Always mighty grateful to guest bloggers, here is Charles Dedmon describing the courts' flip-flopping in US v. Jay Hill:The January 15 decision of the Tenth Circuit in United States v. Jay Hill 512 F.3d. 1277 has been vacated. The decision was reheard by the original panel and the Judgment in Mr. Hill’s favor was reversed. United States v. Hill No. 07-3034 (10th Cir., Aug. 22, 2008).Mr. Hill’s

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-17133215040928505472008-08-28T09:42:00.008-05:002008-08-28T11:34:46.586-05:00

Your client has a prior conviction for felony escape. In reality, he just walked away from work release, or didn't go back to the half-way house. But he is still tagged with an escape conviction.Later on, that conviction can trigger (with two other qualifying convictions) a 15 year-mandatory minimum for possession of a weapon, or otherwise increase penalties, such as under the career offender

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-68210372272555682972008-08-22T08:03:00.003-05:002008-08-22T08:21:05.144-05:00

Something other than prison, or also know as Alternatives to Incarceration. The Sentencing Commission hosted a symposium on this topic last month, finally recognizing publicly that long prison sentences often do more damage than good -- higher recidivism rates, broken families, and ruined lives. Most of us in this business know there is a point of no return, when the shock value of prison has

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-23040575762938320762008-08-19T09:04:00.005-05:002008-08-19T09:46:22.346-05:00

That quote is from Franklin D. Roosevelt, brought to our attention recently as we register participants for an immigration seminar we are putting together with the NACDL, ACLU and two national immigration lawyer groups. Details: September 18th, 8 to 5, Hyatt at Crown Center, KCMO, lunch provided. Register with Cindy_Johnson@fd.org, or call Kirk or me.Swag: FREE CLE, with one hour of ethics, top

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-22513831021530596772008-08-18T07:52:00.004-05:002008-08-18T08:01:06.734-05:00

Grits for Breakfast has this excellent post on the unreliability of arson investigation. The fallacy and inconsistency of this 'science' in increasingly apparent. Too often we assume that expert testimony or forensic science is solid, but it does not take much digging to unearth the 'flawed science' of arson investigation. Grits' post is well-linked and explains the dangers of this forensic

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-25324545550641712632008-08-04T10:54:00.010-05:002008-08-06T08:59:38.417-05:00

Update: "In a case that has drawn international attention, Texas executed José E. Medellín on Tuesday night in defiance of an international court ruling and despite pleas from the Bush administration for a new hearing." From the NY Times article.I am a Texan, know the state well, even worked at the death penalty resource center there representing Texas death row habeas appeals. It is a vicious

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-62306186168426785322008-08-01T09:55:00.006-05:002008-08-01T10:20:17.146-05:00

The ICE raids in Postville, Iowa, have amassed serious criticism from all angles, including Congressional hearings last week and ongoing MSM commentary. Especially sharp has been the outrage over the obvious collusion of the federal district court with the prosecution, as noted in this AILA post: "[T]his travesty could not have occurred without the full complicity of the federal district court

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-18305691687663525692008-07-29T08:03:00.002-05:002008-07-29T08:17:23.806-05:00

Nothin' like having someone else do the work -- here is a blawg review from Simple Justice, with something for everyone. Well worth your perusal, Simple Justice claims the theme of the 14th Amendment:Some, by now, may be asking, "what do all these posts have to do with the 14th Amendment?" Everything, I respond, because everything we do as lawyers and in the law ultimately bears upon due process

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-63167834819699495142008-07-22T11:37:00.000-05:002008-07-22T11:38:12.381-05:00

Ah, the magic DNA box. Sample goes in, profile comes out, and a match of 1 in 62 kajillion condemns the client. The massive number quantifying the odds that the client’s sample would randomly match the genetic profile of an unrelated person comes from a database of genetic information about which we previously knew very little.That may change. The LA Times recently detailed some problems with the

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-35763333545473471172008-07-08T08:39:00.002-05:002008-07-08T08:49:31.572-05:00

Today we have the pleasure of hosting a guest blogger, David Link, who is the preeminent immigration lawyer in Kansas. Our thought is that if we're not going to do our own work anymore, we might as well have the best people out there do it for us. From time to time we risk becoming inured to the ebb and flow of criminal practice. Stories like David relates serve as a reminder to look alive.

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-47245484613146929132008-06-30T10:16:00.000-05:002008-06-30T10:17:19.140-05:00

Confused by cell phone tracking? Flummoxed by file sharing networks? Do you know how to analyze the privacy implications of developing technology when drafting your suppression motion? Yeah- me neither. The folks at the Electronic Freedom Foundation can help.EFF has been duking it out in support of electronic privacy rights for almost twenty years. Their site spotlights and analyzes court cases

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-75930743713613236572008-06-26T10:59:00.004-05:002008-06-26T11:06:37.593-05:00

We love guest bloggers, not just because we are sometimes (often) lazy, but because they offer you some variety. Today we have our very bright colleague from Wichita, David Freund, who offers this post:In a refreshing change from the usual affirmance of above guidelines sentences based on the deferential abuse of discretion standard of review after Gall & Kimbrough, in United States v. Huckins,

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-57036267050971539102008-06-25T09:36:00.003-05:002008-06-25T09:45:44.115-05:00

The Tenth held, in US v. Tiger, that DUI convictions are not 'crimes of violence' for career offender purposes, overruling precedent based on the SCt's recent ruling in Begay. "[T]he definition of 'crime of violence' contained in USSG §4B1.2(a) is virtually identical to that contained in the ACCA. Because the Court’s reasoning in Begay applies equally to the sentencing guidelines, we hereby

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-35162906568552106712008-06-24T09:37:00.003-05:002008-06-24T09:52:09.393-05:00

If you are defending against a computer child porn case, this Slate article is required reading:Why Would a Virus Look at Kiddie Porn? The answer is,So other people could secretly view the porn. Fiola's computer had been taken over remotely by "botnet" operators, who lowered its security protections and may have sold child-porn enthusiasts access to the machine. This enabled people to view

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-80538968081502578952008-06-18T07:51:00.010-05:002008-06-18T08:30:41.912-05:00

David Wittig's sentencing appeal from his first trial was finally affirmed. The 10th vacated his two prior sentences (51 months and 60 months), but we see the down side of Gall as this panel affirms this 24 month sentence. The correct guideline range was 0-6 months. The panel had to do some real semantical dancing to seal this deal. Here's one example:Having concluded the guidelines did not

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-77416076035277932702008-06-16T12:21:00.003-05:002008-06-16T12:32:06.521-05:00

When news breaks of a new US Supreme Court decision, I'm sure many of you go straight to the opinion, hot off the press, read it, thoughtfully digest it, then move on to secondary sources to determine the import.Me, I usually skip the USSCT version and go straight to NYTimes reporter Linda Greenhouse. She always cuts to the heart of the case, in her smart, spot on, and efficient way. Later, I (

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-83492183963935436452008-06-12T10:32:00.007-05:002008-06-12T11:10:50.414-05:00

Bad news: our clients are not entitled to notice that the sentencing court intends to exceed the guideline range. US v. Irizarry was issued by the USSCT today, and held that, "Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v. Booker, 543 U. S. 220, which invalidated

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-9764088043176488082008-06-09T07:47:00.003-05:002008-06-09T08:03:45.888-05:00

After you are done with the summer blockbusters, the murder mysteries, the spy novels (my favorite) and, yes, for some of you, Danielle Steele, you need something to make you feel smart again. I have the perfect book: Making Your Case: The Art of Persuading Judges. All right, don't stop reading now. This book is the collaborative effort of Bryan A Garner, who offers wonderful and effective

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-24505413391447614332008-06-02T14:57:00.005-05:002008-06-02T15:19:20.212-05:00

One of the most innovative and erudite federal judges on the bench, D. Mass. Judge Nancy Gertner, is moonlighting as a blogger for Slate. Judge Gertner was the defense hero of downward departures during that long, dark night of mandatory guidelines. Here is an excerpt from a great Boston Globe article."I am an unlikely blogger," wrote US District Court Judge Nancy Gertner of Boston in March in

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-87525100897681308252008-05-29T09:14:00.003-05:002008-05-29T09:32:50.815-05:00

If you are enough of a geek to be interested in the various splits and leanings of the United States Supreme Court justices, here is a very good and nuanced New York Times article by Linda Greenhouse entitled "At Supreme Court, 5-to-4 Rulings Fade, but Why?" She discusses the role that Kennedy played in the last term, and how that has changed. Here are a couple of excerpts:Still, there is a

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-52755207338813787852008-05-21T10:24:00.003-05:002008-05-21T10:34:12.029-05:00

Please welcome a new guest blogger- Paige Nichols. Paige's submission today concerns United States v. Hasan, an interesting case concerning interpreters, conflicting trial court rulings, and plain error. Though the trenchant analysis and careful exposition of case facts clearly distinguish the rest of this post from the usual cobbled-together tripe around here, to be clear, the following was

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-91349019582981004112008-05-21T10:19:00.000-05:002008-05-21T10:20:35.653-05:00

A pair of Tenth Circuit opinions today serve to remind that there is much hay to be made about the categorization of prior crimes. In United States v. Hayes, the defendant was indicted as a possessor of a firearm after a domestic violence conviction. Mr. Hayes had been convicted of simple battery under Wyoming law, which prohibits "touching another in a rude, angry or insolent manner." This is a

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com1tag:blogger.com,1999:blog-7383503740277706336.post-64368728135095632142008-05-13T21:19:00.004-05:002008-05-13T21:46:06.432-05:00

Recently, Kirk posted on eyewitness ID here. On that same subject, Carl Folsom over at the excellent KansasDefenders.blogspot.com , has a post on a new ABA Model cautionary jury instruction on cross-racial eye-witness identification, here. Well worth reading, and it comes with some interesting resource cites.

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-11985429106819693252008-05-13T07:53:00.003-05:002008-05-13T08:06:27.790-05:00

Nice reversal of a traffic stop by the 10th in US v. Valdez-Valdez. The trooper stopped Valdez-Valdez for impeding the flow of traffic -- he was driving 45 in a 55 mph zone. That didn't cut it for Judge Hartz. This is a fact-intense opinion, lots of transcript quotes. Here are a few of the highlights: --- The Court provides helpful distinction between a cop's mistake of fact and mistake of

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-80623192219003217082008-05-12T07:52:00.003-05:002008-05-12T08:01:38.285-05:00

Tried to think of a clever title for this blog, but few things get our attention like "dismissal" and "discovery violation." This is from Sady's 9th Circuit blog, "Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left).

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-19604606849178672622008-05-07T11:00:00.008-05:002008-05-07T11:21:21.851-05:00

Discretion exercised the right way means, of course, a below-guideline sentence that stands up on appeal. The government cried foul when the district court imposed a year-and-a-day sentence rather than the 4-plus years called for by the guideline for transporting heroin, in US v. Munoz-Nava (apologies, I don't know how to type a tilde). Here are some of the factors credited by the sentencing

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-84515459356317556032008-05-06T09:56:00.005-05:002008-05-06T10:18:42.110-05:00

The Tenth Circuit didn't give any relief to Mr Thompson here, but some interesting identification thoughts can be generated out of this published opinion. Mr Thompson was charged with bank robbery and weapons violations. At the prosecution's request, the district court made Mr Thompson put on sunglasses so that the jury could compare that real life, in-court image of him with the bank videotape

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-32172717446678427222008-04-28T07:21:00.003-05:002008-04-28T07:40:00.221-05:00

Over the last few months, we've been busy with retroactive crack cases. We set up sort of a working committee, with the blessing of Chief Judge Vratil, that included the US Attorney's Office, US Probation, and our office to try to work through these cases and get relief where relief is due.The US Sentencing Commission has come out with a preliminary report about the status of retroactive crack

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-42272520452265367652008-04-22T07:30:00.003-05:002008-04-22T07:38:14.199-05:00

Nice reversal by the 10th in US v. Santillanes. Here's the case in a nutshell:At sentencing, Santillanes requested a downward variance, arguing the disparity between mixed and actual methamphetamine in the Guidelines produced a sentence that was greater than necessary under the factors delineated in 18 U.S.C. § 3553(a). The district court, concluding it did not have the power to accept

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-45002413026537221632008-04-18T10:47:00.008-05:002008-04-18T13:03:23.455-05:00

This week, on the same day that the US Supreme Court handed down the much-publicized Baze decision that lethal injection is just fine in this country, two other decisions were also published. These are less dramatic, and -- thankfully -- much shorter and simpler. Both, though, are important to our everyday practice as federal criminal defense lawyers. One is good and one is not, but we need to

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-47682222727062446602008-04-14T12:53:00.002-05:002008-04-14T13:13:03.358-05:00

Just in case you haven't heard, the annual Panel Counsel Training Seminar will be offered April 24th (Lawrence) and April 25th (Wichita). Call Cindy Johnson in our office for info and to register (785.232.9828, 800.359.9492, cindy_johnson@fd.org). Topics will include the ever-evolving practice of federal sentencing, criminal history, fascinating BOP issues, and the keys to electronic filing.

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-36503967259897419622008-04-11T13:40:00.002-05:002008-04-11T13:40:40.504-05:00

We have seen a few PSRs enhancing gun defendants because the weapon did not have a serial number. This is not a valid enhancement, for two reasons. First, the enhancement applies to an "obliterated" serial number, not an absent one. Second, many older firearms never had a serial number in the first place. Prior to the Gun Control Act of 1968, manufacturers were not required to serial number their

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-31058658077699831582008-04-10T13:33:00.005-05:002008-04-10T14:06:20.800-05:00

This is not so much a law topic as strategy session. With the advent of Gall and Kimbrough, this is the question: when should we use written plea agreements? Given all the concessions that the prosecution demands on guideline sentences and appeal waivers, the benefit to our clients is often negligible. Certainly, if there is charge bargaining to be had, such as phone counts or an ITAR, or if an

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-69766991013196508992008-03-31T13:26:00.002-05:002008-03-31T13:37:24.335-05:00

There is a new website available for eyewitness identification cases- http://www.eyeid.org/. This site has a number of links to bibliographies, a blog, and other resources for defense counsel faced with a case in which eyewitness identification is a substantial issue. Registration is required, but free.

Kirk Redmondhttp://www.blogger.com/profile/05085174331221235600noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-46244836362024480222008-03-26T08:37:00.013-05:002008-03-31T12:56:13.703-05:00

The answer seems obvious to most defense attorneys, yet prosecutors routinely try to bypass witness testimony by just offering the report. Now the US Supreme Court has granted cert. in Melendez-Diaz v. Mass. to determine whether the certificates of forensic lab reports are testimonial under Crawford. Here is the cert petition.ScotusBlog's excellent review Crime labs and the Confrontation Clause

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-58433392863164853232008-03-21T02:04:00.003-05:002008-03-21T02:13:10.112-05:00

On Monday, the Tenth Circuit reversed the conviction of a Qwest exec convicted of insider trading because the trial court excluded defense expert testimony, in a rather abrupt and ungracious manner. Prof Ellen Podger at White Collar Crime Prof Blog has this excellent summary here, and includes these two notes:The court notes the difference between civil and criminal cases - "Unlike under the

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-15052407838618106522008-03-15T14:36:00.009-05:002008-03-15T15:16:23.116-05:00

Which state felonies constitute crimes of violence is a complicated area, and we should never make assumptions based on the label of conviction. That point was proved again this week by the Tenth Circuit in an immigration case, US v. Rodriguez-Enriquez. There, the defendant challenged a Colorado assault conviction, arguing it was not a crime of violence.All right, now some of us would see 'felony

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-65581185570358986872008-03-10T07:57:00.005-05:002008-03-10T08:17:25.816-05:00

Today, the New York Times has an excellent article about the repeated failures of federal death penalty prosecutions in New York. A couple of selections:[F]ederal prosecutors in New York State have asked juries to impose death sentences 19 times since 1988. In only one case did a jury rule for execution.Nationwide, federal prosecutors win death penalties about one-third of the time, according to

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-3772268184772939962008-03-05T14:54:00.004-06:002008-03-05T15:12:00.186-06:00

Again borrowing from the erudite Prof Berman and his blog, here's the big news on the 10th Circuit front today:In a lengthy decision, a split Tenth Circuit panel upheld the reasonableness of a below-guideline sentence in a sex offense case in US v. Smart, No. No. 06-6120 (10th Cir. Mar. 4, 2008)available here). Here is how the majority opinion starts:Christopher Wayne Smart was convicted of

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0tag:blogger.com,1999:blog-7383503740277706336.post-41711147467376641242008-02-15T09:26:00.004-06:002008-02-15T09:32:04.847-06:00

Well, we've been buried in retro-crack cases around here, it dominates our work right now.That's why we haven't been blogging much, our apologies. Meanwhile, I thought I'd link you to the best federal defender blog ever, Steve Sady's Ninth Circuit, so you can see how it ought to be done. This entry, here, is his analysis of a catagorical/modified catagorical approach to prior convictions. It

Melody Evanshttp://www.blogger.com/profile/14197243769180729229noreply@blogger.com0