Eastern District of California Blog

Is Taft CI Unconstitutional?

The title of this post is inspired by Professor Michael Tigar's post on his blog TigarBytes entitled "Private Prisons are Unconstitutional," which was highlighted in Professor's Berman's sentencing blog.  Based on Tumey v. Ohio, 273 U.S. 510 (1927), Ward v. Monroeville, 409 U.S. 57 (1972), and other cases, Prof. Tigar contends that contracts requiring the feds to send enough people to prison to fill up 80-100% of beds in private prisons are troubling and raise serious due process concerns.  He ends his post with the "hope that someone will start to litigate these issues."

I echo that thought.  One such issue I've raised is whether due process prohibits private prison employees from taking away good time credit (GTC) for disciplinary violations where the corporation that runs the prison has a financial incentive to keep its prison cells full.  While inmates may challenge the disallowance of federal GTC through a § 2241 petition in federal court, it is exceedingly difficult.  They are not entitled to a court-appointed attorney and rarely have the funds to hire an attorney.  And courts often require that they first go through the Bureau of Prison's legal obstacle course to exhaust their administrative remedies, all with limited legal access and without the help of counsel. 

I raised this issue, however, in a successful appeal last year after the Ninth Circuit, on its own, appointed counsel.  In Arrendondo-Virula v. Adler, No. 10-17654 (9th Cir. Feb. 14, 2013), the Ninth Circuit gave my client back 27 days of GTC that was taken away as discipline imposed by an employee of Mangement and Training Corporation (MTC), which operates the private federal prison in Taft, California.  The Court did not reach the due process issue though.  Rather, the Court agreed that the then-applicable BOP regulation provided that "only institution staff" could take disciplinary action under 28 C.F.R. §541.10(b)(1) and that the taking away of GTC was unlawful because the MTC employee did not qualify as BOP "institution staff." 

The BOP regulation, however, is no longer in effect and the due process question is ripe for litigation.  To jump start anyone out there who may be interested in litigating this constitutional challenge, here's the excerpt from my opening brief that raises the unresolved due process issue.  [Update:  Here's Prof. Tigar's response to this post].

Is There A Substantive Due Process Right To Medical Marijuana?

[Update: On 2/21/14, the Ninth Circuit summarily denied appellants' petition for rehearing en banc in this order.]

Appellants filed this Petition for Rehearing En Banc yesterday in response to the Ninth Circuit's 1/15/14 decision affirming the dismissal of actions for injunctive relief brought by various medical marijuana collectives, including Sacramento-based El Camino Wellness.  The petition argues that seriously ill Californians have a fundamental right to possess, distribute, and use marijuana as medicine based on Lawrence v. Texas, 539 U.S. 558 (2003), and Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007) (Raich II), in light of the the deeply rooted history of the use of marijuana as medicine, the super-majority public support for the medical use of marijuana, and the fact that 23 states (with 11 more likely soon) have legalized the medical use of marijuana under state law.

This petition may have some legs.  In Raich II, the Ninth Circuit denied the claim that the Due Process Clause encompasses a right to use marijuana for medical purposes, but the Court noted that the passage of time coupled with changing social views may alter the fundamental right analysis.  500 F.3d at 865-66.  The Ninth Circuit's panel decision here rejected appellants' argument that Raich II should be overruled on the procedural ground that "a prior holding of this court may only be overturned through en banc consideration."   Given the strong recent public support for medical marijuana and the increasing number of state laws favoring medical marijuana since Raich II was decided seven years ago, I expect the petition for rehearing en banc to garner some attention in the Ninth Circuit.

Got Federal Sentencing Guideline Issues?

Don't go to the U.S. Sentencing Commission's website for help, at least until it's up and running again after Anonymous hacked it-twice.  While it was still operating, the Commission's series of guideline primers, such as this Drug Primer, was a useful starting point for learning the basics of sentencing guideline issues.

More helpful for defense attorneys is the Sentencing Resources page at fd.org, including its excellent deconstructing the guidelines series. 

Also don't miss E.D.N.Y. District Judge John Gleeson's "Memorandum Explaining a Policy Disagreement with the Drug Trafficking Guideline" in U.S. v. Diaz and N.D. Iowa District Judge Mark W. Bennett's opinion deconstructing the career offender guideline in U.S. v. Newhouse.  Prof. Berman's Sentencing Law & Policy Blog has summaries,  Diaz here and Newhouse here, calling the opinions "instant classics."

Cutting Edge Evidence Issues for 2012

Federal courts are closed today for the Martin Luther King Holiday.  

In my latest installment of cutting-edge issues for criminal defense attorneys (and others) to keep an eye on in litigating cases, here is the Federal Evidence Blog's 10 Key Evidence Issues for 2012, or use the links below to read more about an individual issue: 

1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause - Pending Decisions
2. Confrontation Clause: More Notice and Demand Rules?
3. Supreme Court Watch Open Issue: Confrontation Clause - Resolving An Open Issue on the Scope Of Dying Declarations
4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
5. Circuit Split: Admission Of Pre-Miranda Silence
6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
7. More Judicial Criticism of the “Inextricable Intertwinement" Theory
8. Rule Amendments: “Restyling” Federal Rules of Evidence
9. Pending Rule Amendment: FRE 803(10) - Absence of Public Record
10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

Copyright Infringement: Sentences And Search Warrants

Federal criminal copyright cases seem to be on the rise in the EDCA and nationwide.  In the EDCA, Judge Karlton sentenced a Sacramento man to 18 months imprisonment for selling copyrighted DVDs at his area Music Land stores.  Sacramento Business Journal, 8/10/11.  Elsewhere, I was intrigued by this post at Fourth Amendment.com, which describes the W.D. Wash. court's rare published denial of the government's application for a search warrant seeking evidence of copyright infringement for all of the target's computers and electronic devices without a filter team and by refusing to foreswear use of the "plain view" doctrine.   See In re United States’s Application for a Search Warrant to Seize and Search Electronic Devices from Cunnius, 2011 U.S. Dist. LEXIS 87654 (W.D. Wash. February 11, 2011): 

This matter comes before the Court on the government’s application for a warrant to search the residence of Edward Cunnius, to seize any computers or digital devices (collectively “digital devices”) that may be located at the premises, and to search all electronically stored information (“ESI”) contained in any digital devices seized from Mr. Cunnius’ residence for evidence relating to the crimes of copyright infringement or trafficking in counterfeit goods. Specifically, in addition to the search of the residence and the seizure of digital devices, the application requests the authority for investigative officers to: (1) search all ESI contained in Mr. Cunnius’ digital devices and related to the use of the devices; (2) conduct the search without segregation by a filter team; (3) conduct the search without foreswearing the plain view doctrine; and (4) permit investigative agents to obtain a second warrant if, during the search of the ESI, the investigating and searching agents find evidence of crime outside the scope of the instant warrant. On February 7, 2011, the Court advised the Assistant United States Attorney (“AUSA”) that the warrant, as presented, would not be granted. The United States has refused to accede to the Court’s view that a filter team and forswearing reliance on the plain view doctrine are appropriate, and indeed, required in this specific case. Accordingly, the AUSA requested the Court to file a memorandum opinion, so that the government can appeal. A copy of the requested warrant and affidavit in support is attached as Exhibit 1. That request has led to this opinion.

Because the government, in this application, refuses to conduct its search of the digital devices utilizing a filter team and foreswearing reliance on the plain view doctrine, the Court DENIES the application as seeking an overbroad or general warrant in violation of the Fourth Amendment and the law of this Circuit.

Widening Circuit Split On Government's Refusal To Move For 3rd-Level Acceptance Of Responsibility Reduction

As Steve Sady explains in his post on the Ninth Circuit Blog, 7/27/11, the Second and Fourth Circuits have now rejected the view that the government can deny defendants a third level off their guidelines solely because they didn't accept a plea agreement with a waiver of appeal and instead pled guilty "straight up" to all charges.  This has created a split with other circuits, including the Ninth Circuit's 2-1 opinion in U.S. v. Johnson, making the issue likely to attract attention in the Supreme Court. 

As Sady recommends, defense attorneys should be arguing in the district courts that Johnson is limited to its facts and that the government may refuse to move for the third level reduction only on the basis that defendant's late plea caused it to prepare for trial.  Alternatively, in the right circumtances, we should be asking that the court sentence consistent with the 3-level reduction as part of the court's discretion to impose an appropriate sentence under 18 U.S.C. §3553(a).

Defendants who have been denied a third level acceptance reduction on any ground other than that the government had to prepare for trial should consider an appeal in which they could request en banc review by the full Ninth Circuit or the Supreme Court.  As a matter of policy (and common sense), a defendant who pleads guilty promptly and accepts responsibility for his or her conduct should not be forced into an unfavorable plea agreement just to obtain the full 3-level guideline reduction.  With the Second and Fourth Circuit recent decisions on our side, the Ninth's Johnson decision may turn around. 

More On Electronic Surveillance/Communication And The Fourth Amendment

Following up on my Electronic Surveillance and the Fourth Amendment post last month, check out Steve Treglia's article The Fourth Amendment In The World of E-Communications, Prof. Laurie Levinson's piece Do GPS Tracking Devices Violate the Fourth Amendment?, Steve Titch's Data In The Cloud Needs Fourth Amendment Protection, and CNN's Warrantless Cell Phone Searches Spread To More States.  I found all on fourthamendment.com, which I highly recommend.  See also Orin Kerr, Email accounts, the warrant requirement, and the territorial limits of court orders and Delaware courts: Police use of tracking devices at issue.

Fourthamendment.com also pointed me to this Mink v. Knox opinion where the Colorado federal district court found a prosecutor civilly liable for authorizing a search warrant to look for evidence of "criminal libel" from a blogger who had criticized a university professor online.  See Reporter's Committee for Freedom of the Press.  This case is notable on many levels.  The plaintiff first won a rare TRO enjoining the threatened prosecution in state court.  Thereafter, the Tenth Circuit reversed the district court's ruling that the prosecutor was entitled to absolute immunity and, in a second appeal, reversed a grant of qualified immunity.  Congratulations to my former co-clerk and now ACLU of Colorado legal director Mark Silverstein, one of plaintiff's counsel.  Briefs and decisions available at ACLU-Colo.

Cutting Edge Defense Issues, Vol. 1: Electronic Surveillance And The Fourth Amendment

"The Man Who Trades Freedom For Security Does Not Deserve Nor Will He Receive Either."  --Benjamin Franklin

While I'm in Boston to watch the Cubs play the Red Sox in Fenway for the first time since the 1918 World Series, Boston.com, 5/15/11, this seems as good as time as any to debut my series on cutting edge criminal defense issues.  (No, I'm not writing this in Boston.  I finished it before I left Sac.)  This series is to help criminal defense attorneys spot unsettled legal issues and potential defenses perculating through the courts, which can be raised now in anticipation of changes in the law later.

There may be no bigger area of unsettled legal questions in criminal law right now than the application of the Fourth Amendment to various forms of electronic surveillance and communication, such as cell phones, emails, instant messaging, and GPS tracking.  Smart phones now routinely include GPS tracking that may be recording a trail of every where you've been.  "It's Tracking Your Every Move And You May Not Even Know," NY Times, 3/26/11.  And, if it's there, expect government agents will be trying to find ways to use it.  See, e.g., "ACLU: U.S. Attorney Used GPS To Track Cell Phones." 

Appellate courts are starting to recognize that individuals may have a "reasonable expectation of privacy" from government intrusion into these new forms of surveillance and electronic communication, thereby triggering Fourth Amendment protections.  Last year, the Sixth Circuit held that the Fourth Amendment requires the government to obtain a search warrant to obtain emails (though the court declined to apply the exclusionary rule).  U.S. v. Warshak, No. 10-0377; see also EFF Amicus Brief.  And the D.C. Circuit held that officers' long-term GPS surveillance of a vehicle requires a warrant, U.S. v. Maynard, No. 08-3030 , causing a split with, among others, the Ninth Circuit.  U.S. v. Pineda-Moreno, No. 08-30385 and Pineda-Moreno Order Denying Rehearing En Banc With Judge Kozinski's Spirited Dissent.

Last month, the United States asked the Supreme Court to review the D.C. Circuit's GPS decision, see U.S. v. Jones Cert. Petition (formerly U.S. v. Maynard), and Legal Times Blog Summary, 4/15/11, and it appears that the high court is holding the defendant's cert petition in the Ninth Circuit's Pineda-Moreno GPS case pending disposition of the government's petition in Jones.  Scotus Blog, 5/17/11; U.S. Response To Pineda-Moreno Cert Petition.  I'm not smart enough to predict when and how the Supreme Court will decide these and similar questions.  But if these issues are not raised in the district courts now, they may be lost forever.  

To jump start your research, here are couple of excellent outlines by UNC School of Government professor Jeff Welty.  Warrantless Searches Of Computers and Other Electronic Devices, April 2011 and Warrant Searches of Computers, May 2011.