BOP's Residential Drug Abuse Treatment Program (RDAP)

With many thanks to Howard O. Kieffer of BOPWatch, we refer counsel to a list of the BOP's facilities offering Residential Drug Abuse Treatment Program (RDAP), with the caveat that the list is not up to date, as the Allenwood and Devens facilities no longer have the program. In addition, one Low facility has been added (to the RDAP list): FCI Elkton. The FCI Terminal Island is being "remissioned" as a Low (it was formerly a Medium facility). Also, be aware that Lompoc's program is conducted in Spanish only.

The link also provides you with answers to frequently asked questions regarding BOP's Drug Treatment Programs.

We once more encourage all counsel to sign up for the BOPWatch group.

Acquittal by judge draws criticism

U.S. District Judge Joseph Tauro (D.Mass.) is being attacked for granting a defense motion pursuant to Fed.R.Crim.P. 29 at the close of the government's case in chief in a money laundering case against a lawyer.

The Boston Globe article cites prosecutors' and former prosecutors' complaints about D.Mass. Judges granting Rule 29 motions too frequently. But the article does not discuss the facts of the case, or whether there was sufficient evidence on all elements of the charged offense to let the case go to the jury. Nor is there any input from defense attorneys, which may have offered a more balanced view to prosecutors' knee-jerk reaction.

Thus, it is impossible for us to comment on whether the judge acted correctly in the specific case. However, anyone practicing criminal law before the federal courts knows that there are very, very few cases that actually go to trial. This is so because in most cases the evidence is overwhelming, and defendants seek to cut their losses. Of the few cases that do go to trial, the government wins a huge portion of these as well. However, it should not be surprising to anyone that a few defendants do go to trial because they understand -after consulting with their attorneys- that the government does not have sufficient evidence on all elements of the offense. Even then, almost all cases tried do manage to get past defendants' motions for acquittal and to jury verdict, and this happens even when a properly grounded Rule 29 motion should have been granted by the Court. Each and every reversal on insufficiency of evidence grounds is precisely an appellate court telling the prosecutors that the evidence was lacking, insufficient, on at least one element of the offense charged, and telling the court that it should have granted the Rule 29 motion made by the defense. Would the Boston Globe care to publish how many federal cases get reversed annually on such grounds?

We also take issue (and this is rare) with Professor Douglas Berman's guarded speculation at Sentencing Law & Policy that Judge Tauro "might have been more inclined to acquit because he thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted." While Professor Berman calls this speculation on his part, we think it would have been better left unsaid. It just feeds -without any basis in fact- into prosecutorial claims of judicial abuse. Haven't we had enough Feeney Amendments?

Update: Professor Berman has referenced our post as an update to his post linked to above, but argues that our comment to the effect that his comments as to speculating as to whether the harsh penalties the defendant would have faced may have caused Judge Tauro to grant the motion for acquittal "would have been better left unsaid" is contrary to "[his] strong commitment to transparency (discussed here) [which] entails that few if any points will be 'left unsaid' on this blog." I have no problem with transparency, and am wholeheartedly in favor of it. However, I still feel that, without even knowing what the penalties were or the evidence in the case was, the speculation as to what may have prompted the Judge's actions are not proper. So, we respectfully dissent from Professor Berman's views on this one without more facts. Yes, the facts do matter.

Elwood v. Jeter, No. 04-2253 (8th Cir. October 18, 2004)

In Elwood v. Jeter, No. 04-2253 (8th Cir. Oct. 18, 2004) (Bureau of Prison's policy of limiting prisoner placement in Community Corrections Centers to the lesser of six months or ten percent of the prisoner's sentence is based on an erroneous interpretation of 18 U.S.C. Sections 3621(b) and 3624(c) and is invalid) we have an 8th Circuit follow-up on Goldings v. Winn, No. 03-2633 (1st Cir. Sept. 9, 2004), which we first posted on here, then here, and most recently here. Elwood cites both to Goldings and a number of district courts that have also ruled likewise. These are all cases you should know to assist your clients.

Booker & Fanfan Oral Argument Transcript

You may now access the Booker & Fanfan oral argument transcript before the supreme Court.

Keeping the lid on Pandora's Jar - by the Bard of the Short Circuit

Circuit Judge Selya's opinion for the First Circuit panel in United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004) turns down -rightfully so- a Government interlocutory appeal from a district court's order refusing to grant the Government a trial continuance in a three year old case. Finding that the Appellate Court lacked jurisdiction, Judge Selya refuses to construe 18 U.S.C. § 3731 in a manner "that otherwise would open Pandora's jar, [n.2] ..." Id. at 9.

[n. 2] Although the more common allusion is to "Pandora's box," that usage is apparently erroneous. Zeus, determined to avenge himself on Prometheus, presented this femme fatale to Epimetheus (Prometheus' brother), first arming her with a jar containing all the evils of the world. After Epimetheus foolishly accepted the gift, Pandora proceeded to open the jar, thereby loosing a panoply of torments upon humanity. See R. Warner, Encyclopedia of World Mythology 29-31 (1975). As with so many things in life, however, there is another view. See Edith Hamilton, Mythology 86 (1942).

United States v. Watson and O'Hearn, No. 04-1913 (1st Cir. October 12, 2004), at n. 2 (p. 9). The government through it's own "Executive Branch faux pas de deux" caused the conundrum, by allowing, in fact causing, a necessary witness (Spera) to be deported to Italy. The prosecutor did not realize this until shortly before the scheduled trial (3 years in the making), and requested a continuance to depose the witness in Itlay. The district Court did not oblige, denying the requested continuance.

As said, the denial of the continuance left insufficient time to depose Spera abroad, and so the district court sensibly denied as moot the government's ancillary request for leave to take such a deposition. In its reply brief, the government recasts its argument to focus on this point. It seems to suggest that the district court artfully avoided ruling on its request to depose Spera by couching its decision in terms of the denial of a continuance. Government's Reply Br. at 4. This is empty rhetoric: it was the government that framed the central issue around its perceived need to postpone the trial. Thus, the suggestion that the court, by some thaumaturgical [means magical] feat of legal legerdemain [means sleight of hand, tricks of a stage magician, trickery of any sort, deceit], used the denial of a continuance as a masking device to insulate its exclusion of Spera's testimony from appellate review, is totally unfounded.

Id. at 20-21. This is a good case for the defense to have at hand. And for your vocabulary as well.

7th Circuit is Afraid of the Briar Patch?

In United States v. LaGiglio, No. 04-2934 (7th Cir. Oct. 8, 2004), an appeal by the government, and an opinion by Judge Posner (who wrote the Booker majority opinion),

[a] jury convicted Bonnie LaGiglio of conspiracy to impede collection of taxes by the Internal Revenue Service, 18 U.S.C. § 371, an offense for which the federal sentencing guidelines prescribe a base offense level of 10; but, consistent with the guidelines, the judge increased LaGiglio’s offense level by a total of 11 because of the amount of the government’s tax loss and LaGiglio’s use of sophisticated means to commit the crime, and sentenced her to 41 months in prison.

The level 10 translated into a sentence of 12 months, and defendant had already served that much. She had requested that she be released pending her appeal, and the district court had denied her request. She then requested that the 7th Circuit order her released. The Circuit remanded the case to the district court in light of Blakely and Booker, and the district court ordered her released. It is from that decision that the government then appealed. Because the district court

did not indicate whether he thought LaGiglio was entitled to a sentence short enough not to exceed the time she has already served, and rather than speculate we shall again direct him to revisit her motion, this time in light of Booker. For his guidance in considering the motion, we note that there are only three circumstances in which, consistent with the Bail Reform Act, Booker would entitle a district court to release a defendant pending appeal: (1) the district court plans not to rely on the sentencing guidelines at all, but instead to use its discretion to sentence the defendant to a term of imprisonment shorter than the time the defendant is expected to serve pending appeal (of course if there is a statutory minimum sentence the judge cannot go below that); (2) the court plans to empanel a sentencing jury to consider the government’s evidence in support of increasing the base offense level and believes that the jury will make findings that will preclude a sentence longer than the expected duration of the appeal; or (3) the court intends that there shall be no adjustments to the base offense level and a sentence consistent with that level will expire before the appeal is likely to be resolved.

Should the judge be minded to release LaGiglio, he will have to consider the government’s argument that she has waived or forfeited reliance on Booker. If he is not minded to order her release, he will not have to enter that briar patch.

(emphasis added). I have never understood why the 7th Circuit had to leave the decision whether the proper route was to convene sentencing juries, or whether to use the guidelines at all to the district courts, and this obviously inlcudes the issue of severability which they passed over in Booker. The answers could and should have come from the 7th Circuit in Booker and they did not, instead passing it up to the Supreme Court and/or the lower courts. Is the 7th Circuit afraid of the briar patch?

U.S. v. Perez, Crim. No. 04-86-P-H (D.Me. October 5, 2004) - Judge D. Brock Hornby

In a recently issued Procedural Order in U.S. v. Ramon Perez, Crim. No. 04-86-P-H,(D.Me. October 5, 2004), U.S. District Judge D. Brock Hornby, refused to accept a defendant's guilty plea when defendant, through counsel, informed that he wanted to plead guilty to the conspiracy charge, "but wanted a jury trial as to the drug quantities and on the scope of the conspiracy. [n.2]" We quote practically the totality of the opinion, since we find it deals with day-to-day problems confronting each one of us practicing before the U.S. District Courts.

The Superseding Indictment charges this defendant with being a member of a conspiracy [n.1] involving at least five kilograms of cocaine. That quantity activates the section of the narcotics statute with the highest statutory drug sentencing category, 21 U.S.C. § 841(b)(1)(A). In a “Sentencing Allegation,” the Superseding Indictment also charges that this defendant is “accountable for at least 15 kilograms of cocaine.” That quantity increases the United States Sentencing Guideline (“Guideline”) sentencing range and is also designed to comply with the First Circuit’s requirement in United States v. Colon-Solis that in a drug conspiracy case, “any sentence imposed must be accompanied by particularized findings as to the drug amounts attributable to, or foreseeable by, the appellant.” 354 F.3d 101, 104 (1st Cir. 2004).

Judge Hornby goes on to discuss the pre-Apprendi situation, and compares it with the post-Apprendi world, and then the still uncertain post-Blakely world.

Before Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing judge determined the applicable drug quantities (and thereby the statutory maximum and minimum penalty and the guideline range) whether a conviction was by a jury or by a guilty plea. In other words, before Apprendi I could probably have accepted a partial plea somewhat along the lines the defendant proposes, but I as the judge would have made the determinations about drug quantity and its impact on the sentence.

After Apprendi, in cases that went to trial, the judge submitted the question of conspiracy drug quantity to the jury (to determine beyond a reasonable doubt). The jury’s answer determined the applicable statutory maximum. United States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003). But the judge still determined (on his/her own and by a preponderance of the evidence) the drug quantity pertinent to the individual defendant and thus the applicability of any mandatory minimum sentence and the governing guideline range (within the statutory maximum). See id. For defendants who pleaded guilty, the sentencing judge alone determined all those issues, except the statutory cap, which was controlled by what the Indictment or Information charged. See United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002). Although Apprendi resulted in verdict questions to juries about drug quantity, such questions generally were asked only if the jury had found guilt on the underlying offense. I have been unable to find any case where a defendant was permitted to plead guilty and then proceed to jury trial on drug quantity alone. [My Comment: Don't Booker (7th Cir.) and Ameline (9th Cir.) carry any weight here? Both Courts left open the possibility of sentencing juries.]

As a result of Blakely v. Washington, 124 S. Ct. 2531 (2004), the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences. Just yesterday the United States Supreme Court heard oral argument in a case from this District, United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-105), and another from the Seventh Circuit, United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-104). Everyone hopes that early Supreme Court decisions in these two cases will clear up the confusion engendered by Blakely. In the meantime, however, this defendant has said through counsel that he does not want to await the Supreme Court rulings before proceeding. Because he is entitled to proceed without delay, see 18 U.S.C. § 3161, I must determine what procedure to follow in light of Blakely. I have been unable to find any cases directly on point. I therefore work from basic principles.

Since “[a]n indictment must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the “elements” of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government’s objection, accept a plea to a lesser included offense. United States v. Edmonson, 792 F.2d 1492, 1498 (9th Cir. 1986). The defendant here says that pleading guilty to conspiracy covers the “elements” in this case. I do not believe that “scope” of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. [n. 3] Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996). Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. See, e.g., United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002). In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become “elements of the offense”? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an “element” seems to have lost significance. [n. 4] It certainly does not help resolve the issue before me. [n.5] Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. [n.6] The appellate cases generally have said that defendants cannot stipulate their way out of the government’s right to try a case the way it was charged. See Old Chief v. United States, 519 U.S. 172, 186-87, 190-92 (reiterating standard rule, but holding that the defendant’s legal status as a felon is different and that the government can be compelled to accept such a stipulation). This background counsels in favor of sustaining the government’s objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I [n.7] conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. [n.8] True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). “A court may reject a plea in exercise of sound judicial discretion.” Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

[n. 1] A conspiracy to possess and possess with intent to distribute.

[n. 2] This is specifically not a case where the defendant is willing to plead guilty to the offense and stipulate that the judge may determine the relevant sentencing facts, a possibility suggested by Blakely v. Washington, 124 S. Ct. 2531, 2541 (2004). The defendant also wants to go to trial on venue, but a guilty plea would waive his right to jury trial on venue. See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001). Since I am rejecti ng the plea of guilty, however, the defendant may continue to press his venue challenge at trial.

[n.3] The Superseding Indictment does not allege any particular scope for the conspiracy beyond the quantity allegations. Presumably the defendant knows what the government will state in its prosecution version for a factual basis for the plea at any Rule 11 proceeding and is unwilling to agree to the government’s version.

[n.4] As recently as Jones v. United States, 526 U.S. 227, 232 (1999), the Court said: “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”

[n.5] The debate creates certain ironies. The government takes the position that sentence - enhancing factors are not “elements” because nationally the government has argued that Blakely does not apply to federal sentencing. But it wants me not to accept the partial plea, an argument that would be easier to make by calling them elements that the defendant must admit to in order to plead guilty. The government has carefully refrained from doing so. The defendant faces the same dilemma in reverse.

[n.6] It will also save only minimal court time at best.

[n.7] Blakely does not seem to restrict the judge’s role in downward adjustments of the Guideline range such as 3E1.1 permits.

[n.8] It is already too late to get the third point under 3E1.1(b) because of the late stage of the proceedings (the jury has been empaneled).

Now that the argument as to whether a particular fact that enhances the guideline offense level is an element, a sentencing factor, or Mary Jane, is irrelevant, as we are dealing at worst with functional equivalents of elements of aggravated offenses as we go up the offense level, we should all be insisting that with indictments that charge merely "in excess of 5 kilograms" but offer no specific amount, the indictments are insufficient as a matter of law to submit the issue to the jury beyond the 5 kilograms, i.e., that any higher amount had to be specifically alleged, since we are no longer dealing with the post-Apprendi and pre-Blakely situation in which the sole concern was whether the indictment charged and the jury found an amount to trigger a maximum of 20 or 40 years or life. Instead each offense level in the drug quantity table is an, if you will, aggravated version of the lower offense, and had to be specifically charged. Just some food for thought. Any comments will be greatly appreciated.

If you want a copy of the PDF file, please e-mail PRACDL at our new e-mail address link at sidebar. We hope to soon be moving to a sytem where we can actually upload all our own PDF's files and where we can actually categorize them. Until then, please be patient.

Must Read for the Judiciary

There's a natural inclination on the part of the Judiciay -I suppose- to view things in a light that is favorable to the prosecution. Ken Lammers has this post at CrimLaw about a 4th Circuit district Judge's ruling on a suppression of evidence. Would that all of our Judges thought of imitating this judge's example a bit more often. I'd probably settle for just every once in a great while.

Goldings v. Winn Update from Peter Goldberger via BOP Watch

Peter Goldberger, has updated information on Goldings v. Winn, as reflected from this post at BOPWatch:

On 9/9/04 the First Circuit released its lengthy opinion in Goldings v. Winn, totally invalidating the BoP's policy limiting designation of CCCs for service of sentences of imprisonment, as well as its practice of limiting CCC utilization at the end of sentences to no more than 10% of the time to be served (not to exceed 6 mos.). On 9/27/04, according to the appellate docket, the DOJ informed the First Circuit that it would not be petitioning in this case for rehearing, and informing the Court 'that the Bureau of Prisons staff have been instructed to commence re-evaluation of Appellant's placement.'

Accordingly, on 9/30/04 the Court issued its mandate to the district court for enforcement of the decision. The Goldings decision is now binding precedent on all district judges and on all Bureau institutions and personnel within the First Circuit (Mass., NH, ME, RI and PR). Hopefully, it will also be highly persuasive precedent in all the rest of the federal districts throughout the country.

-- Peter Goldberger,
Ardmore, PA

We had earlier posted information on Goldings v. Winn here ("Must Read: Goldings v. Winn, No. 03-2633 (1st Cir. September 9, 2004)") and here ("A Healthy Exchange on Goldings v. Winn").

Also at BOPWatch, Howard O. Kieffer apparently confirms Peter Goldberger's belief as to the persuasiveness of Goldings v. Winn:

In the face of the 1st Circuit's Goldings opinion, with oral argument scheduled for next Friday (October 8, 2004), and the panel disclosed (Tashima, Paez and Pregerson), the Gov't has agreed to "allow" service of a Zone C sentence in a CCC, instead of a prison camp - in exchange for the dismissal of the appeal.

Not only will they "let" her serve the sentence in a CCC, but the CCC of her choice. This is exactly what they did with Montgomery in the 6th Circuit in July. Of course, the Gov't doesn't have to agree to any stipulated order "reversing" the denial of habeas and remanding for implementation of the parties' agreement that she be designated to the CCC for the full term of her sentence. And of course, they also do not have to even make a request that the underlying District Court decision be depublished.

This appeal would have/could have invalidated the Bureau's policy limiting designation of CCCs for service of sentences of imprisonment within the Ninth Circuit (as the First Circuit has done recently).

Sounds all good! We have asked Howard O. Kieffer to provide us with the case citations or docket numbers for the 9th Circuit and will update as soon as we get them.

UPDATE: Howard O. Kieffer at BOPWatch reports here:

The case is Benton v. Ashcroft, 272 F.Supp.2d 1139 (S.D.Cal. 2003), where Judge Moskowitz essentially adopted the BOP’s 10% Rule in its entirety. In large part he reasoned that the BOP’s new policy was interpretive, rather than substantive, in nature, and thus was exempt from the notice and comment requirements of the APA.

The Docket No. for the Ninth Circuit appeal from this decision is 03-56343.

While the oral argument is not yet off calendar, it is a done deal but for the 9th Circuit granting the motion for voluntary dismissal. The prosecutor would not agree as part of this deal to a vacatur of the district court decision but he said it was something we could address at a later point. There are now documents in the court record which indicate, however, that BOP did not apply this rule to this client, thus undermining their "no discretion to deviate" argument.

• Howard O. Kieffer
• Federal Defense Associates
• Santa Ana, California

Many thanks to Peter and Howard for the information. I have in past days notified the Acting Attorney Advisor at MDC-Guaynabo (Puerto Rico) as to whether they were aware of the decision and whether they were acting in accordance with the ruling. I have gotten no reply from the Acting Attorney Advisor, and there is a new Attorney Advisor who hails from the U.S. Attorney's Office but I do not even know if he has already commenced working there. I will write them again. Perhaps a inquiry from our Federal Public Defender (who also sits on PRACDL's Board -- are you reading Joe?) might get a faster response. Will post as soon as I have an answer. Or, if anyone else does, please add a comment to this post.