(Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
New Stuff from Sent'g Commission. The Commission has published a new Interactive Sourcebook of Federal Sentencing Statistics. The Sourcebook allows users to re-create and customize tables and information from the printed Sourcebooks, with customizable viewing options available as well. The Commission's also posted its second quarterly update for FY2012, which you'll find here.
Support Your Variance. And since you can never have enough good sentencing data, the good folks at Defender Services have published this handy set of tables showing the percentages of within-, above-, and below-guideline sentences for offenses involving those drugs for which sentences resulted in a guideline range less than half the time (1) for all criminal histories, (2) for defendants in criminal history category I, and (3) for defendants with no arrests or any criminal history.
Gunn for Better Discover in CP Cases. Carl "Big G" Gunn blogs on that topic here.
The Growth of For-Profit Detention. The Sentencing Project has a new report out on the growth of for-profit federal detention, here (pdf), which details how "harsher immigration enforcement and legislation led to a 59 percent increase in the number of detainees being held by the federal government between 2002 and 2011."
New Supervision Policy. U.S. Courts reports on a new policy that will limit supervision of low-risk offenders and shift greater resources to supervising high-risk offenders. Under the policy, "probation officers will limit their engagement with low-risk offenders solely to those activities required by the court's sentencing order."
Appellate Practice Tips from Callahan, Schroeder and Smith. As recounted by Record on Appeal, here.
Including Federal Courts. The New York Times reports on new instructions issued by the New Jersey Supreme Court designed to ameliorate the "troubling lack of reliability in eyewitness identifications." Garden State jurors will now be instructed to consider stress, distance, poor lighting, elapsed time, racial differences, and other factors before deciding whether to credit an eyewitness identification. Said one law professor, the instructions, though "far from perfect," are "far more detailed and careful than anything ... anywhere [else] in the country."
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Pope (disobedience of command to empty pockets did not implicate Fourth Amendment, and second command was supported by probable cause - defendant's subsequent admission that he possessed marijuana - and exigent circumstances).
• U.S. v. Pariseau (defendant voluntarily consented to airport search when he said "You may as well search me now" after arresting officer explained defendant would be detained while officers sought warrant) (venue was proper in Alaska where defendant, who lived in Alaska, was apprehended on his way back to Alaska with methamphetamine strapped to legs, had taken similar trips to Alaska, and had taken steps in Alaska toward completion of continuing distribution offense here).
• U.S. v. Oliva (defendant had standing to challenge interceptions of cell phone communications, even though he neither admitted voices were his nor asserted any intercepts took place on his premises: he was named as subject and his conversations were target of surveillance) (defendant did not prove that government's interceptions under order authorizing standard intercepts converted cell phones into "roving bugs," which, if they had done so, would require specific authority for roving intercepts under separate subsection that require enhanced showing). See Ninth Circuit Blog's analysis here.
• U.S. v. Rangel (in deciding to run sentences for mail fraud and money laundering consecutively, district court explicitly based decision on §3553 factors, and so did not clearly err by failing to provide notice under Rule 32(h)) (in determining sentence, district court did not impermissibly rely on defendant's inability to pay restitution).
• U.S. v. Hernandez (memo) (frisk of nervous defendant who had been assaulted was without reasonable suspicion; inevitable discovery did not apply because officers did not know he was on probation).
• Runningeagle v. Ryan (§2254) (Brady claim involving alleged statements to prosecutors by co-defendant's former cell-mate was speculative, and state court did not unreasonably apply CEFL in denying it) (state court's denial of IAC claim based on counsel's failure to join co-defendant's severance motion was not unreasonable application of Strickland, and there is no CEFL requiring severance even when defendants assert mutually antagonistic defenses) (no IAC in counsel's failure to seek separate sentencing hearing) (state reasonably held that prosecutor's improper opening statement did not amount to due process violation) (remanding for reconsideration of procedural default in light of Martinez) (in dissenting opinions, Pregerson would remand for discovery on Brady claim, and Bea would have denied Martinez motion).
• Patel v. City of Los Angeles (civil) (city ordinance requiring motels to maintain and disclose guest registry information to police did not violate Fourth Amendment).
Short Circuits (and Solid States).
• U.S. v. Prosperi (1st Cir.) (in fraud case, 6-month home monitoring sentence in face of 87-108-month guideline sentence was reasonable, where district court had determined that estimated loss amount was "unfair proxy for culpability [that] should not drive the sentencing process").
• Borrome v. Attorney General (3d Cir.) (immigration) (unlicensed distribution of prescription drugs is not aggravated felony).
• Campbell v. U.S. (6th Cir.) (§2255) (trial counsel's failure to file notice of appeal at defendant's required evidentiary hearing on IAC claim, notwithstanding appeal waiver.
• U.S. v. Younis (N.D. Ohio) (officer's deliberate failure to turn on recording equipment undermines credibility of his testimony about supposed traffic violation).
• People v. Riccardi (Cal.) (death sentence imposed after juror had been excused in violation of Witherspoon-Witt is reversible per se under Gray v. Mississippi).
The Week in Sausage Making. Measures introduced include H.R. 6134 (to provide affirmative defense for medical use of marijuana).
For the Bookworms - New books and scholarly articles of note.
• "Defining Federal Crimes - Chapters 2-4," Daniel C. Richman et al., chapters from Defining Federal Crimes, forthcoming (SSRN) (analyzes criminal jurisdiction under the Commerce Clause, looks at how separation of powers affects interpretation, and explores the law of mail and wire fraud).
• "The Criminal Rules Enabling Act," Max Minzner, 46 U. Richmond L. Rev. 1047 (2012) (SSRN) (argues that Fed. R. Crim. P. 5, 6(e), 41 (g), and 48 are potentially invalid because they are insufficiently procedural).
• "GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum," Fabio Arcila Jr., N.C. L. Rev. (forthcoming) (SSRN) (explores the implications of Jones and argues that the case may resolve important questions raised by Katz).
• "Analogy Breakers: A Reality Check on Emerging Technologies," Luke M. Milligan, 80 Miss. L.J. 1319 (2011) (SSRN) (argues that near-exclusive emphasis on technological instrument's functional role is indeterminate, undisciplined, and in disregard of cases like Knotts and Kyllo, and that more attention needs to be given to the practical dimensions of emerging technologies).
• "Jurors and Scientific Causation: What Don't They Know, and What Can Be Done About It?," N. J. Schweitzer & Michael J. Saks, Jurimetrics (forthcoming) (SSRN) (describes and advocates for a quick and efficient way to educate jurors in civil cases so that they more capably evaluate scientific causal claims).
• "Prosecutor Elections, Mistakes, and Appeals," Bryan C. McCannon, working paper (SSRN) (argues based on empirical work that popular election of prosecutors results in inaccurate sentences and wrongful convictions).
• "Textualism in Context," Andrei Marmor, working paper (SSRN) (argues that in light of strategic aspects of the "conversation" between legislature and judiciary, textualism has little to commend it as a general theory of statutory interpretation).
• Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties, Sheldon Krimsky & Tania Simoncelli (Amazon) (brings medical ethics, science policy and civil liberties to bear on how the U.S. has balanced use of DNA technology with privacy rights of its citizens).
Suggestions or corrections? Email Michael Drake.