th.jpegLast week, the U.S. Sentencing Commission voted to submit to Congress proposed amendments to our “beloved” sentencing guidelines. A text of the amendments is here. The amendments will be formally submitted to Congress by May 1, and they will take effect November 1 unless Congress takes action otherwise.

Here is a summary of some of the proposed changes:

1. Acceptance of Responsibility:

In today’s world, where approval ratings of Congress are alarmingly low, we grow less and less hopeful that our government can effectively function. Every now and then, however, we see a glimmer of light that offers some positive indication of a job well done. The United States Sentencing Commission recently published a data report on the results of Congress’ Fair Sentencing Act of 2010. The data is interesting.

Recall that Congress initially created in 1986 a widely disparate 100:1 sentencing structure between crack and powder cocaine on the view that crack was a more dangerous and harmful drug. In decades after, extensive research by the United States Sentencing Commission and other experts debunked Congress’ initial theory by finding that the differences between the effects of the two drugs were grossly exaggerated. Research conclusively proved that the sentencing disparity was unwarranted and effectively created an unconstitutionally discriminate sentencing scheme. Simply put, the data proved there was no reasonable basis to punish one man more harshly than another for the same type of conduct.

After more than fifteen years of attempted legislation to fix the wrong, Congress ultimately passed the Fair Sentencing Act of 2010. The Act brought fairness and equality into our sentencing structure by increasing the quantities of crack cocaine that trigger the five and ten-year mandatory minimum sentences, and eliminating the five-year mandatory minimum sentence for simple possession of crack cocaine. The Act was signed into law by President Obama on August 3, 2010, and later retroactively implemented by the Sentencing Commission through sentencing guideline amendment.

Two married doctors were charged with several types of health care fraud crimes, including, (1) “upcoding” cheaper “trigger-point injections for more expensive “facet-point” injections, (2) submitting “phantom” bills for services never rendered, and (3) unlawful distribution of controlled substances. They pled guilty to counts only charging the “up coded” injection-billing fraud. The agreement did not specify an agreed restitution amount. The PSR recommended restitution of $43,318,170.93, and defendants objected on several bases: (1) no credit was given for amounts insurers would have paid for actual trigger-point injections; (2) improper inclusion of insurer payment for non-injection treatment unrelated to the offenses of conviction, such as undisputedly legitimate allergy services.

The defendants submitted a report prepared by their own forensic accountant. Applying credits for the two categories mentioned above, the accountant concluded the actual loss to insurers totaled $21,028,963.61. The district court overruled the objections and ordered restitution of $43,318,170.93. The Fifth Circuit vacated the district court’s sentence and remanded the case for recalculation. See United States v. Sharma & Sharma, Nos. 11-20102, 20167, & 20204.

As to the first argument, the court found that the probation office “went astray” by including the total amount of insurer payments to the doctors, resulting in an overstatement of victim loss. Specifically, the court found the restitution award should not have included amounts for non-injection medical services (i.e., conduct outside the counts of conviction), particularly where one insurance company’s report expressly stated it was “not sure which claims relate to the guilty plea.” The Fifth Circuit found that the “obvious mistakes” in the PSR “undermine our confidence that the Probation Office gave any meaningful scrutiny to the actual losses of Medicare, Medicaid, and the remaining twenty-seven private insurer victims.”

Charles Irby appeared for jury selection, ready to fight against charges of committing various alleged tax crimes, including four counts of willful failure to file a tax return and one count of attempting to evade paying a tax. United States v. Irby, No. 11-60800, __ F.3d __ (5th Cir., Dec. 18, 2012). All was going according to plan, when the trial judge says the following:

“It’s a civic duty, and the older circuit judge I used to practice under many, many years ago used to tell jurors, “You’ve got two things [sic]: You should vote, you should pay your taxes, and then serve on a jury. Three things that you should do to comply with your citizenship.”

Mr. Irby was found guilty, and the court later ordered sentences of 60, 36 and 12 months, all to run consecutive to each other for a grand total of 108 months in prison. Not surprisingly, Mr. Irby complained on appeal that the district judge’s pronouncement during jury selection violated Mr. Irby’s constitutional “due process” right to a fair trial. As we know, the Supreme Court has repeatedly recognized that our Constitution is there to ensure that all citizens receive a “fair trial in a fair tribunal.”

The year of our Lord 2012 saw the passing of two gifted men, each of whom practiced their craft in the criminal law courts of Bexar County, Texas. This thanksgiving season, I reflected on my experience with each man. Each lifted the spirit of the room they occupied; each earnestly advocated his position with integrity, passion and a unique set of skills; each exemplified what an attorney should be. This thanksgiving season, I gave thanks for Jimmy Parks, Jr., and Charles “Chip” Rich, III. As I pondered about their lives, however, I received an unexpected gift . . . a different perspective on justice.

Much has been written and said about each man since their respective passing. Each life commendable; memory of each deserved. Though each worked in the same courthouse and the same area of law, their lives did not often intersect. They were not social friends, insofar as I know; nor did they attend the same church or share the same close friends. What they did share were remarkable, good qualities in their passion for law and justice; they were both outstanding attorneys; they both loved their children and families immensely; they both were strong in their faith; and they both carried the name of their respective fathers.

What stirs me, however, is not their similarities, but rather the crossroad that the proximity of their deaths has brought me to. As I have reflected on these men, I realize that it is not their qualities that have had the greatest impact on my life. Rather, what jumps out to me as an enlightening aspect of their existence and the proximity of their deaths is the juxtaposition of the spiritual force that guided them against the diametrically-opposing positions they each advocated. They each traveled down near-parallel tracks in our criminal justice system, consistently taking adversarial positions. The near-parallelism of their advocacy ostensibly was to arrive at a crossroad of justice. But now, after thinking more about their faith as it was applied in their careers, I began to wonder whether the crossroad of their lives and deaths is meant to steer me to see justice in a new light.

judge.jpgThe American Board of Trial Advocates awarded two Texas jurists the honor of being a “2012 Jurist of the Year”. The Texas chapters of the trial advocacy group named Chief U.S. District Judge Fred Biery of the Western District of Texas and Justice Sue Walker of the Second Court of Appeals (Ft. Worth) in a press release. The organization said the following of the honorees:

“The recipients . . . are held in the highest esteem by TEX-ABOTA members . . . They must be fair and ethical and have made significant contributions toward preserving and promoting the jury trial system.”

Texas’ sixteen chapters comprised of more than 1,000 members participated in the decision. Congratulations to these two outstanding jurists!!!

Good news for lawyers appointed to represent defendants in large document-heavy cases: attorneys can now utilize a web-hosted internet platform for review of large volumes of case material. After the case material is “deposited” in one central repository, it then can be reviewed, tagged and accessed by the lawyer in the privacy of his/her office or home.

The software, styled “CaseVantage”, is a secure Internet database review tool for case data and e-discovery. Detailed info on this program can be found here. Similar to the popular database software engine known as Summation, the online CaseVantage system allows each appointed defense attorney on the case to link to and review case data; keep private notes about the data; and tag, filter, annotate and code information about the files which can be shared with others on the team. A big plus is the availability of project management expertise and training for all users.

I spoke with a member of the National Litigation Support Team about the program. There are a couple of hurdles to overcome in order to qualify to use the program. First, the platform does not have room to host all cases. Each potential case is analyzed to determine whether it is suitable for the program. The primary factor appears to be whether the case contains a large amount of case material. It should be noted, however, that the electronic “size” of the material may not be necessarily determinative. For example, if the case involves many audio and/or video files, it may not qualify even though the material is more than a “terabyte” in size. Conversely, if the case involves less than a “terabyte” of material, but such material consists of tens of thousands of scanned pages of documents, it may qualify due to the difficult challenges posed in document review.

About two years ago, the Supreme Court decided in Padilla v. Kentucky that the Sixth Amendment imposes a duty to advise criminal defendants about the potential deportation/removal consequences arising from a guilty plea. Failure to do so nullifies the plea.

Before anyone gets too excited, however, the Fifth Circuit decided this month that Padilla is not applicable retroactively and therefore may not serve as a basis to collaterally challenge a conviction. In other words, even though a defendant pled guilty without having received what is now considered essential advice, he cannot complain about the error if it occurred before March 2010.

In United States v. Amer, the defendant filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255, alleging his attorney failed to inform him that his guilty plea carried a risk of deportation. It appears the government did not dispute that Amer’s attorney failed to give him advice about deportation consequences. On its face, this is a challenge squarely fitting within Padilla. Not so fast, Mr. Padilla. In situations where a prisoner is asserting a right based on a recent Supreme Court case, the law allows relief only if (a) the prisoner’s claim is made within one year of the Supreme Court “initially” recognizing the right, (b) the prisoner’s claim is based on a right “newly recognized” by the Supreme Court, and (c) the right was “made retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2255(f)(3). Where retroactivity is not clear, courts apply a formula outlined in another Supreme Court case, Teague v. Lane, to determine whether the rule can be applied retroactively. In Teague, the basic premise is “new” rules of criminal procedure are generally not retroactive.

When Roger Clemens was playing major league baseball, I wonder how he would have felt if the umpire told him in Game 7 of the World Series that fans were going to be allowed to decide whether Clemens should throw a fastball, curve or slider to each batter? Something tells me that he would not have reacted too well. Heck, some pitchers don’t like their own managers, catchers or wives making those calls.

Well, that’s similar to what is being allowed in Clemens’ federal criminal trial. At the conclusion of each witness’ testimony, the judge is allowing jurors to submit written questions for the witness. Each juror, if he/she chooses, submits a note card to the judge. The judge, U.S. District Judge Reggie Walton, then reviews the cards at a bench conference with prosecutors and defense lawyers, and each is allowed to object to the question being posed and/or offer an alternative wording. If approved, the judge reads the question(s) to the witness and the witness testifies in response.

Apparently, the judge presiding over Clemens’ trial has long advocated for this procedure, reasoning that it helps jurors concentrate on each witness’ testimony and adds to a more full understanding of the evidence. This same judge allowed the procedure in the criminal trial of “Scooter” Libby, another high-profile trial, and lawyers for both sides affirmed its benefit.

It’s refreshing when you read a court’s opinion and you see that the court has its eyes open to a changing world. Where it recognizes that old cases may no longer reflect reality, and chooses not to merely rubber-stamp a party’s same ‘ole argument that’s worked for years. In United States v. Jones, 2012 WL 1309837, a drug seizure case close to the U.S./Mexico border, the government relied on classic border “roving patrol” case law to justify a traffic stop. As in hundreds of cases through the past decade, the government argued (1) Highway 83 is “notorious for alien and drug smuggling,” (2) two vehicles were “driving in tandem,” (3) a flatbed was “not typical of oilfield trucks in the area” because it had no company logo on its side doors, and (4) oilfield trucks are not on the highway during nighttime hours. Though these arguments historically have worked in border roving patrol stops, the Jones court took a different approach by choosing to factor in the new business environment along the south Texas border. Going through each of the government’s arguments which attempted to establish the agents’ reasonable suspicion, the court distinguished prior case law.

The Border’s “notorious smuggling” Roads

The government argued that agents first became suspicious when they observed two trucks traveling north on Texas Hwy. 83, a road they described as a “notorious smuggling route” in proximity to the border. This portion of Hwy. 83 runs north/south roughly parallel to and at times no further than 1/2 mile from the Rio Grande River; the river acts as the natural Texas/Mexico border. Citing Fifth Circuit precedent, the government argued that a “road’s reputation as a route commonly used for transporting contraband may add to the reasonableness of suspicion.” The Jones court, however, distinguished this precedent in making the observation that this “past year alone, Highway 83 and other local roads have seen a marked increase in traffic due to an explosion of oil and gas exploration in the area.” The court rejected the government’s argument that has been applied historically to vehicles traveling on this road, finding that the recent change in business activity in this area no longer allows the same assumptions of guilt. As found by the court, travel along this road is “insufficient to support a roving patrol stop,” “despite the flatbed’s presence on a border road frequently used by smugglers.”