Clemency Project 2014 - Notice to the Bar - District of New Jersey

NOTICE TO THE BAR CLEMENCY PROJECT 2014:

Clemency Project 2014 was conceived to provide pro bono legal assistance to federal prisoners seeking to reduce their sentences on the ground that they likely would have received a substantially lesser sentence had they been sentenced today.

To facilitate the screening process of Clemency Project 2014, Chief Judge Jerome B. Simandle signed Standing Order No. 15-1 on March 24, 2015. Under that order, pro bono counsel may request the documents listed therein from the United States Probation Office, U.S. Pretrial Services, and the Clerk’s Office of this Court upon presentation of the signed, written consent of their client.

Procedure for Requesting Documents under Standing Order No. 15-1:

Pro bono counsel requesting documents under Standing Order No. 15-1 should first review the docket and obtain the “pertinent” documents through PACER.

Those documents NOT available on PACER can be requested from the United States Probation Office in Newark. The written request listing the documents, along with the consent form signed by the client, should be forwarded to:

Wilfredo Torres, Chief Probation Officer
United States Probation Office
50 Walnut St., Room 1005
Newark, NJ 07101-0459

A copy of the written request and signed consent form must also be forwarded to:

Beth Neugass, Deputy Chief, Investigations, at her email address: Beth_Neugass@njp.uscourts.gov. 

As for documents NOT available through PACER or from the Probation Office, the Probation Office will deliver the document request to the designated personnel in the Clerk’s Office and/or Pretrial Services. Those offices will then send the requested documents to the requesting attorney.

Transcripts of Court Proceedings: The Clerk’s Office will provide to pro bono counsel, free of charge, only those transcripts which have been filed with the Court and are located in the Clerk’s Office file. Transcripts of court proceedings not filed with the Clerk’s Office must be obtained directly from the court reporter at the cost assessed by the reporter. The Clerk’s Office will assist pro bono counsel in contacting the court reporter as to the request.

June 1, 2015                                                               WILLIAM T. WALSH, CLERK

47 year prison terms affirmed for brothers convicted of Hobbs Act robbery of local drug dealer

Brothers Barron and Barry Walker were convicted after trial of various offenses including drug trafficking, firearm and robbery charges. Each was sentenced to a prison term of 47 1/2 years. On appeal, the brothers challenged their convictions and sentences on multiple grounds, including improper joinder, sufficiency of the evidence, improper expert testimony, and an alleged Brady violation. The Third Circuit, in United States v. Walker, 10-3090 (3d Cir. Sept. 13, 2011), quickly disposed of the severance claims, holding that joinder of all counts against both brothers was proper, despite the inclusion of two escape-related charges solely against Barry Walker, where the escape charges arose directly from the earlier drug, conspiracy and gun charges against both brothers. Nor, according to the Third Circuit, did the district court abuse its discretion in declining to grant Barron Walker's motion to sever his trial from his brother's trial where the issues were uncomplicated, the trial lasted only four days, included only two defendants and encompassed only three distinct episodes of criminal conduct.

With regard to the sufficiency of the evidence on the 18 U.S.C. § 924(c) charge (use of a firearm in furtherance of drug distribution), the Court found that the testimony of the confidential informant and a cooperating co-defendant, while not overwhelming, was sufficient to sustain the convictions. The witnesses testified that they observed Barron and Barry Walker arrive together in the same vehicle, that Barron had cocaine in his possession, and that Barron and Barry jointly made a cocaine sale while Barry wore a gun on his hip.

Next, the Court addressed the brothers' challenge to the government's expert on cocaine trafficking. In order to support the interstate commerce element of the Hobbs Act robbery charge, the government's expert, a 30 year law enforcement officer and narcotics investigator, testified that cocaine is manufactured outside of Pennsylvania and transported into the State. The Walkers' argued that the expert's testimony was unreliable because they could have possessed synthetic cocaine and the expert was unable to distinguish between synthetic and plant-based cocaine. The Third Circuit rejected this argument and agreed with the district court's conclusion that the expert's method for reaching his conclusions was reliable. It found that the expert's opinions were based on his personal experiences interacting with drug traffickers and law enforcement personnel over 30 years. Accordingly, the Court concluded that the expert's testimony was properly admitted.

With regard to the sufficiency of the evidence on the Hobbs Act robbery charge, the Third Circuit held "that by presenting evidence that (1) the Walkers attempted to rob a cocaine dealer of a de minimis amount of drugs and cash, and (2) the drug dealer's cocaine originated outside of Pennsylvania, the government presented sufficient evidence" to satisfy the interstate commerce element of the Hobbs Act. The Court acknowledged that the use of the Hobbs Act to prosecute "what could be considered a fairly garden-variety robbery gives us some pause," especially in light of the extremely harsh sentences that resulted. Nevertheless, the Court "trust[s] and expect[s]" that federal prosecutors will exercise their broad prosecutorial discretion "to make the most effective use of federal resources, to avoid supplanting the state criminal systems that quite ably address classic state-law crimes, and to seek just and appropriate criminal sentences in the course of their representation of the United States."

Finally, the Third Circuit addressed the defendants' claim that the government withheld exculpatory evidence material to their defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Court found that the government' s failure to disclose information regarding an incident where their confidential informant was found to be in possession of 0.18 grams of crack cocaine was not material to the instant prosecution where the CI was not the only witness against the defendants and had already been thoroughly impeached by the defense team.

For the foregoing reasons, the Third Circuit affirmed the convictions and sentences of both Barron and Barry Walker.

New Standing Order regarding return of passports

The District Court for the District of New Jersey recently adopted a Standing Order regarding the disposition of passports surrendered to Pretrial Services while a defendant is on pretrial release. The goal of the Standing Order is to obviate the need for motions by defense counsel or defendants themselves in order to effectuate the return of travel documents. The Standing Order covers the return of both United States passports and foreign travel documents to United States citizens and non-citizens upon dismissal, acquittal, and the imposition of various length sentences.

Fair Sentencing Act of 2010 - Emergency Amendments

On Friday, October 15, 2010, the United States Sentencing Commission promulgated temporary emergency amendments, effective Nov, 1, 2010, which implement the directives in the Fair Sentencing Act of 2010 (FSA). A reader-friendly version of the amendments can be found here. Public comment on the proposed amendments by the Federal and Community Defender community, which may be helpful in deconstructing the amendments, can be found here.

The temporary emergency amendments deals not only addresses changes in base offense levels based on the new crack/powder ratio of 18:1, but also addresses the elimination of the mandatory minimum for simple possession of crack and adds several adjustments for all drug types. Among those adjustments are various enhancements for use of violence or threatened use of violence during the commission of a drug offense, bribery or attempted bribery of a law enforcement officer to facilitate the commission of the offense, maintaining a premise for the purpose of manufacturing or distributing a controlled substance and super-aggravating role. Finally, the amendments cap a defendant's base offense level at 32 if he receives a minimal role adjustment and provide for a two level reduction for defendants who receive minimal role and who were "unwitting dupes" in the offense (i.e., minimum knowledge of scope and structure of enterprise, no monetary compensation, motivated by an intimate or familial relationship or by threats or fear when the defendant was otherwise unlikely to commit the offense).

A Practice Kit for obtaining pretrial release of non-citizen clients

The Federal Defenders of Eastern Washington and Idaho put together this handy kit of information for lawyers seeking bail for their non-citizen clients with ICE detainers:

http://www.fdewi.org/wordpress/?p=1001

Sentencing Commission Proposes Cultural Assimilation Departure for U.S.S.G. §2L1.2 cases

On April 13, the USSC unanimously voted in favor of an amendment permitting a downward departure in illegal reentry cases under U.S.S.G. §2L1.2 in cases where the defendant has established cultural ties to the United States from childhood and those ties provided the primary motivation for the reentry or continued presence in the United States. The proposed new amendment is at application note 8 to §2L1.2. Barring any action from Congress, the amendment will take effect November 1, 2010.

USSC votes to eliminate U.S.S.G. Section 4A1.1(e) from Guidelines

On Tuesday, April 13, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting U.S.S.G. §4A1.1(e) (adding 2 criminal history points when the instant offense was committed within two years of release from prison). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available at http://www.fd.org/pdf_lib/FPD_Testimony%20of%20Meyers%20and%20Mariano_FINAL.pdf.

The recency amendment will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.