Judges in the District of Colorado, with the consent of the defendant after consultation with counsel, are continuing to use video teleconferencing during the pandemic. For your reference, here are go-to instructions for participating in these VTC hearings.
The Tenth Circuit will hear oral argument today September 22, 2020 at 2 p.m., in United States v. Maumau, No. 20-4056, a government appeal out of the District of Utah with potential implications for compassionate release litigation throughout the circuit. The issue is whether the district court has authority to determine for itself what constitutes an “extraordinary and compelling reason” that would justify compassionate release under 18 U.S.C. § 3582(c)(1)(A), notwithstanding the BOP and the Sentencing Commission have promulgated definitions. The case concerns both the language of Section 3582(c) and the validity of USSG 1B1.13, as well as its commentary. Former federal district court judge John Gleeson represent Mr. Maumau. You can learn more about Judge Gleeson here: https://www.debevoise.com/johngleeson You can listen to the argument in real time on the circuit’s YouTube channel by clicking here:https://www.youtube.com/watch?v=IaR1ZYqvC4A Audio recordings of the arguments can be found on the circuit’s website – with a time lag of about two days – by clicking here: https://www.ca10.uscourts.gov/oralargument/search/recent
The appellate briefs and district court order are available here:
This week, in United States v. Young, the Tenth Circuit held the district court erred in refusing to suppress defendant’s confession, finding the confession was involuntary because it was induced by a federal agent’s misrepresentations about the law and false promises of leniency, including a false promise about the agent’s access to the federal judiciary.
In an interview with local agents, Mr. Young admitted that a small amount of drugs found the morning of his arrest were his, but denied that a much larger quantity found later that day were his. He then revoked his consent to speak. When an FBI Special Agent later questioned Mr. Young, he told Mr. Young he had spoken to the judge, and that Mr. Young faced either a five-year or ten-year charge. The agent then told him that, with each truthful statement he made, he could “physically buy down” his sentence. Within moments, and in response to the agent’s first question, Mr. Young admitted the larger quantity of drugs were his as well.
Mr. Young moved to suppress his confession as involuntary. At the suppression hearing, the agent claimed he misspoke – he meant to say not judge but “prosecutor.” The agent also said he did not know the actual sentencing ranges for Mr. Young’s offenses and was just providing a tangible number to help make his case that “cooperation can pay dividends.” Although the court found the agent made false representations and improper promises of leniency, the judge concluded that Mr. Young’s confession was not involuntary and denied his motion to suppress.
Mr. Young appealed. He argued that, although the district court was correct to find as a factual matter that there was improper coercion, it was wrong in its legal conclusion that Mr. Young’s confession was voluntary.
The Tenth Circuit’s decision
The government did not challenge on appeal the district court’s factual findings. So the Tenth Circuit reviewed (de novo) only the trial court’s legal conclusion that Mr. Young’s confession was voluntary. The Court of Appeals recited the law applicable to determining whether a confession has been coerced, emphasizing the inquiry is based on a totality of the circumstances and requires consideration of “both the characteristics of the accused and the details of the interrogation.” (Opinion at 7).
The Court first addressed the agent’s conduct–his misrepresentations and promises of leniency. It was significant that the agent misrepresented the law to Mr. Young, “a factor that weighs in favor of concluding his actions were coercive.” (Opinion at 9). In addition, the agent did not merely inform Mr. Young the cooperation would be viewed favorably by a prosecutor, but said he had spoken with a federal judge who would reward him for his cooperation. “But that is not the way the federal system works,” the Court of Appeals held. Although the Court of Appeals acknowledged that some of aspects of the interrogation were not coercive, these factors were not dispositive.
Finally, the Court of Appeals did not agree with the trial judge that Mr. Young’s prior experience with the state criminal justice system would render him less susceptible to believing promises of leniency and misrepresentations by a federal law enforcement officer explaining his access to a federal judge.
The district court’s decision was reversed and the judgment against Mr. Young was vacated.
- Use this decision for its helpful recitation of the well-settled law governing involuntary confessions.
- Note the Court’s repeated emphasis of the totality of the circumstances test (mentioned at least 6 times in the opinion) as the operative framework for assessing voluntariness, making clear no single factor is determinative.
- But take care to view the holding in its factual context. Consider whether the nature of this particular agent’s misrepresentation–that he had personal access to a federal judge–significantly impacted the Court’s view of the ultimate merits.
The Senate Judiciary Committee is holding a hearing today, June 2, to examine best practices for incarceration and detention in the time of COVID-19.
Particularly noteworthy is the Joint Testimony of two BOP officials: Michael D. Carvajal, Director of BOP, and Dr. Jeffery Allen, the BOP’s Medical Director. Much of the testimony addresses the criticism of BOP’s pandemic response, which Carvajal and Allen claim has “been based on misinformation” about how BOP is actually handling things.
Take a close look at the last section, addressing how the BOP is handling home confinement:
“As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences. On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates. The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic. I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement. This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks. While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority. The Attorney General has issued guidance as to which inmates should be considered for home confinement. Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances. Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.
It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider—as the Attorney General’s guidance emphasized—that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released. Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community. Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.”
In United States v Neugin, __F.3d__, 2020 WL 2091842 (10th Cir. May 1, 2020) (published), the Tenth Circuit limited the use of the community caretaking exception and refused to apply the inevitable discovery doctrine to a search of an automobile. Judge Matheson authored, joined by Judge Ebel. Judge Hartz dissented.
Facts: An officer spotted ammunition while lifting the lid of a truck’s camper; he ran a background check and the driver was a felon.
Officers responded to a domestic dispute between Mr. Neugin and his girlfriend, Ms. Parrish, that was taking place at a restaurant. While mediating the dispute, one officer, without permission, opened the lid of the truck’s camper to get Ms. Parrish’s belongings. In doing so, he looked inside the camper and saw a large bucket containing several rounds of ammunition. Officers ran a background check on Mr. Neugin, which showed that he was a felon. An officer asked Ms. Parrish whether Mr. Neugin had a firearm. She said he had a shotgun in the truck and had threatened her with it the evening before. Ms. Parrish consented to the search of the vehicle, and one officer saw the stock of a firearm protruding from the truck. It turned out to be a shotgun, and Mr. Neugin was arrested. Mr. Neugin pleaded guilty to being a felon in possession of a firearm and ammunition, but preserved the suppression issues for appeal.
The community caretaking exception did not excuse the warrantless search.
The community caretaking exception applies only when an officer’s actions are warranted by (1) state law or sound police procedure, and are (2) justified by concern for the safety of the general public. The officer’s actions must also outweigh the individual’s privacy interests. Here, opening the camper wasn’t necessary to protect anyone, even Ms. Parrish. While the search was intended to facilitate the retrieval of Ms. Parrish’s belongings from the scene of the dispute, an officer’s “benign motive” is not enough, and the search was not “de minimis.”
The inevitable discovery doctrine didn’t apply because there would have been no reason to impound the car absent the warrantless search that led to Mr. Neugin’s arrest.
The government argued that even if opening the camper was unconstitutional, the evidence should not have been suppressed because the truck inevitably would have been impounded and searched. The Tenth Circuit disagreed. Instead, the Court reasoned that, if officers had not opened the camper, they wouldn’t have necessarily seen the ammunition, run a criminal history check, or found the gun. Without the violation, therefore, Mr. Neugin would not inevitably have been arrested. And without the arrest, the truck would not inevitably have been impounded and searched. Even though the truck was broken down, Mr. Neugin could have called his own towing company or a mechanic.
Notes from the notes.
Some other key points appear in footnotes, but are worth noting.
- The plain-view exception did not apply because the officer was not lawfully positioned when he found the ammunition.
- The officer could not rely on Ms. Parrish’s consent to search because any consent came after the warrantless search that uncovered the ammunition.
- The automobile exception didn’t apply because the officer did not have probable cause to believe that contraband would be found inside.
Judge Hartz would have affirmed the district court’s decision that the community caretaking exception applied. He reasoned that the community caretaking exception extended to the officers’ attempts to keep the disputing couple under control and keep an eye on Ms. Parrish while she retrieved her belongings from the truck. He thus thought it was proper for the officer to lift the lid of the camper shell, so as to mediate any further argument.
The community caretaking exception is limited. Non-investigatory searches of automobiles under the community caretaking function are only justified if warranted by state law or sound police procedure, and are justified by concern for the safety of the general public.
Use this case for its good language on inevitable discovery. The Court reaffirms that “the inevitable discovery exception to the exclusionary rule cannot be invoked because of [a] highly speculative assumption of ‘inevitability.’” United States v. Owens, 782 F.2d 146, 153 (10th Cir. 1986).
The United States Sentencing Commission has just released a number of reports on federal sentencing practices in fiscal year 2019.
Particularly useful are the data reports compiling federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. You can find all of the reports here.
Data specific to the Tenth Circuit is available here, see USSC Data for Fiscal Year 2019.
And, a short Overview of Federal Criminal Cases for Fiscal Year 2019 is also worth your time.
In Kansas v. Glover, the Supreme Court considered the narrow question “whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked license.” Kansas v. Glover, No. 18-556, 2020 WL 1668283, at *2 (U.S. April 6, 2020). The Court held that “the stop is reasonable,” unless the officer learns “information negating an inference that the owner is the driver of the vehicle.” Id.
The case essentially came down to whether, in the context of an investigative detention based on reasonable suspicion, an officer can infer that the owner is the person driving the car, even though their license has been revoked. An eight-judge majority concluded that inference was reasonable.
The majority began with the premise that it is reasonable to infer that a car’s owner is the one driving, and under the circumstances here, no evidence rebutted that reasonable inference. “The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate” that inference because the “reasonable suspicion inquiry ‘falls considerably short’ of 51% accuracy.” Id. at *3. Neither does the fact that the owner’s license was revoked negate it because, according to the Court, common sense and statistics demonstrate that drivers with revoked licenses often continue to drive. Moreover, under Oklahoma’s license revocation scheme, only “drivers who have already demonstrated a disregard for the law or are categorically unfit to drive” may have their license’s revoked. Id. at *4. Thus, it is not unreasonable to infer that they may continue to drive in violation of the law.
The majority rejected Justice Sotomayor’s concerns in her dissent that the Court was doing away with the requirement that reasonable suspicion be based an officer’s training and experience rather than data and probabilities. The majority countered that officers may apply common sense, not only expertise, and that reliance on data-driven probabilities is wholly appropriate (although, relying “exclusively” on probabilities might not be).
Finally, the Court “emphasize[d] the narrow scope of [its] holding.” Id. at *5. Not only is the holding limited to revoked licenses (as opposed to suspended licenses), but the inference that the owner is driving can be easily rebutted. “For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not ‘raise a suspicion that the particular individual being stopped is engaged in wrongdoing.’” Id.
- This decision does not change Tenth Circuit law. The Tenth Circuit, in a decision by then-circuit-judge Gorsuch, has already held that an officer has reasonable suspicion to stop a vehicle where a database indicates the owner does not have insurance, notwithstanding that the non-owner driver might be independently insured. See United States v Cortez-Galaviz, 495 F.3d 1203, 1207-08 (10th Cir. 2007) (“[C]ommon sense and ordinary experience suggest that a vehicle’s owner is, while surely not always, very often the driver of his or her own car.”). And, at least one district court has relied on Cortez-Galaviz to find reasonable suspicion to stop a car where the owner had their license revoked, which was the fact pattern in Glover. See United States v Wissiup,2013 WL 4430872, at *4 (D. Utah Aug. 16, 2013).
- The holding is narrow. Officers may stop cars if the owner has a revoked license, unless they have reason to believe that someone other than the owner is driving (for example they look different, or the non-owner driver shows their ID).
- And the result appears to depend on the state’s particular statutory scheme. The holding is at least somewhat dependent on Oklahoma’s scheme allowing revocation for only relatively serious offenses. Thus, in another state where revocation could be based on more minor conduct, an officer may not be able to infer that the owner is driving on a revoked license.
As we make release arguments in light of COVID-19, consider using data visualizations in your filings to advance the cause.
But there is good reason to believe the numbers reported by the BOP understate the actual number of tested-positive cases. When using BOP data, make sure to keep in mind that just because a facility isn’t listed on the BOP website does not mean there are no presumptive positive or clinically confirmed cases in that facility.
The Prison Policy Initiative is aggregating information about the criminal justice system and COVID-19.
Other sources of COVID-19 data and statistics can be found here. This is a website maintained by Johns Hopkins University Center for Systems Science and Engineering; they are tracking the COVID-19 spread in real time on an interactive dashboard with data available for download.
The Centers for Disease Control and Prevention also provides daily updates on the cumulative numbers of COVID-19 cases in the United States.
Data about COVID-19 cases in Colorado is updated daily by the Department of Health.
The District of Colorado continues to respond to the ongoing impact of COVID-19 on the functioning of federal courts.
On April 6, 2020, Chief Judge Philip A. Brimmer entered a General Order, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), authorizing judges in the district, with the consent of the defendant after consultation with counsel, to use video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available, for a number of criminal proceedings. The specific hearings covered are listed in the General Order, and include felony pleas under Rule 11 and felony sentencings under Rule 32 “if judges in individual cases find, for specific reasons, that felony pleas or sentencings in those cases cannot be further delayed without serious harm to the interests of justice[.]”
This General Order will remain in place for 90 days “unless terminated earlier.”
A previously-entered General Order describing COVID-19-related changes to court operations (in place through May 1, 2020) can be found here.