ADMISSION OF INTERNET-BASED DOCUMENTS AT TRIAL

Panel attorney George Chaney is steering evidence from the Information Superhighway directly into the courtroom. Recently, in his defense of Sidney Joseph before Judge Clement, Chaney successfully introduced into evidence hard copies of several documents generated from electronic Internet images which contained photographs of prop firearms used in theatrical settings. Overcoming an initial government objection regarding a lack of proper foundation, Judge Clement admitted the Internet-based documents for use in cross-examination of the government’s firearms expert. Only after the expert erroneously identified these items as photographs of genuine firearms, did Chaney reveal that they were photos of prop guns. Chaney was thus able to argue in closing that if a firearms expert could be so easily mistaken, the government’s photographs of the perpetrator depicting what appeared to be the defendant holding a .38 Smith & Wesson was all the more suspect.

Key evidentiary rules potentially pertinent to this issue are Fed. R. Evid. 803(6) regarding hearsay exception for business records, Fed. R. Evid. 901regarding authentication of documents and Fed. R. Evid. 1001 and 1003, regarding admission of electronically re-recorded versions of original documents. For further background on introducing Internet-generated documents, see Dieseth, Paul, The Use of Document Depositories and the Internet in Large Scale and Multi- jurisdictional Products Liability Litigation, 27 Wm. Mitchell L. Rev. 615, 625 (2000).

Kudos to George Chaney for using the Net to blaze the trail into the 21st century courtroom.

The purpose of a detention hearing is to determine whether conditions exist that will reasonably assure the appearance of the defendant at trial and the safety of any other persons and the community. Defense counsel should be vigilant about motions for pre-trial detention hearings and insure that the motion is being properly brought. There are too many clients ordered detained. Nationally, only 2% of people released on bond fail to appear for trial. With such a reduced chance of nonappearance, risk of flight is historically unlikely. At least one of the threshold requirements of 18 U.S.C. §3142(f) must be present in order for the government to move for detention. Under the Bail Reform Act, if none of these requirements are met, there is no basis for the detention hearing. A nexus must exist between the charge and the request for detention. If a nexus does not exist, the felon may not be detained unless the defendant is a risk of flight or will obstruct justice. Otherwise, danger to the community is not a viable reason to request detention.

The government can only move for a detention hearing when the case involves:

(1) a crime of violence; (2) an offense for which the maximum

sentence is life imprisonment or death; (3) a drug offense carrying a maximum term

of imprisonment of ten years or more; (4) any felony committed after the person has been convicted of two or more of the

above offenses (state or federal); (5) a serious risk of flight; or (6) a serious risk that the person will obstruct

or attempt to obstruct justice or threaten, injure or intimidate or attempt to do so to a prospective witness or juror.

The burden is on the government to prove that one of the six factors exist. If the case does not involve a crime or circumstance set out above, the defendant may not be detained even if the judge finds him to be a danger to the community. In United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992), the Fifth Circuit held that “a detention hearing can only be held in a case that involves a crime or circumstance set out in section 3142(f) of the Act. … [t]herefore, the fact that [a felon] may pose a threat to the community is not, standing alone, a sufficient basis to detain him before conviction, his detention is not authorized by the Act.” The Fifth Circuit is in agreement with the First and Third Circuits. See United States v. Ploof, 851 F.2d 7, 9-11 (1st Cir. 1988) and United States v. Himler, 797 F.2d 156, 160 (3rd Cir. 1986).

Under 18 U.S.C. §3142(e), if the judge orders pre- trial detention, a rebuttable presumption arises that no conditions will reasonably assure the safety of other persons and the community. Any evidence favorable to the defendant may rebut the presumption, including evidence of family and employment ties. Proof that the charge is not listed under §3142(f) can also serve to overturn detention.

A challenge to the presumption that a 18 U.S.C. §922(g) (felon in possession of a firearm) violation is a crime of violence has important ramifications for motions brought by the government for pre-trial detention hearings. Defense lawyers may challenge motions brought under §3142(f)(1)(A) when a crime of violence has not been charged and the remaining factors have not been met. Under Byrd, a ruling that a defendant be detained based solely on a determination that he is a danger to the community is improper unless the defendant is charged with a crime of violence or one of the other 5 crimes or circumstances listed in §3142(f)(1).

The Fifth Circuit has never decided whether a felon-in-possession of a firearm is a crime of violence under the Bail Reform Act. Only three circuits have addressed the issue. The D.C. and Sixth Circuits held that mere possession of a firearm by a felon is not a crime of violence. See United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999) and United States v. Hardon, 149 F.3d 1185, No. 98-1625, 1998 WL 320945 (6th Cir. June 4, 1998) (unpublished opinion). The Second Circuit has held that it is. See United States v. Dillard, 214 F. 3d 88 (2d Cir. 2000). Courts are concerned that since felons are barred from possessing firearms, their disregard for this bar creates a constant, on-going threat that they will use the firearms.

Although the Fifth Circuit has not yet spoken on the issue, Judge Clement in the Eastern District of Louisiana held that for purposes of the Bail Reform Act, a felon-in-possession of a firearm charged under §922(g) is a crime of violence. See United States v. Kirkland, No. Crim. A. 99-143, 1999 WL 329702 (E.D.La. May 21, 1999). The issue is most often battled out in the district court. The United States Supreme Court recently denied certiorari to a Second Circuit challenge to that circuit’s own ruling in Dillard. Because the defendant will usually moot the issue by pleading to the felon-in-possession of a firearm charge, the issue does not routinely reach appellate review.

The Bail Reform Act defines a “crime of violence” as:

(A) an offense that has an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another;

(B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; or

 As of May 1, 2011, the U.S. Probation Office is conducting PSI interviews remotely (videoconferencing) for clients housed at certain prisons. Interviews are not recorded or monitored. Defense counsel will be offered the option of participating in the PSI interview remotely from the U.S. Probation Office in lieu of travelling to the facility and will be allowed to speak with the client privately if needed. The U.S. Probation Office will get the necessary authorizations to release information after the rearraignments and before the clients are returned to their facilities.

 Five Eastern District of Louisiana judges (Judges Barbier, Africk, Fallon, Vance, and Lemelle) are currently participating in a pilot program requiring the U.S. Probation Office to file PSIs electronically. They are delivered to attorneys through CM/ ECF.

If the case is a sealed case or if the re-arraignment is sealed, these reports will NOT be electronically filed. They will be submitted on paper in a sealed manner to the attorneys and the court.

If a case is appealed, these reports will continue to be transmitted on paper in a sealed envelope to the Court of Appeals. At some point in the near future, we anticipate the 5th Circuit will begin accepting these documents electronically, as well.

 The Probation Office will designate personnel to e-file these reports. The designated probation officers will be set up as court users in CM/ECF with limited docketing privileges.

 When a report is filed, a docket entry will appear on a public docket sheet with the docket text reflecting that the pre-sentence report is either a ‘draft’ or ‘final’, the defendant’s name, and that the document will have restricted access.

 The NEF of the docket entry will be sent only to the government and applicable defense attorneys as determined by Probation. If an attorney is not a CM/ECF user, Probation must serve the report on them by conventional means.

 The Probation officer will then grant electronic access to view the document only to the government and applicable defense attorneys via an electronic “padlock” similar to the way court transcripts are handled now. This padlock also has a ‘history’ feature displaying the user who grants access, to whom access is given, and the date this occurred. The Probation officers have been cautioned to verify that only those attorneys representing the government and the defendant to be sentenced get access to the report.

 Each judge should designate a group of those staff members, if any, who will have access to the ‘Final’ pre-sentence investigation report and associated attachments.

 As the Clerk’s office docketing staff will not generally have access to the documents, these docket entries will not be QCed.

FILING PROCEDURES

 The Draft Pre-Sentence Investigation Report is e-filed by Probation and includes instructions to attorneys to file objections or sentencing memoranda directly to the Probation Office and not e-filed in CM/ECF. Probation will monitor the deadline for objections as they currently do. Though it will appear on the docket activity report, the Judge and staff will not have access to view the draft report. Only the government and applicable defense attorneys, as determined by Probation, will have access.

 Objections to pre-sentence investigation report are to be filed by attorneys directly with the Probation Office and not e-filed in CM/ECF.

 Sentencing Memoranda shall continue to be delivered by attorneys directly to the judge. These will not be e-filed in CM/ECF.

 The Final (and any Revised Final) Pre-Sentence Investigation Report (including worksheet) is e-filed by Probation with the following attachments: (1) sentencing recommendation, (2) any addendum, and (3) any letters. The docket entry will appear on a docket activity report. The case manager or other designated chamber’s staff will notify the judge of the filing. Only Probation and those staff members designated by the judge will have access to view the final report AND its attachments. The government and applicable defense attorneys will have access to the report but not the attachments.

The Senate held confirmation hearings on June 8, 2011 for two of President Obama’s Louisiana nominees: Stephen Higginson, nominated on May 9, 2011 to the Fifth Circuit Court of Appeals, and Jane Margaret Triche-Milazzo, nominated on March 16, 2011 to the Eastern District of Louisiana. The Senate also held a confirmation hearing on May 4, 2011 for Nannette Jolivette-Brown, nominated on March 3, 2011 to the Eastern District of Louisiana. Her nomination was reported by the Committee to the Senate on May 26, 2011.

In a surprising decision, on May 31, 2011, the First Circuit upheld a district court’s decision to apply the FSA retroactively to a defendant who committed his offense before August 3, 2010, but was sentenced after that date. In United States v. Douglas, F.3d , 2011 WL 2120163 (C.A.1 (Me.)), the First Circuit looked to congressional intent and determined that Congress would not have ordered the Sentencing Commission to promulgate emergency guideline amendments to implement the FSA if it had not wanted the act to apply to defendants whose cases were still pending conviction or sentence after August 3, 2010. The First Circuit stated that “the imposition of a minimum sentence that Congress has condemned as too harsh makes this an unusual case. It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.”

The First Circuit’s Douglas decision creates a circuit split with the Seventh Circuit’s decision in United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). The Seventh Circuit found that the FSA did not apply retroactively to defendants who committed their offense before August 3, 2010, but were sentenced later. The Fifth Circuit has not addressed the issue of the whether it will allow retroactive application of the FSA to defendants who committed their crime before August 3, 2010, but were or still are awaiting sentence. We do not know whether the Fifth Circuit will follow the First or Seventh Circuit’s lead on this issue. Given the circuit split, it is likely that the Government will take a writ of certiorari to the Supreme Court on the Douglas decision.

With all the uncertainty at the circuit level, it is little wonder that the district courts are all over the place with trying to decide whether the FSA applies retroactively to pending cases with defendants who committed offenses before the FSA was enacted but had or have not yet been sentenced. Judge Ponsor’s ruling, in United States v. Watts, F.Supp.2d , 2011 WL 1282542 (D.Mass.) from the District of Massachusetts, is truly outstanding and should serve as a model for any defense motion requesting application of the FSA to a currently pending crack case. Given the huge success with the Douglas decision in the First Circuit and the resulting circuit split, defense counsel should definitely consider filing a motion for application of the FSA to any crack cases where the defendant committed the offense prior to August 3, 2010, but has not yet been convicted and/or sentenced.

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1Evans, Circuit Judge, United States v. Anthony Fisher, 635F.3d336 (7th Cir. 2011).

the press and public any notice or opportunity to be heard prior to closure

By way of background, the Houston Chronicle had moved to intervene in the criminal prosecution of a drug cartel leader, had requested that certain sealed documents be unsealed, and had also requested that the district court give notice and an opportunity to be heard before closing any future proceedings. The government then moved to close the sentencing hearing for reasons for public safety, and to not give notice to the public that the hearing was taking place. The court granted the government’s motion in a sealed order, and the court also sealed the government’s motion. The Houston Chronicle was able to find out when the sentencing hearing was scheduled and attempted to gain access to the courtroom with a handwritten motion. However, the court did not rule on that motion, denied access to the reporter and then denied the motion as moot after the closed sentencing proceeding had concluded.

In April 2011, the Commission promulgated amendments to the federal sentencing guidelines covering drug trafficking offenses, firearms offenses, and other federal offenses.

In particular, it adopted a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010, legislation that, among other things, reduced the statutory mandatory minimum penalties for crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack cocaine. The Act also contained directives to the Commission to review and amend the federal sentencing guidelines to account for certain aggravating and mitigating circumstances in drug trafficking cases to better account for offender culpability. In October 2010, the Commission promulgated an emergency, temporary amendment to implement an emergency directive in the Fair Sentencing Act of 2010.

The Commission voted to set the triggering quantities of crack cocaine for the 5- and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy, in which the Commission, based on available information, defined crack cocaine offenders who deal in quantities of one ounce (approximately 28 grams) or more in a single transaction as wholesalers. As a result of the Commission’s amendments, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

In other actions the Commission adopted amendments to:  increase penalties for certain firearms offenses. For example, the Commission voted to provide increased penalties for

certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.  implement the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203), and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). More information regarding these amendments, and other amendments, can be found on

the Commission’s website at www.ussc.gov.

The Commission submitted its 2010-2011 amendment package to Congress on April 28, 2011. Congress has 180 days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2011, unless Congress acts affirmatively to modify or disapprove them.