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Short Wins – Attorney General Holder Wants Fewer People In Prison And We Add Attorney Names

It’s been a busy week in the circuits. But first, two news items.

Eric Holder Walks Back The War On Drugs

Today, as has been widely reported, Eric Holder will announce that “widespread incarceration at the federal, state and local levels is both ineffective and unsustainable.” Here’s coverage at the Wall Street Journal.

This is good news, though, of course, it could have been better news. We have the highest incarceration rate in the world. We’re spending way too much money to destroy families and communities for no good law enforcement reason. I can’t help but wonder how many pointless years of prison time were imposed while Holder lead the Department of Justice before he made these changes.

It looks like Holder’s proposals are (1) aimed at trimming a little bit of the horribleness of the war on drugs and (2) making it easier for folks to get released from prison early in some limited circumstances.

The devil, as always, will be in the details. We’ll see. And, of course, this does nothing for the other areas of the law — like fraud and child pornography possession — where the sentences are also unconscionably high.

Attorney Names

In other news, we’re adding a new part of Short Wins today. In the past, we’ve just published a short description of the case, and longer write-ups have come out during the week.

Today, in response to emails from some readers, we’ll start to add the name of the lawyer who argued the case.

This has two goals. First, it will congratulate our fellow members of the bar who should be congratulated. Second, my friends in federal public defender offices have asked what percentage of wins are from the FPD community. I don’t keep track, but this will make that a little easier to see.

Sadly, some circuits don’t list the attorney who argued a case in the opinion. For the lawyers who won cases in those circuits, I’m sorry to say we won’t be digging through Pacer to find your names.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Fries, Eleventh Circuit: Appellant was convicted of transferring a firearm to an out-of-state residence when neither he nor the buyer was a licensed firearms dealer. Because the evidence at trial did not prove that appellant sold a weapon to a person who wasn’t a licensed firearms dealer – an essential element of the offense – appellant’s conviction was reversed with instructions for the trial court to enter a judgment of acquittal.

2. United States v. Hughes, Fifth Circuit: Appellant was charged with one count of conspiring to distribute crack and four counts of using a phone to facilitate the commission of a drug crime. At his plea hearing, the government informed the court that, in exchange for appellant’s guilty plea to the drug conspiracy count, the government would move to dismiss the remaining charges at sentencing. Appellant pled guilty to all five counts. Although the government reminded the district court of the agreement to drop four of the five counts, the court sentenced appellant on all five counts. The court abused its discretion in sentencing appellant on all five counts because it provided no reasoning justifying its refusal to dismiss the four counts, and because the government did not argue that dismissing the counts would have been “clearly contrary to manifest public interest.”

3. United States v. Lee, Ninth Circuit: Appellant pled guilty to conspiring to distribute methamphetamine and a forfeiture count. For three years after her guilty plea, appellant substantially assisted the government’s investigation and prosecution of a drug network in which she had been involved. She was then sentenced to 96 months in prison. Her sentence was vacated and remanded for resentencing because of three errors: the district court (1) failed to use the Guidelines as a starting point; (2) incorrectly calculated the Guidelines range; and (3) failed to determine a revised minimum sentence under 18 U.S.C. § 3553(e), as it was required to in considering appellant’s substantial assistance.

Mark Eibert, Half Moon Bay, California, for Defendant-Appellant.

4. United States v. Nelson, Sixth Circuit: Appellant was convicted of being a felon in possession of a firearm and ammunition. At trial, the court admitted testimony from police regarding an anonymous 911 caller’s description of appellant, which was hearsay evidence admitted to prove that appellant possessed a gun. The evidence shouldn’t have been admitted because it went directly to the key issue for jury resolution, wasn’t necessary for the government to provide the jury with a coherent narrative, and was too prejudicial for the harm to be cured without a limiting instruction. The error wasn’t harmless because it was more probable than not that it had a material impact on the verdict. For these reasons, the judgment was vacated and the case remanded for a new trial.

Erik R. Herbert, Nashville, Tennessee, for Appellant.

5. United States v. Thomas, Ninth Circuit: Marijuana was found in a toolbox in appellant’s car as a result of a search conducted by a drug dog and the dog’s handler. Appellant was subsequently indicted for possessing marijuana with intent to distribute and, more than a year later, with conspiring to possess with intent to distribute marijuana. Appellant filed a motion to suppress the marijuana, which was denied. This was error, which was not harmless, as the government failed to disclose adequate evidence of the drug dog’s and his handler’s proficiency and experience to justify the search that led to the drugs.

Brian I. Rademacher, Assistant Federal Public Defender, District of Arizona, Tucson, Arizona, argued the cause and filed the briefs for the appellant.

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