WINNING STRATEGIES SEMINAR II

Transcription

1 WINNING STRATEGIES SEMINAR II ADMINISTRATIVE OFFICE OF THE U.S. COURTS DEFENDER SERVICES OFFICE TRAINING DIVISION Baltimore Marriott Inner Harbor at Camden Yards 110 South Eutaw Street, Baltimore, MD JUNE 6-8, 2019 DRAFT AGENDA (4/10/2019) Thursday, June 6, :30 to 8:30 a.m. Registration & Continental Breakfast 8:30 to 8:45 a.m. Introduction & Welcoming Remarks TBD, Representative, Office of the Federal Public Defender for the District of Maryland, Baltimore, MD Teresa Whalen, CJA Panel Representative, District of Maryland, Silver Spring, MD George Couture, Attorney Advisor, Defender Services Office Training Division, Washington, DC 8:45 to 9:45 a.m. Plenary: Overview of the First Step Act Brianna Mircheff, Assistant Federal Public Defender, Office of the Federal Public Defender for the Central District of California, Los Angeles, CA The session will give you an overview of the First Step Act, signed into law on December 21, The Act significantly impacts mandatory minimum sentencing for certain offenses, among other things. It limits the type of prior drug convictions that qualify as Sec. 851 predicates, and adds to the list of qualifying predicates, some prior violent felony convictions. The Act also makes changes to 18 U.S.C. Sec. 924(c) to eliminate the 25-year consecutive provision unless the defendant has a final prior Sec. 924(c) conviction. In addition, the Act expands the availability of safety-valve (e.g., expand the eligibility for safety valve; permits defendants sentenced before the Fair Sentencing Act to petition for their sentences to be re-evaluated and reduced; changes good time credits, adds new "earned" time credits,

2 Winning Strategies Seminar II Page 2 of 14 9:45 to 9:55 a.m. Break and expands the availability of compassionate release by permitting prisoners, for the first time ever, to file motions for compassionate release. 9:55 to 10:55 a.m. Plenary: Sentencing Reform Success Under the First Step Act Liliana Cornoda, Vice President and Counsel, The Brimley Group, Los Angeles, CA 10:55 to 11:05 a.m. Break Mass incarceration has plagued many prisoners and their families. For decades, the crack-to-powder sentencing disparity resulted in unfair and unwarranted sentencing disparity. Although modest in many respects, the First Step Act is bringing hope and reduced sentences to many prisoners. This session presents the successful release of one prisoner under the First Step Act. 11:05 a.m. to Breakout Sessions 12:05 p.m. 1. Practical Tips If Your Client Faces Incarceration in a Federal Prison David Merchant, Assistant Federal Defender, Federal Defenders of Montana, Billings, MT This session will provide practical tips if your client faces federal imprisonment. It will include factors to consider for your client to obtain a federal sentence at the least restrictive possible facility and receive the earliest feasible release date. 2. Battling 851 Notices: Avoid Mandatory Minimums Sentences of 10 Years, 20 Years, or Life! Jim Skuthan, First Assistant Federal Public Defender, Office of the Federal Public Defender for the Middle District of Florida, Orlando, FL Section 851 notices can either double your client s mandatory minimum or subject them to mandatory LIFE! There are fewer things scarier in a mandatory minimum drug case than getting one, two, or more 851 notices. Know how to battle back and help your client avoid unwarranted and horrific mandatory sentences. Just because the government files a 851 notice doesn t mean you have to grin and bear it. Learn how to fight back!

3 Winning Strategies Seminar II Page 3 of Strategies for Dealing With Jury Deliberation Issues Brianna Mircheff, Assistant Federal Public Defender, Office of the Federal Public Defender for the Central District of California, Los Angeles, CA After a jury has heard evidence from the government and defense and has been instructed on the law, the jury takes on the awesome responsibility of deliberating the fate of the accused. This session will examine myriad common problems that arise in jury deliberations e.g., jury notes, deadlocked jury, excused juror, consideration of extraneous matter and effective strategies for turning these problems into opportunities to advance the client s case. 4. Common Sentencing Practice Questions and Errors Ebise Bayisa, Senior Attorney in the Office Education and Sentencing Practice, United States Sentencing Commission, Washington, DC 12:05 to 1:30 p.m. Lunch Although Booker made the guidelines advisory, they remain important. District courts must begin their sentencing analysis with the Guidelines and use them to calculate the sentencing range correctly, and those Guidelines will anchor both the sentencing court s discretion and the appellate review process. This session will discuss common sentencing practice questions and errors and will provide practical tips. 1:30 to 2:30 p.m. Break-Out Sessions 1. Practical Tips If Your Client Faces Incarceration in a Federal Prison David Merchant, Assistant Federal Defender, Federal Defenders of Montana, Billings, MT This session will provide practical tips if your client faces federal imprisonment. It will include factors to consider for your client to obtain a federal sentence at the least restrictive possible facility and receive the earliest feasible release date. 2. Battling 851 Notices: Avoid Mandatory Minimums Sentences of 10 Years, 20 Years, or Life! Jim Skuthan, First Assistant Federal Public Defender, Office of the Federal Public Defender for the Middle District of Florida, Orlando, FL Section 851 notices can either double your client s mandatory minimum or subject them to mandatory LIFE! There are fewer things scarier in a mandatory minimum drug case than getting one, two, or more 851 notices. Know how to battle back and help your client avoid unwarranted and

4 Winning Strategies Seminar II Page 4 of 14 horrific mandatory sentences. Just because the government files a 851 notice doesn t mean you have to grin and bear it. Learn how to fight back! 3. Strategies for Dealing With Jury Deliberation Issues Brianna Mircheff, Assistant Federal Public Defender, Office of the Federal Public Defender for the Central District of California, Los Angeles, CA After a jury has heard evidence from the government and defense and has been instructed on the law, the jury takes on the awesome responsibility of deliberating the fate of the accused. This session will examine myriad common problems that arise in jury deliberations e.g., jury notes, deadlocked jury, excused juror, consideration of extraneous matter and effective strategies for turning these problems into opportunities to advance the client s case. 4. Common Sentencing Practice Questions and Errors Ebise Bayisa, Senior Attorney in the Office Education and Sentencing Practice, United States Sentencing Commission, Washington, DC 2:30 to 2:45 p.m. Break Although Booker made the guidelines advisory, they remain important. District courts must begin their sentencing analysis with the Guidelines and use them to calculate the sentencing range correctly, and those Guidelines will anchor both the sentencing court s discretion and the appellate review process. This session will discuss common sentencing practice questions and errors and will provide practical tips. 2:45 to 3:45 p.m. Break-Out Sessions 1. Discovery Management and Review Strategies in the Electronic Age Tim Watkins, Director s Leadership Program Resident, Administrative Office of the U.S. Courts, Washington, DC Thanks to the computer revolution, the legal system has moved from a paper world to one where the vast majority of information is created, transmitted and stored electronically. In addition to the explosion of documents in electronic format, even a simple single defendant prosecution may feature hours of audio and video, your client s several cellphones, and other detritus culled from the internet of things. This session will use the Joint Working Group on Electronic Discovery s ESI Protocol as a framework to discuss strategies for organizing and effectively

5 Winning Strategies Seminar II Page 5 of 14 reviewing the increasingly complex discovery productions that are becoming the new normal in federal criminal defense. 2. Opportunities for Early Release: Changes to Good Time and New Earned Time Credit Joan Politeo, Attorney Advisor, Defender Services Office Training Division, Washington, DC The Bureau of Prisons (BOP) has systematically dismantled reentry programs mandated by law and policy. The First Step Act (1) lays to rest the multi-decade long defiance by BOP to deny 54 days of good time credit to those serving a prison sentence; and (2) provides programs, education, and skills designed to help those incarcerated successfully re-enter their communities. Sections 101 to 107 detail earned time credit programs of 10 to 15 days per month (depending on classifications determined by risk assessments) for those successfully participating in evidence-based recidivism reduction programs. Earned time credits will be redeemable toward early release to a half-way house or home-confinement. While there are close to 70 offenses that will render some ineligible or excludable from redeeming earned time credits for pre-release from prison, advocacy strategies discussed in this presentation will help ensure that your client is able to receive the full benefits of the First Step Act. 3. Challenging Drug Predicates Kara Hartzler, Assistant Federal Defender, Federal Defenders of San Diego, Inc., San Diego, CA Does it seem like nothing is a crime of violence but everything is a controlled substance offense? In this session, we will share legal challenges to the characterization of offenses as controlled substance offenses (Guidelines), felony drug offenses (851), and serious drug offenses (ACCA). More ways to save your client years, even decades, in prison. 4. Fingerprints Robert Epstein, Assistant Federal Defender, Community Defender for the Eastern District of Pennsylvania, Philadelphia, PA 3:45 to 4:00 p.m. Break In real life, and according to many experts, fingerprints are the lesser cousin of a lie detector and shouldn t be anywhere near a courtroom. Learn what makes this evidence junk, learn how the National Academy of Sciences attacks fingerprint science, and arm yourself with the tools for addressing, attacking and presenting this otherwise deadly evidence.

6 Winning Strategies Seminar II Page 6 of 14 4:00 to 5:00 p.m. Plenary: Can You Hear Me Now? Cell Phones and the Fourth Amendment Meghan Skelton, Managing Defense Counsel, Team Nashwan, Military Commissions Defense Organization, Arlington, VA 5:00 p.m. Adjournment Courts are recognizing more privacy rights regarding cell phones. Fortyyear old Fourth Amendment doctrines that had eroded privacy seem to be teetering on the edge of collapse. But the modern surveillance state is still trying to learn every last detail about our clients, and us, from our cell phones and how we use them.

7 Winning Strategies Seminar II Page 7 of 14 Friday, June 7, :30 to 8:30 a.m. Registration & Continental Breakfast 8:30 to 9:30 a.m. Plenary: The Categorical Approach as Applied to Violent Felonies, Crimes of Violence, Controlled Substance Offenses, and Serious Drug Offenses Jayme Feldman, Sentencing Resource Counsel Project, Federal Public and Community Defenders, Washington, DC 9:30 to 9:40 a.m. Break This session will present a step-by-step process on how to conduct a categorical/modified categorical analysis under the elements-based framework of Descamps v. United States and Mathis v. United States. Attendees will leave this session with a greater comfort in employing the categorical approach, will be able to identify common missteps and opportunities for advocacy, and will perhaps even leave with some fondness for the framework so many have grown to hate. 9:40 to 10:40 a.m. Plenary: Supreme Court Update Paul Rashkind, Supervisory Assistant Federal Public Defender and Chief of the Appellate Division of the Federal Public Defender for the Southern District of Florida, Miami, Florida 10:40 to 10:50 a.m. Break This session provides an update on recent Supreme Court decisions affecting federal criminal practice, and reviews issues currently under consideration. 10:50 to 11:50 a.m. Break-Out Sessions 1. Discovery Management and Review Strategies in the Electronic Age Tim Watkins, Director s Leadership Program Resident, Administrative Office of the U.S. Courts, Washington, DC Thanks to the computer revolution, the legal system has moved from a paper world to one where the vast majority of information is created, transmitted and stored electronically. In addition to the explosion of documents in electronic format, even a simple single defendant prosecution may feature hours of audio and video, your client s several cellphones, and other detritus culled from the internet of things. This session will use the Joint Working Group on Electronic Discovery s ESI Protocol as a framework to discuss strategies for organizing and effectively

8 Winning Strategies Seminar II Page 8 of 14 reviewing the increasingly complex discovery productions that are becoming the new normal in federal criminal defense. 2. Opportunities for Early Release: Changes to Good Time and New Earned Time Credit Joan Politeo, Attorney Advisor, Defender Services Office Training Division, Washington, DC The Bureau of Prisons (BOP) has systematically dismantled reentry programs mandated by law and policy. The First Step Act (1) lays to rest the multi-decade long defiance by BOP to deny 54 days of good time credit to those serving a prison sentence; and (2) provides programs, education, and skills designed to help those incarcerated successfully re-enter their communities. Sections 101 to 107, detail earned time credit programs of 10 to 15 days per month (depending on classifications determined by risk assessments) for those successfully participating in evidence-based recidivism reduction programs. Earned time credits will be redeemable toward early release to a half-way house or home-confinement. While there are close to 70 offenses which will render some ineligible or excludable from redeeming earned time credits for pre-release from prison, there are advocacy strategies which will be discussed in this presentation to ensure that your client is able to receive the full benefits of the First Step Act. 3. Challenging Drug Predicates Kara Hartzler, Assistant Federal Defender, Federal Defenders of San Diego, Inc., San Diego, CA Does it seem like nothing is a crime of violence but everything is a controlled substance offense? In this session, we will share legal challenges to the characterization of offenses as controlled substance offenses (Guidelines), felony drug offenses (851), and serious drug offenses (ACCA). More ways to save your client years, even decades, in prison. 4. Fingerprints Robert Epstein, Assistant Federal Defender, Community Defender for the Eastern District of Pennsylvania, Philadelphia, PA 11:50 a.m. Lunch to 1:00 p.m. In real life, and according to many experts, fingerprints are the lesser cousin of a lie detector and shouldn t be anywhere near a courtroom. Learn what makes this evidence junk, learn how the National Academy of Sciences attacks fingerprint science, and arm yourself with the tools for addressing, attacking and presenting this otherwise deadly evidence.

9 Winning Strategies Seminar II Page 9 of 14 1:00 to 2:00 p.m. The Disparate Impacts of Police Face Recognition Clare Garvie, Senior Associate, Center on Privacy & Technology, Georgetown University Law Center, Washington, DC 2:00 to 2:10 p.m. Break Face recognition technology has become a routine police investigative tool, accessible to over a quarter of all agencies across the United States. Research shows that the accuracy of this tool differs depending on the race, gender, and age of the subject being searched for. These disparate accuracy rates mean that communities of color, who are both disproportionally the target of new police technologies and disproportionally enrolled in face recognition databases, may be more likely to bear the burden of face recognition misidentifications as well. 2:10 to 3:10 p.m. Break-Out Sessions 1. Rules of Evidence 404 and 405: How To Use Them And Not Be Abused By Them James Smith III, Attorney, CPLS, P.A., Orlando, FL We spend so much of our time and effort trying to exclude evidence that we tend to forget many evidentiary rules that allow us to tell our client's side of the story. This presentation will explore how criminal defense attorneys can use the evidentiary rules to admit favorable evidence at trial. 2. Crimes of Violence & Violent Felonies: Challenges to be Made During a Time of Conflict, Chaos, & Confusion Craig Crawford, Attorney Advisor, Defender Services Offices Training Division, Washington, DC Does it seem like nothing should qualify as a crime of violence or violent felony? You would be right. In this session, we will apply the principles discussed in the categorical approach primer to the characterization of offenses as crimes of violence or violent felonies, saving your client years in prison. 3. The Preparation and Trial of a Federal Child Pornography Offense Jason Ser, Assistant Federal Defender, Office of the Federal Defender for the Southern District of New York, White Plains, NY This session will suggest various pretrial measures for attorneys to take when faced with the prospect of going to trial. The presentation will also discuss evaluation of the strengths and weaknesses of the forensic evidence in the case and the approaches for handling the cross-examination of the Government s forensic expert.

10 Winning Strategies Seminar II Page 10 of Understanding Immigration Consequences of Federal Convictions Ubong Akpan, Attorney Advisor, Defender Services Offices Training Division, Washington, DC Noncitizen clients are facing more and more criminal prosecutions with the harsh consequences of serving federal time and being deported from the United States. Knowing whether your client s conviction will be a crime involving moral turpitude versus an aggravated felony may make the difference between remaining in the U.S. with their family and being deported. In this session, participants will learn about the major deportable and inadmissible crimes, (i.e., aggravated felonies, crimes involving moral turpitude, domestic offenses, drug offenses, and firearms), in order to avoid the deportation pitfalls for their clients. 5. Winning the Presentence Investigation Julie Stelzig, Assistant Federal Defender, Office of the Federal Public Defender for the District of Maryland, Greenbelt, MD 3:10 to 3:20 p.m. Break After a defendant has been convicted of committing a federal offense, the United States Probation Office will conduct a presentence investigation and produce a presentence report (PSR) to assist the Court in determining a defendant s sentence. The presentence investigation is critical to the sentencing process because courts tend to rely heavily on the results of the investigation reported in the PSR. The report will not only be relevant to the Court s imposition of sentencing, but it will be sent to the Federal Bureau of Prisons where it can affect institutional placement, conditions of confinement, and eligibility for prisons programs, such as earned time credits. This presentation will address strategies and practical tips for advocating for the client s best sentencing outcome in the presentence investigation. 3:20 to 4:20 p.m. Break-Out Sessions 1. Rules of Evidence 404 and 405: How To Use Them And Not Be Abused By Them James Smith III, Attorney, CPLS, P.A., Orlando, FL We spend so much of our time and effort trying to exclude evidence that we tend to forget many evidentiary rules that allow us to tell our client's side of the story. This presentation will explore how criminal defense attorneys can use the evidentiary rules to admit favorable evidence at trial.

11 Winning Strategies Seminar II Page 11 of Crimes of Violence & Violent Felonies: Challenges to be Made During a Time of Conflict, Chaos, & Confusion Craig Crawford, Attorney Advisor, Defender Services Offices Training Division, Washington, DC Does it seem like nothing should qualify as a crime of violence or violent felony? You would be right. In this session, we will apply the principles discussed in the categorical approach primer to the characterization of offenses as crimes of violence or violent felonies, saving your client years in prison. 3. The Preparation and Trial of a Federal Child Pornography Offense Jason Ser, Assistant Federal Defender, Office of the Federal Defender for the Southern District of New York, White Plains, NY This session will suggest various pretrial measures for attorneys to take when faced with the prospect of going to trial. The presentation will also discuss evaluation of the strengths and weaknesses of the forensic evidence in the case and the approaches for handling the cross-examination of the Government s forensic expert. 4. Understanding Immigration Consequences of Federal Convictions Ubong Akpan, Attorney Advisor, Defender Services Offices Training Division, Washington, DC Noncitizen clients are facing more and more criminal prosecutions with the harsh consequences of serving federal time and being deported from the United States. Knowing whether your client s conviction will be a crime involving moral turpitude versus an aggravated felony may make the difference between remaining in the U.S. with their family and being deported. In this session, participants will learn about the major deportable and inadmissible crimes, (i.e. aggravated felonies, crimes involving moral turpitude, domestic offenses, drug offenses, and firearms), in order to avoid the deportation pitfalls for their clients. 5. Winning the Presentence Investigation Julie Stelzig, Assistant Federal Defender, Office of the Federal Public Defender for the District of Maryland, Greenbelt, MD After a defendant has been convicted of committing a federal offense, the United States Probation Office will conduct a presentence investigation and produce a presentence report (PSR) to assist the Court in determining a defendant s sentence. The presentence investigation is critical to the sentencing process because courts tend to rely heavily on the results of the investigation reported in the PSR. The report will not only be relevant to the Court s imposition of sentencing, but it will be sent to the Federal Bureau of

12 Winning Strategies Seminar II Page 12 of 14 4:20 to 4:30 p.m. Break Prisons where it can affect institutional placement, conditions of confinement, and eligibility for prisons programs, such as earned time credits. This presentation will address strategies and practical tips for advocating for the client s best sentencing outcome in the presentence investigation. 4:30 to 5:30 p.m. Plenary: Loss Calculations in Fraud and White-Collar Cases Kevin Tate, Senior Litigator, Western District of North Carolina, Charlotte, NC 5:30 p.m. Adjournment Few sentencing issues can me more complex than getting to the bottom of what your client needs to own up to when loss comes to town. Loss drives the Guidelines and can chain your client to restitution for decades to come. Learn the tricks, pitfalls and danger zones when battling Probation, United States Attorneys and the Court s calculations.

13 Winning Strategies Seminar II Page 13 of 14 Saturday, June 8, :30 to 8:30 a.m. Registration & Continental Breakfast 8:30 to 9:30 a.m. Plenary: Resources for CJA Panel Attorneys Sharon Samek, Attorney Advisor, Defender Services Office Legal & Policy Division, Washington, DC 9:30 to 9:40 a.m. Break The CJA Guidelines specify how panel attorneys obtain funding for expert services and other resources to defend their clients in appointed criminal cases. This panel will help you make sense of it all. Learn some new ideas and tips on how to obtain technical and litigation support funding and the best ways to use those funds. The panel will also explore potential roles of investigators, mitigation specialists and other experts, as well as resource available through and the Defender Services Office Training Division. Questions welcomed. 9:40 to 10:40 a.m. Plenary: Thread of Mitigation: Critical Roles of Team Members To Tell the Client s Mitigation Story Lori James-Townes, LCSW-C, President and CEO of Expand-Now, Baltimore, MD 10:40 to 10:45 a.m. Break From the precise moment our office is appointed to represent a client facing the single most stressful life event federal criminal charges we must gear up as a team to develop the mitigation story. Successful team work requires that we each understand the essential role we play as investigators, paralegals, mitigation specialists, interpreters, and receptionists. Awareness of the critical roles each member of the team plays will ensure that there are no frayed threads in the mitigation story. This session will address the challenges and paths toward success as a team. 10:45 to 11:45 a.m. Plenary: Ethical Issues Confronting Criminal Defense Attorneys Kevin Tate, Senior Litigator, Western District of North Carolina, Charlotte, NC A discussion of some of the recurring ethical issues faced by criminal defense attorneys, and tips on how to handle these issues while continuing to provide a zealous defense. 11:45 a.m. to noon Closing Remarks

14 Winning Strategies Seminar II Page 14 of 14 George Couture, Attorney Advisor, Defender Services Office Training Division, Washington, DC