CLASH OF THE SOVEREIGNS THE INTERPLAY BETWEEN THE FEDERAL GOVERNMENT AND THE STATES WHEN BOTH ARE PROSECUTING YOUR CLIENT KANSAS CITY, MISSOURI SEPTEMBER 19, 2014 JACK SCHISLER ASSISTANT FEDERAL DEFENDER WESTERN DISTRICT OF ARKANSAS Today s topics... Primary Custody Concurrent vs. Consecutive Sentences Jail Time Credit Today s topics... Primary Custody Concurrent vs. Consecutive Sentences Jail Time Credit 1
Where s Waldo? It makes a big difference which sovereign has primary custody of your client. He s mine! No, he s mine! Is he with the Feds? Where s Waldo? Or is he with the State? Where s Waldo? 2
Primary Custody In Primary Custody of Feds if: Arrested first by the Feds Client is OR d, or makes State bond Sentenced to no custody by State In State custody pursuant to a writ Sentenced by State, but transport bond entered. In Primary Custody of State if: Arrested first by the State Can t bond out Gets a custody sentence In USMS custody pursuant to a writ No transport bond Problem with Transport Bond Option What if it doesn t work? U.S. v. Robert Fortier ~ Arrested 1 st by State ~ Transport bond issued ~ State appeal? Dismissed ~ Federal Habeas? U.S. v. Robert Fortier 3
U.S. v. Robert Fortier Federal sentence was 300 months (25 years) imposed in 2011. Appeal recently dismissed as moot by Arkansas Supreme Court. State sentence was 300 months for Rape. If there are no changes, the charges will stack automatically and Fortier will begin his federal sentence upon completion of the state sentence. The Transport Bond 4
The Transport Bond The State Appeal The State Appeal 5
Primary Custody Benefits of Being in the Primary Custody of the Federal Authorities Begin your federal sentence when it is imposed, and serve it in the BOP Depending on sentence lengths, may never see the inside of state prison Avoid automatic stacking that can occur when client is sentenced first by State while in the primary custody of the State Can leverage impending federal sentence to enhance State plea bargain Today s topics... Primary Custody Concurrent vs. Consecutive Sentences Jail Time Credit 18 U.S.C. 3584 3584. Multiple sentences of imprisonment (a) Imposition of Concurrent or Consecutive Terms.-If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently. 6
18 U.S.C. 3584 Huh? 18 U.S.C. 3584 If imposed at same time, concurrent. If the Court is silent on CC or CS: If imposed at different times, consecutive. However, court can order CC or CS in either instance, and must follow any statute that requires a consecutive sentence, such as 18 U.S.C. 924(c). The court can now also run a sentence CC or CS to any yet-to-be imposed sentence, pursuant to Setser v. U.S., 132 1463 (2012). Multiple terms of Supervised Release must run concurrently. 18 U.S.C. 3624(e). Concurrent vs. Consecutive Last Court to Sentence has Control Facts: Client X is sentenced in state court to ten years. State court orders sentence to run concurrently with yet to be imposed federal sentence. At federal sentencing, court orders federal sentence to run consecutively with state sentence. Result: A federal detainer is placed on X. His fed sentence will begin to run when state sentence ends. 7
Concurrent vs. Consecutive Facts: Federal court imposes ten year sentence. Court is aware of pending state case, but is silent on CC or CS as to this yet to be imposed sentence. Client is in primary custody of feds. Result: Fed sentence begins to run. Client goes to BOP. Whether State sentence will be CC or CS up to State, as it is sentencing last. Concurrent vs. Consecutive Facts: Federal court imposes ten year sentence. Court is aware of pending state case, but is silent on CC or CS as to this yet to be imposed sentence. Client is in federal custody pursuant to writ (client is borrowed from state). Result: Client is returned to state. Federal detainer is placed on client. Fed sentence will run CS to state sentence unless...???? Concurrent vs. Consecutive Unless... State dismisses or nol prosses Client is OR d or makes bond pre-sentencing At which time federal detainer will kick in, causing the BOP to take custody State gives a no-custody sentence Transport bond is ordered on state case postsentencing At which time federal detainer should kick in, causing the BOP to take custody but as you saw this is dicey 8
Today s topics... Primary Custody Concurrent vs. Consecutive Sentences Jail Time Credit When is getting credit for time served not a good thing? Statutory Authority: Prior custody time credit per 18 U.S.C. 3585(b): "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences- (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence." When is getting credit for time served not a good thing?... that has not been credited against another sentence. 9
When is getting credit for time served not a good thing? Say your client, Waldo, has been languishing in the JCJ for 180 days. His federal case finally wraps up. He gets a lengthy federal sentence. You wangle a sentence of probation, or a completely suspended sentence. If your state court judgment gives him credit for the 180 days, the BOP won t give him credit for it against his federal sentence. So it turns out to be dead time. Waldo does not look happy! When is getting credit for time served not a good thing? So, if your client is looking at a state sentence to be run CC with a federal sentence, ask that jail credit not be included in the state judgment. When is getting credit for time served not a good thing? Official Detention [U]nder the language of the Bail Reform Act of 1984, a defendant suffers detention only when committed to the custody of the Attorney General; a defendant admitted to bail on restrictive conditions, as respondent was, is released. Reno v. Koray, 515 U.S. 50, 57, 115 S. Ct. 2021, 2025, 132 L. Ed. 2d 46 (1995) So, home detention does not count as official detention. 10
And if Time Permits... (and apparently it does) Presentence Investigation Reports & The Bureau of Prisons 11
The Presentence Report is treated as gospel by the BOP. If it s not in the PSI, it didn t happen, even if it did. Client really was heavy drug user up to arrest... If it s in the PSI, it did happen, even if it didn t. Client really didn t rape someone, despite allegations... When objecting to material in the PSI, ask that the offending material be removed from the report. Rule 32(j) of the Federal Rules of Criminal Procedure: (3) Court Determinations. At sentencing, the court: (A) may accept any undisputed portion of the presentence report as a finding of fact; (B) must for any disputed portion of the presentence report or other controverted matter rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and (C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons. Rule 32(j) of the Federal Rules of Criminal Procedure: (3) Court Determinations. At sentencing, the court: (A) may accept any undisputed portion of the presentence report as a finding of fact; (B) must for any disputed portion of the presentence report or other controverted matter rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and (C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons. 12
Rule 32(j)(3) (B) must for any disputed portion of the presentence report or other controverted matter rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; Objection One 27: Mr. Defendant denies raping Ms. X. Court rules: Objection# 1: The Court noted the objection but determined that a ruling was not necessary, as it has no impact to the guideline range or sentencing. The Result Since allegation of rape remained in the report, the BOP presumed it must be true, denied full halfway house placement, and tried to get the defendant to sign an admission he was a sex offender! 13
The Takeaway Request REMOVAL of the offending material up front, preserving issue for appeal. Attempts to correct PSI errors rejected by Eighth Circuit. U.S. v. Moore, 56 Fed. Appx.299 (8th Cir. 2003)(district court loses jurisdiction); U.S. v. Yakke, 463 F.3d 810 (8th Cir. 2006)(not clerical error under Rule 36). Questions? A question is like a worm in an apple Questions? Nobody likes to get one. * *Not an actual Mark Twain quote. 14
CLASH OF THE SOVEREIGNS THE INTERPLAY BETWEEN THE FEDERAL GOVERNMENT AND THE STATES WHEN BOTH ARE PROSECUTING YOUR CLIENT KANSAS CITY, MISSOURI SEPTEMBER 19, 2014 JACK SCHISLER ASSISTANT FEDERAL DEFENDER WESTERN DISTRICT OF ARKANSAS 15