Fall 2015 CLE Materials - Federal Public Defender - Northern ...

JOHNSON V. UNITED STATES

135 S.CT. 2551 (2015)

James P. Egan, Esq., FPD - NDNY

CONTEXT

Whether an offense (usually a prior conviction) falls within a certain category

CONTEXT

In most instances, whether an offense is of a certain type will matter for purposes of sentencing

OVERVIEWI. Pre-Johnson

II. Summary of Johnson

III. Implications:

A Armed Career Criminal Act

B. Career Offender

C. U.S.S.G. §§ 2K2.1, 7B1.1

D. 18 U.S.C. § 16(b)

E. 18 U.S.C. § 924(c)

CONCEPTS

■ categorical + modified categorical approach

■ divisible v. indivisible offenses

■ generic offenses

CATEGORICAL APPROACH

Forget what you think you know about the underlying conduct


Courts look only to the fact that the defendant has been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.

Taylor v. United States, 495 U.S. 575, 600 (1990)


A court assesses whether a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”

Begay v. United States, 553 U.S. 137, 141 (2008)


Are the statute’s elements the same as or narrower than the elements of the generic federal offense?


“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.”

Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010))


Put alternatively

If “most innocent conduct” or “full range of conduct” covered by the statute does not match these definitions, prior cannot qualify as “violent felony.”

United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).

CATEGORICAL APPROACHCaveat

“[F]ocus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’”

Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007))

MODIFIED CATEGORICAL APPROACH

“[H]elps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction.”

Descamps v. United States, 133 S.Ct. 2276, 2283 (2013)


■ Only applies when statute is divisible

■ If statute is indivisible, only apply categorical approach

■ Modified Categorical Approach is a form of the categorical approach.


■ Elements v. Means

■ Does not depend on phrasing of the statute

■ Analyze state law


“Imagine a statute that criminalizes assault with ‘a gun or an axe.’ A federal law imposes penalties only for defendants previously convicted of ‘gun offenses.’ If state law makes clear that a defendant can be found guilty only if all twelve jurors agree that the defendant used a gun or if all twelve jurors agree the defendant used an axe, the statute has alternative elements and is divisible. The court may then apply the modified categorical approach to determine whether the defendant was accused and convicted of using a gun or an axe. If, however, the defendant can be convicted with six jurors believing the defendant used a gun and six jurors believing the defendant used an axe, the statute lists alternative means and is indivisible.”

Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. Aug. 17, 2015)


If statute is divisible, the modified categorical approach permits a court to review certain documents and records to determine which offense the defendant was convicted of.

Shepard v. United States, 125 S.Ct. 1254 (2004)


Shepard documents

■ Charging documents■ Jury instructions■ Formal rulings at bench trial■ Written plea agreement■ Plea colloquy■ “Explicit factual findings by the trial judge to which the defendant

assented.”

ACCA

Armed Career Criminal Act, 18 U.S.C. § 924(e)

Triggers 15-year MM when a defendant has three prior convictions for a “violent felony” or “serious drug offense”

VIOLENT FELONY

three ways

Force Clause: Offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Enumerated Offenses Clause: Burglary, Arson, Extortion, or Use of Explosives

Residual Clause: Offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

RESIDUAL CLAUSE

Four Supreme Court decisions

James, attempted burglary, YES

Sykes, attempt to elude, YES

Begay, DUI, NO

Chambers, escape by failing to report, NO

BEFORE JOHNSON

Prior offense categorically fall within residual clause when the elements of the offense in the ordinary case:

1. Present risk of injury at similar level to enumerated offenses (generic burglary, arson, extortion, use of explosives), AND

2. Require purposeful, violent, and aggressive conduct.

JOHNSON

Residual Clause is Void for Vagueness

■ DENIES FAIR NOTICE TO DEFENDANTS

■ INVITES ARBITARY ENFORCEMENT

Uncertainty of ordinary case inquiry

■ How do you estimate risk when no one knows the ordinary case of a crime? Is it gut instinct, common sense, statistics, google search?

■ How do you determine quantum of risk? The enumerated offenses are not sufficient guide.

Johnson kills precedent

■ James

■ Sykes

IMPLICATIONS

What’s left of the ACCA?

1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or

2. Enumerated offenses: burglary, arson, extortion, use of explosives (determined by generic definition).

FORCE CLAUSE

VERY FEW OFFENSES FALL WITHIN THE FORCE CLAUSE

FORCE CLAUSE

Four key issues:

1. Requires “violent force,” not “unwanted touching”2. Force must be directed against a person, not property3. Requires the use of force, not merely the causation of physical

injury.4. Force must be intentional, not reckless or negligent

FORCE CLAUSE

Pointer

Many of the best force clause cases have been litigated under U.S.S.G. 2L1.2.

FORCE CLAUSE

Force = Violent Force

FORCE CLAUSE

“Violent Force” means “strong physical force” that is “capable of causing physical injury or pain” to another person. Johnson v. United States, 559 U.S. 133 (2010)

FORCE CLAUSEExamples of “Unwanted touching” or “offensive touching”:

■ Assault or Battery– Johnson, 559 U.S. 133 (Florida); United States v. Holloway, 630 F.3d 252 (1st Cir.

2011) (Massachusetts); United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (Maryland).

■ Resisting arrest– United States v. Aparico-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc) (Maryland);

United States v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (Arizona); United States v. Almenas, 553 F.3d 27 (1st Cir. 2009) (Massachusetts).

■ Battery on a law enforcement officer; Battery on pregnant woman.– United States v. Carthorne, 726 F.3d 503 )(4th Cir. 2013) (Virginia); United States v.

Braun, __ F.3d __, 2015 WL 5201729 (11th Cir. 2015) (Florida)

FORCE CLAUSE

Don’t be deceived by labels: Sometimes offense will have element labeled “force or violence,” but that does not mean it has element of ACCA “violent force.”

FORCE CLAUSE

Examples:

■ California battery. Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) (“force or violence” defined by case law to include “offensive touching”).

■ D.C. robbery. United States v. In re Sealed, 548 F.3d 1085 (D.C. 2008) (“force or violence” defined by statute to include purse-snatching offenses: “sudden or stealthy seizure or snatching”)– Note: same argument excludes similar offenses, such as “larceny

from the person” or “pickpocketing”

FORCE CLAUSEKidnapping / False Imprisonment: “physical restraint” does not automatically equal “physical force”

■ Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th 2012) (California kidnapping does not satisfy force clause because restraint can be accomplished through “any means of instilling fear”)

■ United States v. Gonzalez-Perez, 472 F.3d 1158 (11th Cir. 2012) (Florida false imprisonment does not satisfy force clause because restraint can be accomplished “secretly”)

■ United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (Model Penal Code definition of kidnapping does not require force because it covers kidnapping by trickery or deceit)

FORCE CLAUSEOffenses based on absence of legally valid consent do not qualify under the force clause.

– Statutory Rape ■ United States v. Rangel-Castaneda, 709 F.3d 373 (4th Cir. 2013)

(Tennessee aggravated statutory rape); United States v. Daye, 571 F.3d 225 (2d Cir. 2009) (Vermont statutory rape)

– Involuntary or Incompetent Consent ■ United States v. Shell, 789 F.3d 335 (4th Cir. 2015) (North Carolina

second-degree rape of victim who is “mentally disabled, mentally incapacitated, or physically helpless”)

If “force” is an element, look for state case law extending the provision to “constructive force” situations.

FORCE CLAUSEProperty v. Person

Force, even violent, against property does not qualify under ACCA force clause.

Examples: Hobbs Act robbery includes threatening to injure one’s property. That automatically disqualifies Hobbs Act robbery from qualifying under the force clause.

Maryland robbery also includes threatening fear of injury to property; therefore, cannot qualify. Douglas v. State, 9 Md. App. 647 (Md. Ct. Spec. App. 1970); Giles v. State, 8 Md. App. 721 (Md. Ct. Spec. App. 1970).

North Carolina conviction for discharging firearm into occupied building does not qualify because it is force against property – not a person. United States v. Edgar Parral-Dominguez, No. 14-4546 (4th Cir. July 23, 2015).

FORCE CLAUSEUsing Force v. Causing Injury

Offenses with elements requiring physical injury, serious physical injury, or even death do not equal “violent force.”

This is true because physical injury can be committed without use of strong physical force:

- poisoning, - laying a trap, - exposing someone to hazardous chemicals, - standing guard while confederate injures another, - locking someone in car on a hot day, - starving someone to death, neglecting a child, etc. - placing a barrier in front of a car, which causes an accident- leaving an unconscious person in middle of road


Examples of Assault Offenses

■ Texas aggravated assault requiring intentionally causing physical injury. United States v. Zuniga-Soto, 527 F.3d 1110, 1125 n.3 (10th Cir. 2008).

■ Connecticut assault requiring intentionally causing physical injury. Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003)

■ Colorado assault requiring defendant to cause bodily injury using a deadly weapon. United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005).

■ New Jersey aggravated assault requiring a defendant to cause significant bodily injury. United States v. Martinez-Flores, 720 F.3d 293, 299 (5th Cir. 2013).

■ Arizona aggravated assault requiring defendant to cause serious bodily injury and use deadly weapon with attempt to cause injury. United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012).


Threat Offenses that do NOT Count:

■ United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) (terroristic threats: threatening an act that results in serious bodily injury or death).

Child Abuse Offenses that do NOT Count:

■ United States v. Gomez, 690 F.3d 194 (4th Cir. 2012) (child abuse resulting in physical injury); United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (causing physical injury to a child).

Manslaughter Offenses that do NOT Count:

■ United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015) (Florida manslaughter).


Examples of offenses that do NOT count as violent, continued:

- Murder- Robbery (because can be done by putting in fear of injury)- Robbery with a dangerous weapon (dangerous weapon

can be poison, mace, or tear gas) - Carjacking (can be done by putting in fear of injury) - Possession of a dangerous weapon with intent to injure.- Sexual offenses requiring actual or threat of physical injury.

FORCE CLAUSE

Using Force v. Causing Injury

Examples of offenses that do NOT count as violent, continued:

Federal crimes: Hobbs Act robbery, Bank robbery, VICAR, Carjacking, Murder, Assault

■ All can be accomplished by putting someone in fear of physical injury or actually causing physical injury or death, but violent force not required.

FORCE CLAUSE

Intentional v. Reckless Conduct

All offenses must require intentional use of violent force or intentional threat of violent force; reckless mens rea will not suffice.

■ See Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006) (assault requiring defendant to recklessly cause serious physical injury using a deadly weapon); United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011) (aggravated assault requiring defendant to recklessly cause serious bodily injury).

FORCE CLAUSE


Argue that even if some intent exists, a crime satisfies the force clause only if it specifically requires an intent to use or threaten violent force.

■ See Flores-Lopez v. Holder, 685 F.3d 857, 863 (9th Cir. 2012); Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011); United States v. Coronado, 603 F.3d 706 (9th Cir. 2010) (intentionally discharging a firearm in a negligent manner that creates a risk of injury or death); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013).

FORCE CLAUSE


Threats:

Argue intimidation/putting someone in fear of bodily injury does not equal intentional threat if statute does not require defendant to have intent to put another in fear of bodily injury. See United States v. King, 979 F.2d 801, 803 (10th Cir. 1992) (threat under force clause “means both an intent to use force and a communication of that threat”).

FORCE CLAUSE


Threats:

Example of statute that does not qualify: Federal bank robbery, which can be committed without proof of intent to intimidate, even though specific intent to steal must exist - United States v. Yockel, 320 F.3d 818 (8th Cir. 2003); United States v. Kelley, 412 F.3d 1240 (11th Cir. 2005); United States v. Woodrup, 86 F.3d 359 (4th Cir. 1996).

ACCA Enumerated Offenses

ENUMERATED OFFENSES

MUST BE GENERIC

ENUMERATED OFFENSESGeneric Burglary: 3 elements

1. unlawful entry or remaining

■ California first degree burglary, Descamps v. United States, 133 S. Ct. 2276 (2013).

2. in a building (not in a vehicle, boat, or telephone booth)

■ Maryland first degree burglary, United States v. Henriquez, 757 F.3d 144 (4th Cir. 2014); Oregon first & second degree burglary, United States v. Mayer, 560 F.3d 948 (9th Cir. 2009); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc)

3. with intent to commit a crime

■ Maryland fourth degree burglary, United States v. Martin, 753 F.3d 485 (4th Cir. 2014)

FINAL ACCA ISSUE

Conspiracies and Attempts

Conspiracy Offenses

■ Never qualifies under the force clause or as an enumerated offense. United States v. White, 571 F.3d 365 (4th Cir. 2009); United States v. Fell, 511 F.3d 1035 (10th Cir. 2007); United States v. Gore, 636 F.3d 728 (5th Cir. 2011); United States v. King, 979 F.2d, 801, 803 (10th Cir. 1992);United States v. Gonzalez-Ruiz, 794 F.3d 832 (7thCir. 2015) (post-Johnsonfinding conspiracy to commit armed robbery not violent felony).

Attempt Offenses

■ Do not qualify as an enumerated offense. United States v. James, 550 U.S. 192 (2007) (attempted burglary is not burglary)

■ Qualify under force clause if (1) the object of the attempt satisfies the force clause and (2) the attempt statute requires a “substantial step.” United States v. James, 550 U.S. 192 (2007); United States v. Gonzalez-Monterroso, 745 F.3d 1237 (9th Cir. 2014).

CAREER OFFENDERS

CAREER OFFENDERS

Enhancement applies if defendant’s current offense is a “crime of violence” or “controlled substance offense” and defendant has two prior convictions for “crime of violence” or “controlled substance offense.”

CAREER OFFENDERS

“Crime of violence” - Three-Part Definition (U.S.S.G. §§ 4B1.1, 4B1.2)

■ Force Clause: offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

■ Enumerated offenses: burglary of a dwelling, arson, extortion, use of explosives.

■ Residual Clause: offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

CAREER OFFENDERS

Johnson should apply to render career offender residual clause (U.S.S.G. § 4B1.2(a)(2)) void for vagueness because it has identical language as that of ACCA residual clause in defining “crime of violence.”

CAREER OFFENDERS

Following Johnson, the S.Ct. GVR’d several Career-Offender cases, and some circuits have already indicated that Johnson applies. United States v. Darden, 2015 WL 4081065 (6th Cir. July 6, 2015); United States v. Collins, _F.3d _, 2015 WL 4997455 (6th Cir. Aug. 24, 2015); United States v. Goodwin, 2015 WL 5167789 (10th Cir. Sept. 4, 2015) (assumed without deciding); United States v. Ramirez, __ F.3d_, 2015 WL 5011965 (7th Cir. 2015)(same); United States v. Benavides, 2015 WL 5574264 (9th Cir. Sept. 23, 2015) (same); United States v. Herring, No. 14-3194 (2d Cir. Sept. 9, 2015) (same)

CAREER OFFENDERS

Government is now conceding that Johnson applies to the career offender residual clause, and even conceding plain error on direct appeal where issue was not preserved at sentencing. See United States v. Pagan-Soto, No. 13-2243 (1st Cir. Aug. 11, 2015); United States v. Zhang, No. 13-3410 (2d Cir. Aug. 13, 2015); United States v. Talmore, No. 13-10650 (9th Cir. Aug. 17, 2015); United States v. Lee, No. 13-10507 (9th Cir. Aug. 17, 2015); United States v. Smith, No. 14-2216 (10th Cir. Aug. 20, 2015).

CAREER OFFENDERS

Beware: Some cases hold that guidelines can’t be unconstitutionally void: United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012); United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).

But these cases should no longer be good law in light of Peugh v. United States, 133 S. Ct. 2072 (2013), which found advisory guidelines are subject to Ex Post Clause rooted in notice and arbitrary enforcement principles.

CAREER OFFENDERS

Instant Offenses

Be Careful: Make Johnson challenge to instant federal offense as well as priors. If instant offense does not qualify as “crime of violence” under Johnson, then can’t be career offender no matter what the priors are.

CAREER OFFENDERSWhat’s left of the Career Offender provision?

Almost the same as ACCA:

1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or

2. Enumerated offenses: burglary of a dwelling, arson, extortion, use of explosives (determined by generic definition).

Again, if “most innocent conduct” or “full range of conduct” covered by the statute does not match these definitions, prior cannot qualify as “crime of violence.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).

CAREER OFFENDERSBe Careful with commentary enumerated offenses

The commentary to U.S.S.G. § 4B1.2 lists numerous enumerated offenses that do not appear in text: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, and extortionate extension of credit.

This commentary cannot expand the text of the guideline because it is not a freestanding exception. United States v. Shell, __ F.3d__, 2015 WL 3644036 (4th Cir. 2015); United States v. Stinson, 508 U.S. 36 (1993); United States v. Armijo, 651 F.3d 1226 (10th Cir. 2011).

This means that enumerated offenses in commentary can now only qualify as “crimes of violence” if they have an element of “violent force” against a person.

CAREER OFFENDERS

Be Careful with commentary enumerated offenses

Under Shell and Stinson, conspiracies and attempts can’t qualify as enumerated offenses because text of career offender guideline only includes completed enumerated offenses. Conspiracy and attempt only included in commentary.

Also, conspiracies noted in commentary can’t qualify under force clause because not included in text of force clause. However, attempts are included in text of force clause. Nonetheless, make sure attempt is generic, i.e., requires substantial step toward commission of crime.

U.S.S.G. §§ 2K2.1 and 7B1.1

Same analysis as career offender, but it only applies to prior convictions not instant federal offense.

18 U.S.C. § 16(b)

Used for determining 8-level “aggravating felony” bump in U.S.S.G. § 2L1.2(b)(1)(C) and many other federal provisions.

18 U.S.C. § 16(b)

Crime of violence definition: two clauses

1. 18 U.S.C. § 16(a) – Force Clause

2. 18 U.S.C. § 16(b) – Residual Clause

Note: No Enumerated Offenses

18 U.S.C. § 16(b)

Crime of violence definition under residual clause

Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Argue that this is void for vagueness also because same categorical ordinary case inquiry applies here that was struck down in Johnson. See United States v. Avila, 770 F.3d 2014 (4th Cir. 2014); United States v. Keelan, 786 F.3d 865 (11th Cir. 2015); Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013).

18 U.S.C. § 16(b)

What’s left of 18 U.S.C. § 16(b)?

16(a) “crime of violence” force clause same as career offender/ACCA but has element of force against property:

Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person, or property of another.

But still must be violent force against property, not just injury to property – so, for example, Hobbs Act robbery, which can be violated by injury to property – even intangible property - does not qualify.

18 U.S.C. § 924(c)(3)(B)

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - [be sentenced to a certain number of years depending on the facts of the crime] . . . .

18 U.S.C. § 924(c)(3)(B)

Identical to 18 U.S.C. § 16, but looking at instant offense rather than prior conviction:

1. 18 U.S.C. § 924(c)(3)(A)– Force Clause

2. 18 U.S.C. § 924(c)(3)(B) – Residual Clause

Note: No Enumerated Offenses

18 U.S.C. § 924(c)(3)(B) Crime of violence definition under residual clause

Same language as 18 U.S.C. § 16(b)

Residual Clause: Offense qualifies as crime of violence if “by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Argue that this clause is void for vagueness for same reasons noted under §16(b). Same categorical ordinary case inquiry applies to § 924(c)(3)(B).

See United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009); United States v. Amparo, 68 F.3d 1222 (9th Cir. 1995).

What’s left of 18 U.S.C § 924(c)(3)?Same as 18 U.S.C. § 16(a):

Force Clause (18 U.S.C. § 924(c)(3)(A)): Has an element the use, attempted use, or threatened use of physical force against a person, or property of another (But still must be violent force against property, not just injury to property).

Examples of underlying offenses that don’t fall under force clause for reasons previously noted: All conspiracies, Hobbs Act robbery, carjacking, kidnaping, bank robbery.

If “most innocent conduct” or “full range of conduct” covered by the statute does not match this definition, prior cannot qualify as “crime of violence.” United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).

Note: no enumerated offenses.

RESOURCES

SAMPLE PLEADINGS:

WWW.SRC-PROJECT.ORG

SPECIAL THANKS

Paresh PatelStaff Attorney, D. Maryland

UNITED STATES SUPREME COURT OVERVIEW:

SELECTION OF CRIMINAL CASES GRANTED REVIEW & DECIDED DURING THE OCTOBER 2014-15 TERMS (THRU OCTOBER 30, 2015)

EXCERPTS OF REVIEW-PREVIEW-OVERVIEW1

I. JUDGES

A. Constitutional Right to Impartial Judge. Williams v. Pennsylvania, 136 S. Ct. (cert. granted Oct. 1, 2015); decision below at 105 A.3d 1234 (Pa. 2015). The Chief Justice of the Pennsylvania Supreme Court refused to recuse himself from a contentious death penalty appeal, in a case in which he had been the elected District Attorney who prosecuted the defendant, had personally authorized the death penalty, and had represented the state on appeal in the case. Moreover, the Justice ran for his judicial position on a law and order campaign, including specific reference to his work in prosecuting the defendant. The pending appeal included significant questions of whether his DA’s office committed violations of Brady v. Maryland. The questions presented by the certiorari petition capture the existing law and its application to the Chief Justice in the context of a multi-judge tribunal: “(1) In Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009), this Court held that due process requires an ‘objective’ inquiry into judicial bias. The question presented is: Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney's Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had "sent" to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state postconviction court that his office committed prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), when it prosecuted and sought death against Petitioner? (2) In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986), this Court left open the question whether the Constitution is violated by the bias, appearance of bias, or potential bias of one member of a multimember tribunal where that member did not cast the deciding vote. The circuits and states remain split on that question. The question

1 by Paul M. Rashkind, CHIEF, APPELLATE DIVISION, FEDERAL PUBLIC DEFENDER, S.D. FLA1.available in its entirety at www.fd.org

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presented is: Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?

II. SEARCH & SEIZURE

A. Motor Vehicles

1. Extended Traffic Stop for Dog Sniff Violates Fourth Amendment. Rodriguez v. United States, 135 S. Ct. (April 21, 2015). Just after midnight, police officer Morgan Struble observed a vehicle veer slowly onto the shoulder of the highway, before it jerked back onto the road. Struble initiated a traffic stop of the vehicle at 12:06 a.m. Struble is a K-9 officer, and his dog Floyd was with him that night. Struble approached the vehicle on the passenger’s side. The driver identified himself as Rodriguez. When asked why he drove onto the shoulder, Rodriguez replied that he had swerved to avoid a pothole. The passenger, who would not make eye contact with Struble, identified himself as Scott Pollman. Struble gathered Rodriguez’s license, registration, and proof of insurance and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble said that he was not. Rodriguez then decided to wait in his own vehicle. Struble went to his patrol car to complete a records check on Rodriguez. When he returned to Rodriguez’s vehicle, Struble asked Pollman for his identification and inquired where Pollman and Rodriguez had been. Pollman explained that they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska. When Struble went to his patrol car for a second time, he completed a records check on Pollman and called for a second officer. Struble issued a written warning to Rodriguez at 12:27 or 12:28 a.m. Struble then asked for permission to walk his dog around Rodriguez’s vehicle. When Rodriguez refused consent, Struble instructed him to exit the vehicle. Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive. At 12:33 a.m., a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez’s car. The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later. Seven or eight minutes passed from the time Struble issued the written warning until the dog indicated the presence of

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drugs. A search of the vehicle revealed a large bag of methamphetamine. Rodriguez was eventually charged with possessing with intent to distribute methamphetamine. The district court denied his motion to suppress. Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. The Eighth Circuit affirmed, noting that the seven or eight minute delay was an acceptable “de minimis intrusion on Rodriguez’s personal liberty.” The court of appeals declined to reach the question whether Struble had reasonable suspicion to continue Rodriguez’s detention after issuing the written warning. The Supreme Court reversed (6-3) because the extended stop violates the Fourth Amendment. In an opinion authored by Justice Ginsburg, the majority held: “In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. The Court so recognized in Caballes, and we adhere to the line drawn in that decision.” The case was remanded for the court of appeals to take up the additional question of whether the officer had reasonable suspicion to continue the detention based upon all the facts known to him. Justices Kennedy, Alito and Thomas dissented, arguing that Caballes permits the very minimal delay that occurred. Alito and Thomas (but not Kennedy) also wanted to reach the reasonable suspicion issue and find that the totality of facts permitted a continued detention on that basis.

B. Search Following Unlawful Stop. Utah v. Strieff, 136 S. Ct. (cert. granted Oct. 1, 2015); decision below at 2015 WL 223953 (Utah 2015). Police were surveilling a home based upon an anonymous tip of drug dealing. Streiff was seen leaving the home and stopped by police for questioning. During the stop it was learned that there was an outstanding warrant for his arrest. In a search incident to arrest on the warrant, police found Streiff in possession of meth, a glass pipe, and a mall scale with residue. The Utah Supreme Court determined that the initial stop was unlawful and suppressed the evidence found during the arrest on the pre- existing warrant. Question presented: Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?

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C. Facial Challenges under Fourth Amendment. City of Los Angeles, Cal. v. Patel, 135 S. Ct. (June 22, 2015). Respondents brought a Fourth Amendment challenge to a provision of the Los Angeles Municipal Code that compels “[e]very operator of a hotel to keep a record” containing specified information concerning guests and to make this record “available to any officer of the Los Angeles Police Department for inspection” on demand. Los Angeles Municipal Code §§41.49(2), (3)(a), (4) (2015). Respondents prevailed below. The Supreme Court granted cert to consider two questions: whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. The Court held (5-4) in an opinion by Justice Sotomayor, that facial challenges can be brought under the Fourth Amendment; and that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for pre-compliance review. Justice Scalia (joined by Chief Justice Roberts and Justice Thomas) dissented.

III. RIGHT TO COUNSEL

A. Right to Use Untainted Funds for Legal Fees. Luis v. United States, 135 S. Ct. (cert. granted June8, 2015); decision below at 564 F. App’x 493 (11th Cir. 2014). Luis is an indicted defendant in a federal criminal case, charged with health care fraud offenses. She wishes to retain private counsel to defend her in that criminal case. The government estimates a criminal trial lasting 15 days. In this related, contemporaneous civil action brought by the government under 18 U.S.C. § 1345, a federal district judge entered a preliminary injunction prohibiting her from spending any of her own money, including undisputedly untainted funds that she needs to retain counsel in the criminal case. The federal judge in the civil case rejected her argument that the Constitution prohibits the pretrial restraint of untainted assets needed to pay counsel of choice, finding that “there is no Sixth Amendment right to use untainted, substitute assets to hire counsel.” The Eleventh Circuit affirmed, concluding that the Supreme Court’s jurisprudence addressing the pretrial restraint and forfeiture of tainted assets – Kaley v. United States, U.S. , 134 S. Ct. 1090 (2014), United States v. Monsanto, 491 U.S. 600 (1989), and Caplin & Drysdale, Chtd. v. United States, 491 U.S. 617 (1989) – foreclosed a constitutional challenge to the restraint of untainted assets. Because the injunction prevents Luis from using her untainted assets to retain counsel, the federal judge presiding over the criminal case has stayed the related criminal proceedings (with the government’s consent) pending the outcome of this petition. Question presented: Whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and

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Sixth Amendments. There is presently a conflict between the Eleventh Circuit’s holding here and the Fourth Circuit. which has held held that “[w]hile Caplin [& Drysdale, Chtd.] made absolutely clear that there is no Sixth Amendment right for a defendant to obtain counsel using tainted funds, [a defendant] still possesses a qualified Sixth Amendment right to use wholly legitimate funds to hire the attorney of his choice.” United States v. Farmer, 274 F.3d 800, 804 (4th Cir. 2001).

IV. CRIMES A. Facebook Threats. Elonis v. United States, 135 S. Ct.

Jun 1, 2015). It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875 (c). Numerous states have adopted analogous crimes. Elonis was convicted and sentenced to 44 months imprisonment based on a series of Facebook posts he made about his estranged wife, which made her feel afraid, as though she was being stalked. The postings began after she and their children moved out of the marital home. Anthony Elonis began exhibiting troubling behavior at his workplace, the Dorney Park and Wildwater Kingdom Amusement Park. He was sent home several times after he was seen crying at work, and five sexual harassment complaints were filed against him by co-workers. He posted on his Facebook account a photograph taken for the Park’s Halloween Haunt, showing him in costume with a knife to a woman’s neck, including the caption “I wish.” He was fired the same day. Two days after he was fired, he posted additional violent statements on his Facebook page, concerning both the amusement park and his estranged wife. When his wife secured a protection-from-abuse court order, he continued to make bizarre posts on Facebook, including:

Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say. Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. I’m not actually saying it. . . . Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. That’s illegal. Very, very illegal. But not illegal to say with a mortar launcher. Because that’s its own sentence. It’s an incomplete sentence but it may have nothing to do with the sentence before that. So that’s perfectly Fine. Perfectly legal. I also found out that it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. Insanely illegal. Ridiculously, wrecklessly, insanely illegal. Yet even more illegal

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to show an illustrated diagram.

Some of his other postings can be likened to rap lyrics. He was eventually charged for those postings and others. He was acquitted of those against the amusement park, but was convicted of four of five counts involving statements about his wife. He challenged the jury instructions given but the Third Circuit affirmed, holding that § 875(c) requires only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. In a petition to the Supreme Court, the question presented by Elonis covered the intent required under the Constitution: “Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort. In granting the petition for cert, the Court added a statutory construction question to the constitutional question presented in the petition: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.” The Court answered its own question and resolved the case solely as a matter of statutory construction. Ruling 7-2, in an opinion by Chief Justice Roberts, the Court held that the jury instruction, which requires only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). (A) Section 875(c) does not indicate whether the defendant must intend that the communication contain a threat, and the parties can show no indication of a particular mental state requirement in the statute’s text. Elonis claims that the word “threat,” by definition, conveys the intent to inflict harm. But common definitions of “threat” speak to what the statement conveys—not to the author’s mental state. The government argues that the express “intent to extort” requirements in neighboring §§ 875(b) and (d) should preclude courts from implying an unexpressed “intent to threaten” requirement in § 875(c). The most that can be concluded from such a comparison, however, is that Congress did not mean to confine § 875(c) to crimes of extortion, not that it meant to exclude a mental state requirement. (B) The Court does not regard “mere omission from a criminal enactment of any mention of criminal intent” as dispensing with such a requirement. Morissette v. United States, 342 U.S. 246, 250. This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id., at 252. The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” United States v. Balint, 258 U.S. 250, 251. Thus, criminal statutes are generally interpreted “to include broadly applicable scienter requirements, even where the statute . . . does not contain them.”

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United States v. X-Citement Video, Inc., 513 U.S. 64, 70. This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” Staples v. United States, 511 U.S. 600, 608, n.3. Federal criminal statutes that are silent on the required mental state should be read to include “only that mens rea which is necessary to separate” wrongful from innocent conduct. Carter v. United States, 530 U.S. 255, 269. In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require . . . specific intent.” (C) The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U.S., at 72. In the context of § 875(c), that requires proof that a communication was transmitted and that it contained a threat. And because “the crucial element separating legal innocence from wrongful conduct,” id., at 73, is the threatening nature of the communication, the mental state requirement must apply to the fact that the communication contains a threat. Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing,” Staples, 511 U.S., at 606–607. This Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Rogers v. United States, 422 U.S. 35, 47 (Marshall, J., concurring). And the government fails to show that the instructions in this case required more than a mental state of negligence. Hamling v. United States, 418 U.S. 87, distinguished. Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. The Court declined to address whether a mental state of recklessness would also suffice. Given its disposition, the Court found it unnecessary to consider any First Amendment issues. Justice Alito concurred in part and dissented in part, while Justice Thomas dissented.

B. Requisite Proof of Controlled Substance Analogue. McFadden v. United States, 135 S. Ct. (June 18, 2015). Federal law criminalizes “knowingly or intentionally” manufacturing, distributing, or dispensing “a controlled substance.” 21 U.S.C. § 841(a). Prohibited “controlled substance[s]” ordinarily are listed in schedules updated through notice-and- comment rulemaking. However, the Controlled Substance Analogue Enforcement Act of 1986 provides that a “controlled substance analogue” also shall be treated as a Schedule I controlled substance. 21 U.S.C. § 813. A “controlled substance analogue” is defined as a substance with a chemical structure that is “substantially similar” to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect). Id. § 802(32)(A). The government

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does not publish lists of controlled substance analogues; instead, it prosecutes individuals who sell what prosecutors believe to be substances meeting the statutory definition, leaving lay juries to decide whether any given alleged analogue is substantially similar in chemical structure and effect to a scheduled controlled substance, often on the basis of conflicting expert testimony. Here, McFadden, a construction worker, began operating a small business buying overstocked items and reselling them on the internet. In early 2011, he noticed that a variety of businesses in his Staten Island neighborhood were openly selling products referred to as “bath salts” that he believed to be aroma therapy products that, when burned, produced a stimulating vapor. Prior to selling bath salts himself, on the advice of his brother, a federal Immigration and Customs Enforcement officer, petitioner researched the legality of the substances by examining the online list of controlled substances on the DEA’s website. Finding nothing to indicate that the substance he intended to sell were illegal, McFadden began selling bath salts containing various ingredients. When the government subsequently listed two of the compounds in some of his products on the controlled substances schedule, he flushed his supply of the affected products down the toilet. And when an undercover DEA agent subsequently attempted to purchase the illegal substance, he refused. Nevertheless, a grand jury indicted him for distributing, and conspiring to distribute, analogues of controlled substances. Although none of the substances sold were listed as a controlled substance, during the relevant time period, the government nonetheless insisted that these compounds were substantially similar to controlled substances, and therefore that petitioner had committed a criminal violation of the Analogue Act. A four-day jury trial focused primarily on the issue of whether the chemicals at issue constituted controlled substances analogues. The jury heard from competing expert witnesses, including a chemist, a drug science specialist, and a pharmacist. The experts based their conflicting conclusions in significant part on their review of the scientific literature, animal studies, and their own analyses of the chemical structure of the substances. The parties’ experts disagreed about how to compare chemicals for “substantial similarity,” whether the chemicals were in fact “substantially similar,” and even on whether scientists can offer an opinion on “substantial similarity,” when that phrase is not a scientific term. At the close of evidence, the district court rejected McFadden’s request that the jury be instructed that the government was “required to prove that he knew, had a strong suspicion, or deliberately avoided knowledge that the [substances at issue] possessed the characteristics of controlled substance analogues.” Instead, over his objection, the court gave a jury instruction under which the only state of mind requirement relating to the nature of the substance was that he “intended for the mixture or substance to be consumed by humans.” He was found guilty and the conviction was affirmed by the Fourth Circuit. The question presented to the Supreme Court was whether, to convict a defendant of distribution of a controlled substance analogue, the government

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must prove that the defendant knew that the substance constituted a controlled substance analogue. The Supreme Court reversed the conviction in a 7-2 decision authored by Justice Thomas (separate concurrence by Chief Justice Roberts). The Court held that to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue. “That knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance—that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.” Noteworthy is footnote 2, which limits the holding based on the government’s cncessions — “The Government has accepted for the purpose of this case that it must prove two elements to show that a substance is a controlled substance analogue under the definition in § 802(32)(A): First, that an alleged analogue is substantially similar in chemical structure to a controlled substance, § 802(32)(A)(i). Second, that an alleged analogue either has, or is represented or intended to have, a stimulant, depressant, hallucinogenic effect on the central nervous system that is substantially similar to that of a controlled substance, §§ 802(32)(A)(ii), (iii). Brief for United States 3. Because we need not decide in this case whether that interpretation is correct, we assume for the sake of argument that it is.” The case was remanded for Fourth Circuit to determine if the error in the jury instruction was harmless.

C. ACCA Residual Clause Unconstitutionally Vague Johnson v. United States, 135 S. Ct. (June 26, 2015). Johnson pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His plea agreement conceded that the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), might apply, raising the available penalties from no more than ten years in prison to a term of 15 years to Life imprisonment. However, Mr. Johnson reserved the right to challenge the application of the ACCA. His PSI concluded that his criminal history contained three prior convictions which qualified as “violent felonies” under 18 U.S.C. § 924(e)(2)(B): two convictions for simple robbery (which are not at issue) and a 2007 conviction for possession of a short-barreled shotgun in violation of Minnesota Statute § 609.67, sub. 2. Mr. Johnson objected to his treatment as an Armed Career Criminal in his sentencing filings to the district court, including an argument that mere possession of a short-barreled shotgun should not count as a violent felony. The district court overruled his objections and sentenced him to 180 months imprisonment, which the

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Eighth Circuit affirmed under its existing precedent. The Supreme Court reversed (8-1), holding that ACCA’s residual clause, 18 U.S.C. §924(e)(2)(B)(ii), is unconstitutionally vague in violation of the Due Process clause. Justice Scalia wrote for the majority: “We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Future litigation will decide questions of retroactivity and the holding’s application to the nearly- identical language in the Career Offender Sentencing Guidelines.

D. Hobbs Act: Conspiracy to Commit Extortion. Ocasio v. United States, 135 S. Ct. (cert. granted Mar. 2, 2015); decision below at 750 F.3d 399 (4th Cir. 2014). The Hobbs Act defines extortion, in relevant part, as “the obtaining of property from another, with his consent, . . . under color of official right.” 18 U.S.C. § 1951(b)(2). The Supreme Court has held that a public official violates that statute when he “obtain[s] a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Evans v. United States, 504 U.S. 255, 268 (1992). A jury found Ocasio, a former Baltimore Police officer, guilty of four offenses relating to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore auto repair shop in exchange for cash kickbacks. The trial evidence established a wide-ranging kickback scheme involving the Majestic Repair Shop and Baltimore Police officers, who referred accident victims to Majestic for body work, in exchange for kickbacks of $150–$300 per vehicle. Ocasio was convicted on three Hobbs Act extortion counts plus a charge of conspiracy to commit such extortion. On appeal, he maintained that his conspiracy conviction is fatally flawed because the kickbacks were from one co-conspirator to another. The Fourth Circuit affirmed. The Supreme Court granted cert to consider a question on which the Fourth and Sixth Circuits explicitly disagree: Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy? E. Hobbs Act Robbery. Taylor v. United States, 136 S. Ct. ___ (cert. granted Oct. 1, 2015); decision below at 754 F.3d 217 (4th Cir. 2015). Taylor was a member of a local gang that ripped off drug dealers, believing they would not report the robberies. He was nevertheless charged with Hobbs Act robbery in federal court. He contended that the government did not prove the drugs were in interstate commerce and he sought to introduce defense evidence that the objects of the robberies were not in interstate commerce. The district court refused his defense evidence and found that illicit drugs are inherently in interstate commerce. Question presented: Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. §1951, the Government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce

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element of the offense. V. TRIAL AND PLEA A. Batson Jury Challenges. Foster v. Chatman, 135, S. Ct.

(cert. granted May 26, 2015); decision below unpublished (Sup. Ct. Ga., No. 1989- V-2275). In this capital case involving a black defendant and a white victim, Georgia struck all four black prospective jurors and provided roughly a dozen “race-neutral” reasons for each of the four strikes. The prosecutor later argued that the jury should impose a death sentence to “deter other people out there in the projects.” At the trial level and on direct appeal, Georgia's courts denied the defendant's claim of race discrimination under Batson v. Kentucky, 4 76 U.S. 79 (1986). In habeas proceedings, the defendant obtained the prosecution’s notes from jury selection, which were previously withheld. The notes reflect that the prosecution (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “BLACK”' next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradict the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors. The Georgia courts again declined to find a Batson violation. Question presented: Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?

B. Confrontation Clause: Student’s Statements to Teacher

about Child Abuse. Ohio v. Clark, 135 S. Ct. ___ (June 1 8 , 2 0 1 5 ) . In all fifty States, certain individuals—most often, teachers, social workers, and medical professionals—have a mandatory duty to report suspected child abuse that they notice in the course of their work. In this case, the Ohio Supreme Court held both that this mandatory-reporting duty turned daycare teachers into “agents of the state for law enforcement purposes” and that a child’s out-of-court statements to the teachers qualified as “testimonial” under the Confrontation Clause. The two questions presented to the Supreme Court were: (1) Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause? (2) Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause? The Supreme Court reversed the Ohio court in an opinion by Justice Alito, with five justices joining, and separate concurrences by Justices Scalia and Thomas. The Court held that the admission into evidence of a three year-old child’s statements to a teacher did not violate the Confrontation clause; the statements were

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not testimonial, i.e., made with an eye toward creating evidence for a criminal case. Justice Alito’s opinion has some troublesome statements about the continuing vitality of Crawford and its progeny, but Justice Scalia provides a powerful criticism of that dicta to help you rebut prosecutors who try to resurrect old reliability standards.

VI. SENTENCING A. Statutory Construction of Minimum Mandatory Sentence.

Lockhart v. United States, 135 S. Ct. (cert. granted May 26, 2015); decision below at 749 F.3d 148 (2d Cir. 2014). 18 U.S.C. § 2252(b)(2) requires a district court to impose a prison term of at least ten years on a defendant convicted of possessing child pornography if he “has a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Question presented: Whether § 2252(b)(2)’s mandatory minimum sentence is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward,” an issue that divides the federal courts of appeal.

B. Recklessness Misdemeanor as Crime of Domestic Violence under 922(g)(9). Voisine v. United States, 136 S. Ct. (cert. granted Oct. 30, 2015); decision below at 778 F.3d 176 (1st Cir. 2015). Two defendants, Armstrong and Voisine, were convicted of misdemeanor assault crimes of domestic violence in violation of Maine state law. Both were subsequently charged with possession of a firearm or ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(9). Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that § 922(g)(9) violated the Constitution. The district court denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the district court’s decision. The defendants argued that a misdemeanor assault on the basis of offensive physical contact, as opposed to one causing bodily injury, is not a “use of physical force,” and, concordantly, not a “misdemeanor crime of domestic violence.” They also made a Second Amendment challenge. The First Circuit consolidated their cases and affirmed. The defendants petitioned for certiorari in 2014 (cert I), which the Supreme Court granted, vacating the court of appeals’ decision, and remanding for reconsideration in light of United States v. Castleman, 134 S. Ct. 1405 (2014). Castleman held that “Congress incorporated the common-law meaning of ‘force’—namely, offensive touching—in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence.’” Thus, the “physical force” in § 921(a)(33)(A) required violence or could be satisfied by offensive touching. Castleman left open whether a conviction with the mens rea of recklessness could serve as a § 922(g)(9) predicate. On remand, the First Circuit again affirmed, basing its decision on a categorical approach to the statute. Again, the defendants

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petitioned for cert, in 2015 (cert II), which the Supreme Court granted, agreeing to hear one question raised by their petition: Whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).

VII. CAPITAL PUNISHMENT

A. Florida Capital Scheme in Light of Sixth and Eighth Amendments, and Apprendi and Ring. Hurst v. Florida, 135 S. Ct. (cert. granted Mar. 9, 2015); decision below at 147 So.3d 435 (Fla. 2015). The Supreme Court granted cert on a question it reworded and seemingly generalized in place of the original petition: Whether Florida’s death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). The original petition set forth two question as follows: (1) Whether the Florida Supreme Court correctly held that the jury in a death penalty case does not have a constitutional obligation to render a verdict in the penalty phase of whether the defendant is mentally retarded or not when evidence has been presented to support such a conclusion; (2) Whether the Supreme Court of Florida has correctly concluded that this Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002) (a) has no applicability to Florida’s death sentencing scheme generally, (b) that specifically it does not require the jury’s recommendation of death be unanimous, (c) that the jury’s findings of aggravating factors need not be unanimous, (d) that the jury has no role in determining the factual issue of the defendant’s mental retardation, and (e) that the lack of unanimity does not offend our evolving standards of decency as required by the Eighth Amendment? The question presented by the Court certainly covers Apprendi and Ring (the Sixth Amendment constraint on judge-determined findings to support capital punishment). It is unclear, however, if it addresses only the kind of concerns raised in Justice Sotomayor’s dissent from denial of cert in Woodward v. Alabama, 134 S. Ct. 405 (2013) (Breyer joining), or if it also addresses the unanimity concerns set forth in Hurst’s petition – the jury ruled 7-5 in favor of the death penalty. It is equally unclear if the reworded question, which specifically includes the Eighth Amendment, will implicate Hurst’s intellectual disability, or tie it to the other issues. B. Kansas Challenges – Burden of Proof on Mitigators and Right to Sever Defendants at Sentencing. Kansas v. Carr and Kansas v. Gleason, 135 S. Ct. (cert, granted Mar. 30, 2015); decisions below at 329 P.3d 1102 and1195 (Kan. 2014) and 331 P.3d 544 (Kan. 2014). The court granted consolidated review on two of three questions presented by two brothers sentenced to death for murder: (1) Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,”

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as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? (3) Whether the trial court’s decision not to sever the sentencing phase of the co-defendant brothers’ trial here – a decision that comports with the traditional approach preferring joinder in circumstances like this – violated an Eighth Amendment right to an “individualized sentencing” determination and was not harmless in any event? The first question, alone, was also granted review in Kansas v. Gleason. which involved another defendant in the same murder case.

VIII. APPEALS

A. Law of the Case; Limitations as Plain Error. Musacchio v. United States, 135 S. Ct. (cert. granted June 29, 2015); decision below at 590 Fed. Appx. 359 (5th Cir. 2014). (1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment? (2) Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

B. Sentence Based on Erroneous Guideline Calculation as Plain Error. Molina-Martinez v. United States, 136 S. Ct. ____(cert. granted Oct. 1, 2015); decision below at 588 Fed. Appx. 333 (5th Cir. 2015). Question presented: In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court held that, in order to secure relief under plain-error review pursuant to Fed. R. Crim. P. 52(b), a defendant must show that the error affected his “substantial rights,” which in most cases means that the error must have been “prejudicial” –– it must have affected the outcome of the district court proceedings. The Court, however, declined to decide whether the phrase “affecting substantial rights” is always synonymous with “prejudicial” and the Court suggested that some errors should be presumed prejudicial even if the defendant cannot make a specific showing of prejudice. Since that time, at least two circuits have, in connection with errors in the application of the United States Sentencing Guidelines, adopted the very sort of presumption suggested in Olano; they presume an effect on substantial rights when an error results in the application of an erroneous Guideline range to a criminal defendant. See United States v. Sabillon-Umana, 772 F .3d 1328, 1333-34 (10th Cir. 2014); United States v. Knight, 266 F.3d 203, 207-10 (3d Cir. 2001). In this case, however, the Fifth Circuit rejected such a presumption as foreclosed by its prior decisions. Here, the guidelines calculation incorrectly over-scored criminal history due to a failure to follow guidelines relating to prior crimes not separated by intervening events. The error was not raised in the trial court, but first raised on appeal as plain error. Question presented:

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Where an error in the application of the United States Sentencing Guidelines results in the application of the wrong Guideline range to a criminal defendant, should an appellate court presume, for purposes of plain-error review under Rule 52(b), that the error affected the defendant’s substantial rights?

IX. IMMIGRATION CONSEQUENCES

A. Removal Based on State Drug Conviction. Mellouli v. Lynch, 135 S. Ct. (June 1, 2015). Mellouli was detained for driving under the influence of alcohol. Jail personnel discovered four tablets hidden in his sock, which he admitted were Adderall, a controlled substance under both federal and Kansas state law. He was initially charged with trafficking contraband in a jail under Kansas law, but he eventually pleaded guilty to a lesser state charge of possession of drug paraphernalia—specifically, a sock used to store a controlled substance. He was sentenced to 359 days in jail and 12 months probation. Under 8 U.S.C. § 1227(a)(2)(B)(i), a noncitizen may be removed if he has been convicted of . . . violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” After the completion of his probation, Mellouli was ordered deported and the deportation order was affirmed by the BIA. The Supreme Court reversed 7-2, in an opinion by Justice Ginsburg, holding that the paraphernalia conviction did not trigger removal under the statute. Using the categorical approach applied to such cases, the Court found that his conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i), because the drug-paraphernalia possession law under which he was convicted, Kan. Stat. Ann. §21–5709(b), by definition, related to a controlled substance: The Kansas statute made it unlawful “to use or possess with intent to use any drug paraphernalia to . . . store [or] conceal . . . a controlled substance.” But it was immaterial under that law whether the substance was defined in 21 U. S. C. §802. Nor did the state charge, or seek to prove, that Mellouli possessed a substance on the § 802 schedules. Federal law (§1227(a)(2)(B)(i)), therefore, did not authorize Mellouli’s removal. Justice Thomas dissented (joined by Alito). B. Removal Based on State Arson Crime as Aggravated Felony. Torres v. Lynch, 135 S. Ct. (cert. granted June 29, 2015); decision below at 764 F.3d 152. (2d Cir. 2014). After records disclosed that Torres, an alien, had been convicted of attempted third-degree arson in violation of New York Penal Law §§ 110..00 and 150.10, the Department of Homeland Security instituted removal proceedings against him. An immigration judge found that Torres was inadmissible to enter the country based on his conviction and that his conviction qualified as an aggravated felony, making him ineligible for cancellation of removal. The Board of Immigration Appeals affirmed that ruling, and the court of appeals upheld the Board’s decision. The Supreme Court granted cert to consider: Whether the Board of

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Immigration Appeals reasonably concluded that attempted arson in the third degree, in violation of New York Penal Law §§ 110.00 and 150.10, is an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. The issue presented focuses on whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.

X. COLLATERAL RELIEF: HABEAS CORPUS, §§ 2241, 2254 AND 2255

A. Prohibition on Executing Intellectually Disabled Individuals and Juveniles.

1. Habeas Review of Adequacy of Opportunity to Establish Mental Retardation. Brumfield v. Cain, 135 S. Ct.

(June 18, 2015). Kevan Brumfield was sentenced to death for the 1993 murder of off-duty Baton Rouge police officer. Brumfield, accompanied by another individual, shot and killed Officer Smothers while she was escorting the manager of a grocery store to the bank. At the time of Brumfield’s trial, the Supreme Court’s precedent permitted the imposition of the death penalty on intellectually disabled persons. But in Atkins v. Virginia, 536 U.S. 304 (2002), the Court subsequently held that “in light of . . . ‘evolving standards of decency,’” the Eighth Amendment “‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” This case presented the extraordinary circumstance in which petitioner faced imminent execution, despite the fact that the sole court to conduct a hearing on his Atkins claim concluded that he was in fact mentally retarded. Promptly after Atkins was decided, he presented his mental retardation claim to the state courts. His request was denied without a hearing, however, on the ground that his mental retardation was not apparent from his pre- Atkins trial transcripts – at which he did not even attempt to, and had no reason to, establish that he was mentally retarded. Brumfield then sought habeas relief. The federal district court recognized the grave error in denying a hearing on his Atkins claim, holding that the state court’s conclusion was an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2), because the state court mistakenly – and unreasonably – considered the record from petitioner’s pre-Atkins penalty phase as determinative of his mental retardation claim under Atkins. The court conducted a seven-day trial, at which several experts testified regarding Brumfield’s severe mental deficiencies. Based on the evidence presented, the court concluded that he was mentally retarded. The Fifth Circuit reversed. Without engaging with the district court’s reasoning or acknowledging any of the relevant case law, the Fifth Circuit concluded that the state court acted reasonably in denying a hearing. The Supreme Court reversed the Fifth (5-4) in a decision authored by Justice Sotomayor, holding that he is entitled to have his Atkins claims heard in federal court on the merits. “In Atkins v. Virginia, 536 U. S. 304 (2002), this

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Court recognized that the execution of the intellectually disabled contravenes the Eighth Amendment’s prohibition on cruel and unusual punishment. After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court. Justice Thomas dissented (joined in part by Chief Justice Roberts, and Justices Scalia and Alito) and Justice Alito dissented in an opinion joined by the Chief Justice.

2. Juveniles: Retroactivity of Miller – Round II. Montgomeryv. Louisiana, 135 S. Ct. (cert. granted Mar. 23, 2015); decision below at 141 So.3d 264 (La. 2014). Henry Montgomery has been incarcerated since 1963, serving a mandatory life sentence for a murder he committed just 11 days after he turned seventeen years of age. Montgomery filed a state district court motion to correct his illegal sentence in light of Miller v. Alabama, 567 U.S. , 132 S. Ct. 2455 (2012), which holds that mandatory sentencing schemes “requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole” . . . violate the Eighth Amendment’s ban on cruel and unusual punishment. The Louisiana state courts denied Montgomery relief, relying on State v. Tate, 2012-2763 (La. 11/5/13), cert. denied, 134 S. Ct. 2663 (2014), which held that Miller is not retroactive on collateral review to those incarcerated in Louisiana. The question presented here is whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison? In addition to the question presented by the petition, the parties were directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ___ (2012)?”

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WHOSE STORY IS IT, ANYWAY? –GUIDING STUDENTS TO CLIENT-

CENTERED INTERVIEWINGTHROUGH STORYTELLING

LAURIE SHANKS*

Persuasively telling a client’s story is vital to meaningful and suc-cessful representation. This article explores both the challenges fac-ing students as they try to master this skill as well as the challenges ofteaching this skill through the lens of one simple exercise. This exer-cise has proven extremely effective in teaching law students criticallessons about client-centered interviewing. Conducted effectively,and coupled with directed discussion, the exercise has also been inval-uable for teaching client-centered representation, interviewing tech-niques, attorney-client confidentiality and the impact ofdemographics on the attorney-client relationship. Through their expe-rience with the exercise, each of these concepts acutely resonates withthe students. By completing the exercise, law students come awaywith a commitment to telling their clients’ stories, and the skillsneeded to do it well.

“My job is to tell my client’s story, and to do that I really haveto get to know him.”1

I. INTRODUCTION

“How to hear” is what I teach. It isn’t easy. Law students don’tknow how to listen to a client’s pain, fear, anger or despair. Such aconnection isn’t lawyer-like, they feel, or goes against the “issue, rule,analysis, conclusion” format drilled into them in their first yearcourses. Early in their law school experience, many students are con-sumed by the competitive academic environment—concerned exclu-sively with their grades, their future careers, and their present life

* Laurie Shanks is a Clinical Professor of Law at Albany Law School. The authorthanks Albany Law School student Molly Adams for her support and assistance.

1 Lieutenant Commander Charles Swift, Attorney for Salim Hamdan, a Yemeni citi-zen declared an “enemy combatant” and incarcerated at Guantanamo. Swift successfullyargued that Hamdan should have access to the court system in the U.S. Supreme Court,Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Jonathan Mahler, Commander Swift Objects,N.Y. TIMES, June 13, 2004 (Magazine), available at http://www.nytimes.com/2004/06/13/magazine/13MILITARY.html?ex=1402545600&en=506e105e040960d9&ei=5007&partner=USERLAND.

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510 CLINICAL LAW REVIEW [Vol. 14:509

choices and challenges. For almost twenty years, I have sought toovercome these barriers. My goal is to change the students’ focus tothe client, to hear what the person across the desk, in the chair, orbehind the lock-up bars is saying – what her story is, and what thatstory says about her and the law.

The need to listen empathically can be difficult even when theclient is similar to the student. The problem is even more challengingif the client is “different” as defined by race, ethnicity, gender, age,economic background, or sexual orientation. It is also daunting if theclient is accused of doing something “bad” such as committing acrime, particularly if the crime is considered especially reprehensible,such as assaulting or sexually molesting a child. Add to that issues ofmental illness, drug addiction or mental retardation, and the project isharder still. It is often in the context of the initial client interview thatthese issues first manifest themselves.

Many practitioners, even experienced ones, are unable to meettheir clients’ needs. While more confident than law students, exper-ienced lawyers often have a limited view of what is required for com-prehensive representation. Practitioners commonly concentrateprimarily on attempting to obtain the type of information they willneed to draft legal pleadings or prepare for trial, while ignoring theskills necessary to establish a relationship with the client, even whenthey acknowledge and can articulate the importance of such aconnection.

In teaching my law students, I want to produce lawyers who dobetter than this. I draw on my experience and have developed tech-niques to train law students to become client-centered attorneys fromthe start of their careers. This article describes one example I haveused to teach the skill of client-centered interviewing. I have devel-oped an exercise that I call “Whose Story Is It?” which requires stu-dents to learn for themselves what it means to be both a lawyer and aclient. At the beginning of a trial practice course, students learn thatthe essence of the trial is the lawyer telling the story of another (theclient) to the judge or jury. The exercise makes the concepts of confi-dentiality, self-disclosure, diversity, and theory and theme at trialcome alive.

There are many barriers preventing attorneys from approachingtheir practice in a client-centered way, but there are techniques whichare successful in teaching students and practitioners alike to confrontthese barriers. The exercise described in this article was developed asa tool to bring law students out of the competitive academic world andinstill in them the value of truly listening to their clients. It is alsouseful to practitioners who must remember the importance of client-


Spring 2008] Whose Story Is It, Anyway? 511

centered interviewing, a skill which can get lost in a busy practice.

II. RAPPORT BUILDING HURDLES: “THE DEPARTMENT OF

MOTOR VEHICLES (DMV) INTERVIEW”

In addition to law school teaching, I teach nationally at TrialPractice Institutes2 and CLE seminars. Some of these programs arebroad-based state bar sponsored events, attracting civil and criminaldefense practitioners in public and private practice; several are limitedto criminal defense attorneys. Many of the attendees at these trainingprograms are attorneys in Public Defender offices or those who han-dle a significant number of court-appointed cases in which they re-present indigent persons facing criminal charges.

Client interviewing is a standard skill taught at Trial Practice In-stitutes. Generally, each lawyer/participant is asked to do a mock in-terview of an actor who is playing a client charged with a criminaloffense. The actors are experienced professionals who are briefed ona simulated case and who stay in character throughout the exercise.The actors are given specific direction concerning the reactions andemotions they should express about various topics that are likely tocome up during the interview.

The actors hired are various ages, races and ethnicities and playclients from different economic and educational backgrounds. Someare told to express pre-conceived notions about an attorney’s abilitiesbased upon age, experience, or whether the attorney is court ap-pointed or privately retained. Some actors are instructed to exhibitsigns of depression or other mental illness or to be fixated on oneissue confronting them, such as potential job loss, what happened totheir car when they were arrested, or whether their attorney believesin their innocence.

Participants at the Trial Practice Institutes are asked to assumethat they are meeting their client for the first time and are told to startthe exercise by explaining what it is they wish to accomplish duringthe interview. Experienced lawyers tend to state their goal as “estab-lishing rapport” by “gaining the trust” of the client. They understandthat making a personal connection with the client is essential if theyare to be successful in the subsequent representation.

Once they state their objectives, each attorney is given ten or fif-teen minutes to meet with the “client” while the other members of the

2 I have taught each summer for the past 19 years at the National Criminal DefenseCollege (NCDC). The College attracts criminal defense practitioners from across the na-tion for intensive hands-on instruction and practice. The College is housed at Mercer LawSchool, Macon, Georgia under Professor Deryl Dantzler, Distinguished Professor of TrialAdvocacy, Dean of NCDC, and Director of Trial Practice.



trial practice group and the faculty members observe the interaction.The actor/client responds to the attorney according to the instructionshe or she has been given and stays in character throughout theexchange.

Of course, having and stating a particular goal does not mean it isattainable. Often an attorney’s desire to establish rapport or gaintrust does not translate into making such a connection. At the conclu-sion of the exercise, when the actors are asked, in character, how theyfeel about their attorney, the majority of them respond, “He doesn’tcare about me,” “She doesn’t believe me,” or “If I had money, I couldhire a good lawyer.”

Why the disconnect? The lawyer wanted to connect. The clientwanted to connect. Yet, there was no bridge. The explanation, quiteoften, is the common experience of something I call “The Departmentof Motor Vehicles Interview” (“DMV Interview”). In attempting toanalyze the problem of lawyers who want to establish rapport andtrust in the attorney-client relationship but nonetheless fail to do so, Ihave been struck by one consistent observation. Virtually every attor-ney I have observed, from brand new lawyers to those with twentyyears experience, initiates the attorney-client relationship with the“DMV Interview.”

The “DMV Interview” has defining props: a legal pad or folderand a pen. The attorney sits down, pen in hand, almost always acrossthe table from the client, and places the pad on the table. Some attor-neys put the pen down in order to shake the client’s hand, but a veryhigh percentage cling to the pen from the moment they walk throughthe door to the moment the two part company.3

This interview generally starts in one of two ways. A substantialnumber of attorneys do not even tell the client their name or officeaffiliation before launching a pre-set series of questions. Anothergroup of lawyers gives a “speech” at the beginning of each interview,explaining confidentiality in the attorney-client relationship and thenature of the charges or the legal difficulty they believe the client isconfronting. These lawyers then proceed to the same set of questionsthat the first group asks.

The questioning by the lawyers is primarily aimed at gatheringthe client’s personal identifying information. The questions generallyfollow this pattern: “What is your name?” “Address?” “Date ofbirth?” “Social security number?” “Are you married?” “What isyour spouse’s name?” “How many children do you have?” “What

3 I hope in the new technological age that the DMV Interview is not newly defined bythe use of a laptop computer or a “BlackBerry,” either of which will create equal or moredistance between the attorney and client than the pen and paper.



are their names and ages?” “Are you employed?” “Where?”Rarely does the lawyer explain to the bewildered or apprehensive

client why the questions are important or how the answer will beused. Typically, the lawyer’s eyes are focused on the legal pad as he orshe writes down the responses, with darting glances toward the client’sface only as the next question is being asked. The lawyer is obliviousto a client’s rolling of the eyes, slouching in the chair, and stiffening ofthe jaw and arm muscles. Downcast eyes, tearing, and hand wringingare easily missed.4

More significantly, the script rarely changes even when the clientchanges. The client’s essential identity seems to have no impact on thequestions asked or the “speech” delivered. Whether the actor playingthe client is the same or a different race than the attorney, older oryounger, exhibiting signs of mental illness, or has been told that, forthe purposes of the exercise that he/she is illiterate or has a collegeeducation, the type and manner of the attorney’s questioning remainsvirtually the same.

Complex legal terms, such as indictment, bail, information, dis-covery, and predicate offenses are used without explanation or an at-tempt to determine the client’s level of understanding.5 Persistentquestions by the “client” about eviction, job loss, or other matters notconsidered relevant by the lawyer are generally ignored or met withirritation or explanations that those matters will be addressed at a“later” unspecified time.

When they listen to the actors being questioned afterward, theattorneys are dismayed to learn that their “clients” have a negativeview of the initial interview. They are also defensive about the need

4 I teach each summer at the New York State Defenders Basic Trial Skills Program, aprogram developed specifically for public defenders in their first years of practice. It is avery innovative program, in which each group of participants is “coached” by a team ofinstructors which includes both an experienced attorney and an actor or communicationexpert. These non-lawyer team members provide invaluable feedback to the participantsabout the “clients” in terms of their non-verbal communication and reactions to their at-torneys. They point out the missed cues and discuss their significance, for example thedowncast eyes may be the result of embarrassment or may signal the need to explore moreserious considerations such as depression. Sensitivity to cross-cultural and economic dis-parity issues is stressed throughout the week-long program.

5 See generally STEFAN H. KRIEGER & RICHARD K. NEUMAN, JR., ESSENTIAL LAW-

YERING SKILLS: INTERVIEWING, COUNSELING, AND PERSUASIVE FACT ANALYSIS 262(Aspen 3rd ed. 2007) (providing examples of how lawyers frequently miss verbal cues andbody language from clients and how that can work against the development of a trustingattorney-client relationship); see also Gay Gellhorn, Lynne Robins & Pat Roth, Law andLanguage: An Interdisciplinary Study of Client Interviews, 1 CLINICAL L. REV. 245 (1994)(emphasizing the role of language and clear communication in establishing a trusting attor-ney-client relationship). The actors at the Trial Practice Institutes provide strikingly similarfeedback when asked about the interview. They note that some attorneys never made eyecontact, didn’t explain legal terms, or failed to listen to their concerns.



to quickly obtain demographic information.

I can’t help him unless I know something about him.I only have ten minutes to see him in lockup.If she wants to get out on bail, I need to know whether she has a jobor not.How will I know how strong the case is if I don’t ask any questions?

The attorneys are also quick to place any blame for lack of rap-port on the client or “the system,” and express such sentiments as:

I work my butt off for these guys and all I hear is that they want a‘real lawyer.’I feel sorry for her, but the only way she is going to see her kids is ifshe cooperates with me.I’m an attorney, not a social worker.Our office isn’t allowed to go to Family Court and that’s all hewanted to talk about.How am I supposed to know if someone is mentally ill?The Judge is going to be on the bench in twenty minutes; if I’m notready, I’m in big trouble.When I go to the jail I have ten guys to see; I don’t have time to hear asob story from every one of them!

These are typical reactions of experienced attorneys whenpresented with the dilemma of the need to quickly obtain informationand establish rapport with their clients. The “DMV Interview” helpsto explain this dichotomy between the lawyer wanting and needing toobtain information from a client and that client’s negative perceptionof the attorney as a result of the interview process. I use the DMVconcept to help train attorneys to fulfill their goals of establishing rap-port and trust with the client, while still eliciting the information theyrequire.6

After the actors have left the room, I ask the lawyers to reflectfor a few moments on who they are and where they stand in society.Although many of the lawyers I teach are young public defenders, andare therefore poorly paid in comparison to successful corporate attor-neys and other attorneys in private practice, in a more global contextthey are all quite privileged. By definition, they have succeeded inundergraduate and law school, have passed the Bar exam, and havejobs. In addition, although some come from impoverished back-grounds, many acknowledge they are privileged in a more absolute

6 See generally Linda F. Smith, Client-Lawyer Talk: Lessons From Other Disciplines,13 CLINICAL L. REV. 505 (2006) (illustrating the importance of establishing trust with cli-ents throughout the interview as a cooperative conversation).



sense, having grown up in a middle or upper class family, having ac-quired a graduate degree, being a member of a profession, having asupport network, and the like.

After discussing their relative prosperity and professional status, Iask the attorneys, “When was the last time that someone asked youthe types of questions you asked your client in the exercise? Whenwas the last time you were asked a series of pedigree questions likethe ones you just asked?” The answers vary, “When I applied for apassport.” “When I filled out the application to come to the TrialPractice Institute.” “When I was getting a loan for my house.” “I justmoved and had to re-register to vote.” “I bought my first car.”

I ask the attorneys what all of the answers have in common.Rarely do any of the lawyers see any connections. I point out thatwhen privileged people are asked such questions, they consider themroutine, even boring, and answering the questions typically results insomething positive, e.g. obtaining a passport, renewing a driver’s li-cense, approval of a home loan, registering to vote in the nextelection.

Our discussion moves to the other set of interactions where thisquestioning is common, which happen to be more often the experi-ence of poor people: when probation is revoked, food stamps are de-nied, children are removed from their home, warrants are executed,family members are arrested, evictions occur, deportations are initi-ated. And who asks these types of questions? Federal, state, countyor city employees with forms to fill out. These are officials who maybe viewed by the clients as bureaucrats, at best, and bullies, at worst.They are police officers, probation officers, immigration officers, andsocial services workers. They are certainly not individuals whom theclients trust as their advocates.

How are these questions that result in terrible things happeningto future clients of the students and practitioners asked? Generally, inthe same rapid-fire manner, with little or no intonation, little or noreaction regardless of the answer, and with little or no eye contact,smiling or other non-verbal acknowledgment. And always, bingo,with a pen and paper on a desk in between the questioner and theclient.

I then ask the attorneys to view their behavior from the client’spoint of view. Why would their client have reason to believe that theattorney was any different from the police officer or probation of-ficer? In fact, how would the client even know who the attorney wasor why he or she was asking the questions? Was an introductionmade? Was an explanation given? Why were the questions asked?Who would see the answers that were written on the pad of paper?



The lawyer knew what was necessary to open the file or to prepare thebail application, but how could he assume that the client would under-stand that?7

For those lawyers who begin the interview with a preparedspeech about confidentiality and the nature of the proceedings, I askhow they can gauge their client’s level of understanding. Do theyknow if English is their client’s first language? If their client is liter-ate? What their client’s level of education is? Do downcast eyes sig-nify understanding, mere acquiescence, or acute embarrassment? Aretwitching limbs a sign of nervousness, mental illness or drugwithdrawal?

If experienced practitioners, attempting to establish rapport withtheir clients, consistently use a technique that does exactly the oppo-site of what they intend, there is a need to teach them a more effectivemethod. As a law school professor, however, I want to do more. I donot want to wait until I observe practitioners doing it “wrong” to helpthem learn a better way.

Law students require effective client interviewing skills beforethey become practitioners.8 If lawyers are to be client-centered fromthe moment they begin their careers, both in their clinical work andwhen they graduate, the law schools must provide this training.9 Thestorytelling exercise I have developed, “Whose Story Is It?” guidesstudents from the DMV Interview to Client-Centered representation.

III. TEACHING RAPPORT BUILDING:THE STORYTELLING EXERCISE

Twenty-four students enroll in my trial advocacy course eachyear. Each week, all students in the course attend a one hour lecture.In addition, each student is assigned to one of two afternoon lab sec-tions of twelve students which meet for a two-hour period each week.

The first class of the semester is a lecture in which I explain the

7 In preparing a bail application in New York state, for example, an attorney mustinclude the following information: “(a) . . .the court must, on the basis of available infor-mation, consider and take into account: (i) The principal’s character, reputation, habits andmental condition; (ii) His employment and financial resources; and (iii) His family ties andthe length of his residence if any in the community; and (iv) His criminal record if any. . .”N.Y. Criminal Procedure Law § 510.30 (McKinney 1970).

8 See Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-CenteredRepresentation, 12 CLINICAL L. REV. 369 (2006). See also DAVID A. BINDER & SUSAN C.PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH (West1977) (discussing the value of client centered representation).

9 See generally JAMES W. MCELHANEY, MCELHANEY’S TRAIL NOTEBOOK (AmericanBar Association 4th ed. 2005) (1981) (providing a comprehensive tool for students and trialattorneys alike). See also THOMAS A. MAUET, TRIALS: STRATEGY, SKILLS, AND THE NEW

POWERS OF PERSUASION (Aspen 2004).



class requirements and describe how the course will be structuredthroughout the semester. I then introduce the concepts of “Theoryand Theme” in trial advocacy and briefly discuss the various aspects oftrial work (voir dire, opening statements and closing arguments, directand cross-examination) that will be covered in the course. Other thana few questions (usually regarding grading) the students tend to listenattentively, assiduously taking notes, and focusing almost exclusivelyon me.

I then tell the students that I would like them to separate into twogroups on different sides of the room based upon their afternoon labgroup assignment. Once they are in their groups, I ask them to pairoff with another student. I tell them to choose someone that they didnot know previously. Once the students have paired up, I give themthese directions:

I would like all of you to take a few moments to think of somethingthat has happened to you that changed your life. It must be some-thing that does not relate to law school or why you came to lawschool. When I am finished speaking, I want each pair of you tofind a quiet space in this room, away from the other students.

Once the students have selected a partner and rearranged the chairsto allow space between each pair, I give the following additionaldirections:

Decide who will go first. That student will tell his or her partnerabout his or her experience. You will have about ten minutes.When the time is up, I will say ‘switch.’ The other person will thenhave an opportunity to tell about his or her experience. After an-other ten minutes, I will say ‘stop.’

After a few blank looks, moans, and some nervous laughter, thestudents begin to talk with their partners. Within a moment or two,they are all quite engrossed in the exercise. Some students are wildlygesticulating with their hands, appearing to act out events, others areobviously telling humorous stories replete with laughter and groans,and still others have leaned in close to one another and appear almostgrim.

I can observe some students listening intently, without interrup-tion, as their partner tells a story. Other students appear to be askingquestions or commenting on what they are hearing. I have never seena student take out a pen and paper and take notes on the story thatthey are hearing. The students all choose to sit side by side or onchairs facing one another with nothing between them. Some of the



students touch one another during the course of the exercise.During the exercise, I either stay in a part of the room away from

any of the student pairs or leave the room, returning to give the“switch” and “stop” directions. At the conclusion of the allotted time,I dismiss the students.

I next see the students when they meet for their afternoon labsection. Once they have taken seats, I greet them and then call on onestudent. “Joe, who was your partner during the lecture class? Kathy?OK, please go to the front of the room and tell us Kathy’s story.”10 Ithen take a seat with the students, and participate only to call on eachstudent in turn. I give no further direction to the students until all ofthe stories have been told.

A. The Stories

The stories run the gamut from childhood misadventures, to“how I met my husband,” to brushes with death. Some are mundane,some inspiring, some excruciating. Students discuss childbirth, sexualabuse, and acts of heroism performed or witnessed. There are storiesabout parents, spouses, children, “coming out” sexually, religion,travel to foreign countries and trips to an amusement park. There arestories that take only a few minutes to tell and stories that take muchlonger than the students spent in their pairings. Most of the studentsare surprised that the exercise is something more than a “get to knowyou” party game. When called on, a few say, “I’m afraid I’ll forgetsomething,” or “Can I tell about my own experience instead?” Someappear to be embarrassed or concerned at sharing another’s story, butno student has ever refused the direction to tell the story. Nor has anystudent requested that his or her story not be told. A few studentshave said, “Why didn’t you tell us that we would have to do this?”

Although all of the students comply with the direction to tell theirpartner’s story, some are obviously uncomfortable in the front of theroom, others at ease. Most of the stories are told in the third person,but occasionally a student will use the first person. Often a studentwill “check facts” with his or her partner, e.g., “your sister’s name isSusan, right?” Sometimes the student whose story is being told willinterrupt the “teller” to correct facts or add details.

Often the teller will add his or her own interpretation of theevent, even going so far as to directly contradict how the participant inthe story related it. For example, one student’s story was a poignantone of rejection experienced during his childhood. The teller ex-pressed it this way,

10 All of the students’ names have been changed for use in this article.



Robert told me that it didn’t bother him that these boys weren’t hisfriends anymore, but I don’t think that is true. I think the fact that hetold me about it so many years later means that it affected himdeeply.

Another student said,

I could tell how much Tamara admired her sister and how she wishedshe could be as brave as Rachel was.

The teller often speaks directly to the person about whom thestory is being told. Other students make almost no eye contact withtheir partner and still others tell the story directly to me, essentiallyignoring their partner as well as the other students in the class.

Many of the students add their own experiences and emotionalreaction to the story they are telling.

Brian told me that his father was his hero growing up. He told mehow much he admired the fact that he fought in Viet Nam. I couldunderstand that because I always thought my father could do any-thing. He didn’t fight in a war, but he taught me to stand up for whatI believed.

Some of the students will “act out” the story, pretending to be inthe car speeding down the highway or in the hospital room. Otherswill acknowledge the skill of their partner in describing theexperience,

When she told me how she felt when the baby came out, I startedcrying because it was so real.

A few of the students will explicitly cite a “lesson” from the story,usually at the end of their recitation.

What I learned from John was how important family is to him.

Others will begin with a theme,

Karloff told me about how he learned to swim - the hard way!

One student even intoned,

The moral of this story is: “Be careful who you trust.11

11 See generally Phillis Gershator, WISE. . .AND NOT SO WISE TEN TALES FROM THE

RABBIS (Jewish Publ’n Soc’y 2004) (illustrating the traditional use of storytelling to teachreligious and moral lessons). See also Heather Forest, WISDOM TALES FROM AROUND THE

WORLD (August House, Inc. 1996) (highlighting the diversity of cultures which historically



The student paused dramatically before pronouncing the moral toinsure the class was listening and would absorb the “lesson.”

Many of the students give their impression of the story and/ortheir partner. Often, these observations contain a comparison withthemselves:

I think Nancy is one of the most courageous people I have ever met.I can’t believe that she started law school while she was receivingchemotherapy. And she has two kids to take care of. I can barelytake care of myself, and I still call my mom almost every day.

Often, the student whose story is being told will look down at hisor her desk while the story is being told, but will look up when it isover and thank the teller of the story. If it is a sad or heroic story,others in the class may comment during or immediately after the storyis told. It is not unusual during humorous stories for the men in theclass to “high five” the subject of the story for a daring or clever actdescribed in the story. Twice, women students have asked their class-mate to show a picture of the baby whose birth story was told.

B. The Aftermath

Once all of the students have had an opportunity to tell theirpartner’s story, I lead a discussion of the exercise. Although there isno assigned seating in the class and the students are given no directionas to where they should sit, most of the partner pairs are sitting to-gether during the lab. I first simply ask them to notice and to thinkabout why they chose to sit next to their partner in the exercise andwhether they had ever before sat next to this person in a class.

I then bring them back to the class during which they shared theirstories and ask the following questions:

1. How did you choose your partner?2. Was it someone you knew before?3. Was your partner the same gender?4. Was your partner the same race?5. Are you and your partner similar in terms of age?

I next ask the students who “went first” in telling their story andhow they decided on which of their life stories to share. Did theychoose their most important story? The easiest to tell? A funny one?One that showed them in a good light?

I follow up these questions by asking whether they believe that

use of stories to pass on lessons to future generations).



their choice of stories was in any way influenced by the characteristicsof their partner. In other words, would they have picked anotherstory if their “audience” was another woman as opposed to a man, aperson of a different race, an older or younger person, or if they knewthe entire class would hear the story? Because I discuss issues of race,gender, and age, as well as power and status throughout the semester,this is an opportunity to let the students know that we all make demo-graphic observations and that it is not only appropriate, but necessary,to discuss these factors and their impact on our behavior.

I ask each student to think about how they wanted their partnerto feel about them as a result of the story they chose to tell. Did theywant the other person to like them? To respect them? To feel sorryfor them? To learn about their values? Their background?

I then turn to the students who told their story “second.” I askthem whether they changed the story that they had planned to tellbased upon the story that they heard. Did they “mirror” the firststory in subject matter or tone? For example, if the first story was“how I met my husband,” did the student then tell how she/he met his/her partner? If the first story was light-hearted or humorous, was thestudent then hesitant to tell a story of her child’s struggle with drugaddiction?

I ask the students to think about how they felt about their partnerwhile the story was being told.12 Had they formed an opinion of theirpartner before the story began? Did that opinion change? Did theyask questions during the story? Why or why not? How did they re-spond during the storytelling to information that was funny, sad, orupsetting? What did they say to their partner about their feelings?Did anyone touch their partner? Why or why not? How are they nowfeeling about their partner? Closer? More distant? Are they a teamin some way?

I ask the students to think about what they did with the storiesbetween the time they heard them and the time they came to class.Did they think about them? Did they share them with anyone? If so,who? Did they think about how they would share them? Did theyhave further questions they would like to ask their partner about thestory or the people or places described? How did they feel about thestory that they told? Do they feel they disclosed too much aboutthemselves? Not enough? Were they worried about what would hap-pen to the information?

12 See Filippa Marullo Anzalone, It All Begins With You: Improving Law School Learn-ing Through Professional Self-Awareness and Critical Reflection, 24 HAMLINE L. REV. 324(2001) (emphasizing the importance of the emotional component for creating a successfuladult learning environment and engaging adult learners in the learning process).



Interestingly, many of the students say that they would feel veryuncomfortable sharing any of the information that they learned in theclass, particularly if it was very personal. One student last semestersaid,

I normally tell my wife everything, but I told her that I didn’t thinkthat I should share the stories from this class. I really thought thatwhat happened here should stay here. We didn’t agree to that in ad-vance, but I just think that should be the rule.

His classmates all nodded vigorously in agreement and one said,“Let’s vote on that.” Everyone then raised their hands. This action onthe part of the students, with no prompting from me, made for an easytransition to the discussion of Making Confidentiality Real.

C. “Beachballing”: Leading the Directed Discussion

The discussion portion of the exercise is crucial, and while myrole in it is important, I have found that is equally important that I amnot the focus. I use a teaching technique during the discussion portionof the exercise that I call “beachballing.” I sit with the students ratherthan standing or sitting at the front of the classroom, thereby creatinga more democratic learning environment in which adult-learners takea role in the learning process. By actively participating in the experi-ence, a direct connection is made between the lessons learned andpractical problems students will be faced with in practice.13 I do notcall on students. I ask a question and then remain silent until one ofthe students makes a comment. I then wait to see the response of theother students. I will make eye contact with particular students toencourage them to respond to their classmates’ observations, but willrespect their silence if they do not comment. If a student raises his orher hand, I will nod or make eye contact, but try to remain silent.

I conceptualize my role in asking questions as lobbing a beachball into a group.14 It is up to the group members to “keep the ball inthe air.” Once the conversation lags and the ball drifts to the ground,I pose another question. On the other hand, I let the students con-tinue to make comments until it appears that everyone who wishes tocontribute has done so.15 Many of the students are hesitant to con-

13 See generally Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theoryand the Teaching of Social Justice in Law School Clinics, 2 CLINICAL L. REV. 37 (1995)(explaining the function and value of experienced based learning for adult students).

14 See generally Anzalone, supra note 12 (explaining key components of the learningexperience and the role of the professor as modeling self-reflection and facilitating discus-sion as a member of the group).

15 See generally Deborah J. Cantrell, Teaching Practical Wisdom, 55 S.C. L. REV. 391(2003) (emphasizing active participation and reflection as an integral part of adult legal



tribute at the beginning of the class but grow increasingly dynamic asthe conversation progresses.

I use the beachballing technique because I want the students tounderstand that they will learn from one another and from their ownexperiences and interactions, not only from “top down” lecturingfrom their professor.16 After the first few questions, the students un-derstand and take on the responsibility for forwarding the discus-sion.17 They encourage their partners first, and then their otherclassmates to share with them their thoughts about telling a personalstory to someone they did not know before, someone who perhapswas very different from them in terms of race, gender, age, or previousexperience.18

Once the students are comfortable in sharing feelings with theirclassmates, we move to the next level of discussion. Again, I lob“beach balls” into the group. I ask the students how they felt whentheir story was being told. The students are surprisingly forthcoming.Students tend to first disclose feelings of embarrassment and concernfor what others will think of them. Next, they say that it “didn’t soundthe same” when someone else was telling it. One student, Samantha,expressed it this way,

Listening to someone else tell my story was really weird. The thingsthat Debra emphasized made me re-evaluate the way I told the storyand my reasons for telling the story. It showed me how powerfulperception can be and how two people can perceive things sodifferently.”

education,). See also Paula Lustbader, Seven Principles for Good Practice in Legal Educa-tion. Principle 7: Good Practice Respects Diverse Talents and Ways of Learning, 49 J. LE-

GAL EDUC. 448 (1999) (discussing techniques for involving all types of adult learners,particularly through participation and reflection). Courses in trial advocacy typically drawstudents who are outspoken and assertive and may intimidate more passive classmates ifthe professor does not consciously provide an opportunity for the quieter students to havetheir say.

16 Cantrell, supra note 15 at 391(further demonstrating how providing opportunities forreflection on lessons learned is an essential part of experiential learning).

17 See generally Quigley, supra note 13 (discussing the importance of experiencedbased learning and how active participation in a learning experience provides students witha much more concrete connection to practical problem solving rather than traditional pas-sive learning). Although the students are initially discomfited by the silence and by thefact that I am not lecturing, they quickly rise to the challenge and begin to provide com-ments. Experiencing this learning technique early in the semester, allows the class to bemuch more comfortable in providing feedback later in the semester on simulated trialexercises.

18 See generally Okianer Christian Dark, Incorporating Issues of Race, Gender, Class,Sexual Orientation, and Disability Into Law School Teaching, 32 WILLAMETTE L. REV. 541(1996) (identifying the importance of discussing issues of diversity in the law school class-room to develop open minded attorneys who are better listeners and can therefore betterrepresent their clients).



I ask if the person telling the story made any mistakes. Studentsbegin by sharing factual details that were wrongly told, such as names,ages, or events that were out of order. The “teller” of the story oftenapologizes. I ask how the student felt when the mistake was made.Some students dismiss the inaccuracies as unimportant to the story;others express frustration that their partner was not paying enoughattention or that they were not clear in describing the events. Mostplace the “blame” for inaccuracies on themselves, “I don’t think I wasvery clear when I was telling you,” or on the complexity of the infor-mation, “Nobody could be expected to remember all the names of thepeople in my family.”

On the other hand, the tellers of the story apologize for not pay-ing close enough attention and for making mistakes. Tony summed upthe feelings of many of the students,

There is a lot of pressure telling someone else’s story. I wanted tomake sure I did a good job. I wouldn’t have worried about telling myown story so much, but I wanted to let everyone know how much Ithought about Umar and what I learned about his struggles to cometo this country.

Interestingly, the most animated conversations about accuracy in-volve not factual details, but the recitation of the emotional compo-nents of the stories. A student will say, “You said that I admired mysister - but that is not what I told you. I said that she never took meseriously.” The “teller” may respond, “I know that is what you toldme, but I could tell that you wanted her to take you seriously becauseyou thought so highly of her.” This type of comment invariably leadsother students to express what “they could tell” that was either not“told” or is now being explicitly denied by their partner. Eventually,someone will say, in exasperation, “So, you think you know better thanI do what I was thinking? How do you know what I was feeling? It ismy story, not yours!”

This is a critical juncture in the exercise and leads naturally to adiscussion of both interviewing skills and client-centered representa-tion. “Whose story is it?” I ask the students. I inquire of the personwho told the story how he or she “could tell” what the emotions wereby listening to the story. The students will begin to discuss body lan-guage, tone of voice, and choice of words.19

It is important to give the person whose story was being told an

19 See generally Jeffrey Krivis, The Art of Attorney Mediation: 10 Ways to Improve YourLaw Practice Using Negotiation Skills, 62 J. DISP. RESOL. 22 (2007) (highlighting the im-portance of not only listening but using intuition to gather vital information from bodylanguage).



opportunity to respond to the assertions about what his or her tone,body language and choice of words “told” the listener about his story.The student may accept the “trueness” of the emotions conveyed ormay feel that unwarranted assumptions are being made. Occasionally,a student will express surprise at learning that a particular mannerism,gesture, tone, or choice of words conveyed an emotional message toothers that the student believes is accurate but was deeply hidden, orcontinues to feel is inaccurate.

We discuss the stories in which the teller added observationsabout his or her own family, values, or observations. Did these addi-tions change the original story? Make a new story? Did it becomethe story of the teller as opposed to the partner? Did the changesaffect how the class felt about either partner? Both partners?

I conclude this part of the class discussion by asking the studentswhether they would have changed the story they picked if they knewit would be told to the entire class. Interestingly, it is generally thestudents who told the more mundane or amusing stories who nowwant to tell a more serious or revealing one. One student said,

I am always the class clown and I told a story that I knew wouldmake everyone laugh. But when Christa told my story, I just thought‘why don’t I just grow up?’ I wish that I had told an important story,so that people would know that I’m not just a joke.”

Another student, a black, single mother, wrote this reflective note tome,

I feel like I should have shared a more personal experience becauseother people did. Most of my life experiences have been negative, orat least perceived by me to be negative. I wanted to share a positiveexperience and that’s what I did. But, after hearing the people in thegroup tell stories I felt bad because their stories were negative, aboutloss, but were told in a positive manner, about how they learned orbounced back. I wish I had told a story like that about my life.20

I ask the students whether they now feel differently about theirclassmates and, if so, how? The students are aware that the exercisemakes them see their classmates more as individuals. Danielle put itthis way,

20 In addition to the class discussion, I tell students that they may come to see me, callme, or send me an e-mail at any time to discuss anything about the exercise or anythingelse that happens in class. In addition, one of the questions on the end-of-semester evalua-tion asks the students to reflect on the storytelling exercise. Some of the comments I havequoted in this article come from these evaluations.



I never really care who is in my classes. There is always the jerk whoknows everything, the suck-up, the idiot who never gets anything, andthen a whole bunch of people that I can’t even remember. This isdifferent. Now when I see these people in class and in the cafeteria,I’ll remember their stories”21

Another student commented,

We learned a little bit about each person as an individual and it madestrangers into acquaintances immediately. This made it easier tostrike up friendships and work with each person later.

D. Teaching Client-Centered Representation

Once the students have had an opportunity to process their class-mates’ comments, I ask them how they think the exercise relates towhat we will be doing in the trial advocacy class.22 Almost always, thestudents who respond indicate that speaking in front of an “audience”will make them more comfortable or skilled in the courtroom simula-tions. A few even draw an analogy between the listening group and ajury.

At least one or two students each semester comment that theyare “bonded” with classmates as a result of the experience, and thatthis feeling of closeness will make it easier to perform the lab exer-cises. “Now that everyone here knows what a fool I made of myselfwhen I asked my wife to marry me, I won’t be so embarrassed if Iscrew up on my opening statement.”

By and large, the students see the exercise as an “ice-breaker” orparty game designed to give them a “taste” of oral advocacy skills andan opportunity to get to know their classmates a bit better. A couplehave even thanked me for allowing them this “gradual” immersioninto the class, as opposed to “throwing them right in” by requiring adirect examination or opening statement during the first class periods.

In short, during the reflective discussion period immediately fol-lowing the exercise, the students are focused exclusively on them-selves and their prospective ability to succeed in the class.

On their own, the students do not make the connection betweenthe person whose story they told and the client in a trial. I specificallytell them: “What we do as lawyers, inside a courtroom and out, is

21 This point is exemplified by an ancient Chinese proverb, “Tell me, I forget. Showme, I may remember. Involve me, and I understand.” Fran Quigley, supra note 13, at 50.

22 See generally Linda S. Anderson, Incorporating Adult Learning Theory Into LawSchool Classrooms: Small Steps Leading to Large Results, 5 APP. J. L. 127, 145-46 (2007)(“Adults learn better when they can actively participate in and reflect on the skills they areseeking to gain.”).



function as the “teller” of our client’s story.” When I say those magicwords, I can see the “light bulb” go on, and students nod and murmurin agreement.

Drawing on the comments the students made in the earlier dis-cussion, the class is then able to have a more focused conversationabout what it means to represent someone and to tell their story.23 Ipoint out that the students were all able to choose the story aboutthemselves that they wished to tell. Although we only had, in essence,a “snapshot” of their life at a given moment in time, each student wasable to go through his or her “photo album” and select an image thatshowed them in a positive light. In addition, each student could insurethat the only details that we had about the event were those theychose to divulge, i.e., they could “crop” the picture before it wasshown.

In contrast, I explain to the students, our clients generally cometo see us about a particular “story” or legal problem. Often, the clientis upset, embarrassed, or devastated by the circumstances. In mostcases, there will be an adversary painting the client in an unflatteringlight and evidence which either corroborates or contradicts the client’sversion of the events. The “snapshot” of our client is one over whichhe or she may have very little control, and which may be out of focusor distorted. Further, the picture may not be at all representative ofthe rest of the client’s life.

I take this opportunity to go back to the demographic issues wediscussed earlier and how similarities and differences can affect theattorney-client relationship. Did they choose which stories they toldor change their stories in any way due to their partner’s race, age,gender, or other real or perceived similarity or difference? Were anyof them surprised at the story their partner told? Did they changetheir impression of their partner as a result of the story? Did theyworry that their partner might have biases that would affect how theyheard the story?

One student in my class a few years ago, Jalessa, was an outgoing,full-bodied black woman with a booming voice. Her partner, Mara,was a willowy, soft-spoken white woman, who sat with her head bent,her long brown hair covering her eyes, while Jalessa empathically toldher story. When I asked if anyone changed their impression of theirpartner during the exercise, Jalessa shared the following:

I picked Mara because you told us to find someone that we didn’t

23 See Anderson, supra note 22, at 127 (illustrating the importance of providing stu-dents with immediate feedback and reflection to facilitate understanding of the material incontext).



know. I have seen Mara in the halls the last two years, and she was inone or two of my classes, but I never spoke to her before the night ofthe lab. I figured we had nothing in common. She’s white, she’sbeautiful, and she wears expensive clothes. When she started tellingme about her problems with food, I couldn’t believe it. We are thesame person! It was like, ‘I don’t believe this. You felt this way, too?’Obviously, she has dealt with it a lot better than I have, but she reallyencouraged me to keep working at losing weight, not for other peo-ple, but for myself. I felt so much better after talking to her. Quitefrankly, I never thought a white girl would understand me. I stilldon’t think a white man would.

Age differences and prior work experience are very significant tomost law students. One student commented,

Anne is as old as my mother. I kept expecting her to say the thingsthat my mother would have said if I told her about drinking and al-most crashing the car.

Another student expressed his feelings about his partner’s story in re-lation to his own lack of experience,

Robert has already had two careers and I haven’t even figured outwhat I want to do when I graduate.24

Although we have a number of “non-traditional” law students inthe class every year, a majority of the students are in their twenties.We discuss the fact that, at least for the first decade of their practice,many of the people they come in contact with, including senior part-ners, jurors, court personnel, and particularly, clients, will all be olderthan they. What impact will that fact have on their representation?On their clients’ trust? On their comfort level? On their ability torelate?

Once the students finish discussing how their feelings about theirpartners changed as a result of the storytelling exercise, I ask how theywould have felt if, instead of saying “switch” at the end of the first tenminutes, I had ended the exercise at that time with only one partner inthe pair having told his or her story. How would they then have feltabout the exercise, particularly the “sharing” of the story with the rest

24 See generally Anderson, supra note 22 (discussing the value of timely peer to peerfeedback and how that can deeply resonate with adult learners). Students also begin torecognize that what they learn from the experiences of their classmates can be used bythem in the future in working on behalf of their clients. For example, a young student withno previous work experience may develop techniques to discuss business matters and anolder student may learn tips on “connecting” with juvenile clients from his much youngerclassmates.



of the class?The students begin to protest.

That wouldn’t be fair.That would be terrible!I would never have come back to class.They would have power over us.That would make the ones who told so much more vulnerable.I would resent you (referring to me as the professor).I would resent my partner.Well, we wouldn’t be partners if only one person told!

Once the shouts of indignation subside, I ask, “How do you thinkour clients feel when they share with us and we do not reciprocate?”Again, light bulbs, and a connection is made about what it is that wedo as attorneys, and how what we do can affect our clients. We brieflytalk about power considerations in the attorney-client relationship,and what and how much is appropriate to share with clients. I let thestudents know that the answers to these questions involve issues ofconfidentiality and professional standards of behavior as well as issuesof trust and establishing rapport. I tell them that we will not be ableto explore all of these issues within the time constraints of our class,but that they need to be aware of them as they begin their legalcareers.

We then continue the discussion with questions about whetherthe exercise would be different if the two participants spoke differentlanguages and an interpreter was needed to assist in the communica-tion; how the conversation would be different if one of the partici-pants was free to leave at any time but the other was confined to thechair or room; and what impact it would have if the story being toldhad no meaning to the listener because of cultural or backgrounddifferences.25

We discuss different client populations that students might en-counter in the law school clinics, in their field placements (extern-ships), or when they are in practice. Many of the students will bedealing with immigrants, non-native English speakers, clients withphysical and mental disabilities, and clients who are incarcerated. Stu-dents will also be dealing with clients who do not share their cultural

25 See generally Susan Bryant, The Five Habits: Building Cross-Cultural Competence inLawyers, 8 CLINICAL L. REV. 33 (2001) (emphasizing the importance of respecting andpreparing for cultural differences between attorneys and their clients). It is important inthis context not to limit the discussion to racial or ethnic differences, but to make theconversation as broad based as possible, touching on issues such as religious background,developmental or mental disabilities, educational disparity and language barriers.



or class background.Again, I stress to the students that we are barely scratching the

surface of the types of considerations that are crucial to establishingand maintaining a rapport with clients that will allow for meaningfulrepresentation. The students must understand that the skills and tech-niques which they are using for the first time will be modified andrefined throughout their professional careers. The ability to be bothself-aware and empathic to clients is a life-long endeavor, a skill thatthe best attorneys are constantly striving to improve.

E. Making Confidentiality Real

The stories shared in class can be very personal and sensitive innature, and the students are sometimes hesitant to tell them. I ask thestudents, “Did any of you feel uncomfortable telling the story?” Al-most always, a student will say, “I didn’t think I should tell. It wasJohn’s story and I didn’t know if he would want the whole class toknow.”

When I ask why the student told the story if he or she felt that itshouldn’t be shared, the invariable response is, “Because you told meto.” I then inquire, “What do you think would have happened if yousaid, ‘no’?” Silence. “Is that the test? If someone tells you to disclosesomething that is a secret, do you do it?” Silence. “Do you think youcould have asked John’s permission to tell the story?” Silence. Then,“If John thought I wouldn’t tell, then I shouldn’t have told.”

The students’ realization of the disclosure problem effortlesslyleads into a discussion of the ethical requirement of attorney-clientconfidentiality and the importance of the client’s subjective expecta-tions.26 We discuss under what circumstances an attorney might bepressured to reveal a confidence and what the ethical response shouldbe. In addition, we talk about how to explain the concept of confiden-tiality and its waiver to our clients in terms that they can understand.

I also share with the students that I feel ambivalent at timesabout utilizing the exercise, even though I believe that it has greatpedagogic value. Once, a student, John, was glowering at me, armslocked across his chest, slumped in his seat, hat pulled low over hiseyes, after the exercise in which he told his partner’s story of a painfuldivorce involving infidelity. “John, would you like to share how youare feeling?”

26 See Model Rules of Prof’l Conduct R. 1.6 (1983); see generally Gregory C. Sisk,Change and Continuity in Attorney-Client Confidentiality; The New Iowa Rules of Profes-sional Conduct, 55 DRAKE L. REV. 347 (2007) (highlighting the importance of confidential-ity as the foundation of a trusting attorney-client relationship).



You tricked us! You should have told us why we were hearing thestories. You knew what was going to happen, but we didn’t. It isn’tfair!

Fair. Ethical. Professional. Moral. We discuss the difference be-tween these terms, both from a legal and from a practical and ethicalstandpoint. We discuss the power differential between me as a profes-sor and them as students and compare it to the roles of attorney andclient. Usually, at least one of the students shares that he or she waswilling to give me the “benefit of the doubt” and trusted that I had a“good reason” for the exercise, and that was justification enough to goalong with the instructions. This conversation, their perception thatthe exercise would lead to a benefit for them, leads naturally to thenext topic, specifically instructing the students in interviewing skillsand avoiding the pitfalls of the DMV Interview.

F. Teaching Interviewing Skills: The “DMV Interview” Revisited

It is always the case that none of the students take notes duringthe storytelling exercise. I ask them whether that was a conscious de-cision on their part. Usually a student will say, “Well, if I knew that wewere going to have to tell the story, I would have, so that I wouldn’tmake any mistakes or forget anything.” Most of the students, though,comment that they wanted to pay attention or that it would be dis-tracting to take notes. One student expressed,

I think that would have made the whole thing useless. The importantthing was to understand who Jessica was. I got more out of her facialexpressions than her words, and I wouldn’t have been able to writethose down. If I had been writing the words, I would have missed theexpressions.

Having already drawn the connection between the storytellingexercise and representing real clients, the students want to know ifthey “should” take notes when the exchange involves an attorney-cli-ent exchange. They understand that they may have to refer back tothe information collected, that they may have dozens of clients andthat their representation of a client may extend over a long period oftime.

Again, I share with my students that the difficulties that they per-ceive between the desire to make a connection with a client and theneed to obtain and retain information is one that is experienced byattorneys on a regular basis.27 I stress that they need to develop the

27 See generally Melissa L. Breger, Gina M. Calabrese & Theresa A. Hughes, TeachingProfessionalism in Context: Insights From Students, Clients, Adversaries, and Judges, 55



skills to find a balance between these seemingly competing goals.Students are generally frustrated by the tension between the law-

yer wanting and needing to obtain and preserve detailed informationand the client’s potential negative reaction to note-taking during theinterview process. We brainstorm. We discuss the DMV Interview.“Why aren’t you offended when you are asked questions by the bu-reaucrat at the DMV office?” “Because I got a driver’s license.” Thestudents appreciate that they are not offended or suspicious whenasked for demographic information which might otherwise seem in-trusive if they perceive that they are receiving a benefit, e.g. a driver’slicense.

We discuss again how our clients, because of who they are andwhat experiences they may have had with the police, immigration,probation, or other agencies, might feel or react differently to thesame types of questions.28 “Why might they be afraid?” “Who couldget the information?” “What could it be used for?” We then brain-storm. “So, how do you think you could make your client feel bet-ter?” “Explain why I needed to take notes?” “Yes!”

In fact, when questioned, in character, at the Trial Practice Insti-tutes, the actors all told their lawyers that they wanted them to makeeye contact, LISTEN to them, explain why they were asking questions,show them what they were writing down, and explain what was goingto happen next. In short, they were seeking a human connection, sothat their stories could be told.29

I use beachballing again to let the students discuss what theyliked about the exercise. They appreciate how much information theywere able to glean in ten minutes. How much they learned from eyecontact, body language, facial expressions, and word choice. Theycomment on how much they would have missed if they were takingnotes and how nervous they would have felt if someone were takingnotes when they spoke.

S.C. L. REV. 303 (2003) (illustrating the challenges of balancing professionalism with theneed to build trust with the client though different interviewing techniques). I also sharewith my students that I use this same exercise at Trial Practice Institutes attended by veryexperienced attorneys and that those lawyers exhibit the same difficulties.

28 See generally Susan Bryant, supra note 25 (demonstrating the danger in assumingthat clients attach the same cultural meaning to legal vocabulary and illustrating how suchassumptions must be overcome to develop better client rapport through earnest listeningand cultural awareness). Again, the conversation needs to be broad enough to also addressclient assumptions based on additional factors such as, educational level, language skills,and developmental or mental disability.

29 See generally Linda F. Smith, Client-Lawyer Talk: Lessons From Other Disciplines,13 CLINICAL L. REV. 505 (2006) (emphasizing the importance of deep listening to establisha trusting attorney-client relationship in the context of the client interview as a cooperativeconversation).



On the other hand, we talk about how difficult it must be if youhave dozens of clients and need to keep all of their files organized andhow much information you need to do a proper investigation andmeet with witnesses. What type of demographic or factual informa-tion is necessary for pleadings such as a bail application or motion tosuppress? How is it possible to reconcile these competing demands?

Inevitably, the students come up with almost identical solutionsto those suggested by the actors at the Trial Practice Institutes. Weidentify what would make them feel comfortable and respected.

Here are the rules that my last class developed: First, make eyecontact and introduce yourself to the client. Shake hands or touch theclient in some way to establish a human connection. Make sure thatthe client understands that you are his or her attorney and are there tohelp and be his or her advocate; don’t assume that the client knows.Give the client a card with your name and phone number. Then, lis-ten to the client without looking away or taking notes. Pay attentionnot only to the client’s words but to his or her tone, body languageand affect.30 Try to determine the client’s level of education, sophisti-cation and understanding and whether he or she is suffering from anyphysical or emotional problems.

Then, explain to the client why it is necessary to take notes andwhat the notes will be used for, e.g. “to ask the judge to let you gohome to your children.” Let the client see what is written on the legalpad. Ask permission. Say to the client, “I need to go see the wit-nesses. Is it O.K. with you if I write their names down so that I cangive them to my investigator?” Tell the client who will see the notes,e.g. “only the other attorneys in our firm and our investigator.” Readwhat you have written back to the client and ask if it is correct. Thankthe client. Tell the client when you will be back to visit if he or she isin custody or make another appointment if the client will be coming toyour office. Ask the client if he or she has any questions or if he orshe would like to take any notes or write anything down before youleave. Tell the client how to get in touch with you if he or she hasquestions or concerns. Let the client know if a family member can calland speak with you and what information you can or cannot share.

G. Student Reflections on the Exercise

At the end of the semester, the students complete an extensiveevaluation of the trial advocacy class. One of the questions on the

30 See generally Gay Gellhorn, Law and Language: An Empirically-Based Model for theOpening Moments of Client Interviews, 4 CLINICAL L. REV. 321 (1998) (emphasizing howimportant it is to be aware of non-verbal cues from clients, and how missing such cues cannegatively affect the ability to establish a trusting relationship with the client).



evaluation concerns the storytelling exercise. The students are askedto describe what they learned from the exercise and if they felt it wasuseful to have the experience at the beginning of the semester.

The responses from the students are wide-ranging. We spend agreat deal of time during the semester discussing interviewing skills,client-centered representation, issues of diversity, use of theory andtheme in trial, and the power of detail and description in conveyingemotion in witness examination, opening statements and closing argu-ments. As these topics are discussed, I relate them back to conceptsof telling the client’s story to the jury, using verbal and non-verbalcommunication, and being aware of ethical considerations at all times.

Some students see the direct correlation between these classroomdiscussions and the initial storytelling exercise. Tony expressed it thisway in his evaluation,

I learned to be attentive, as a lawyer should, listening to a client’sproblem for the first time. I tried to learn to place myself in the roleof a lawyer meeting with my client for the first time and tried to honein on listening skills.

Many of the students value the storytelling exercise because ithelps them present more persuasive examinations or arguments.

I knew that I had to make my closing argument into a story so thatthe jury would remember it. I still remember the stories from the firstday of class. I remember you telling us that seeing something from adifferent perspective is key and I wanted the jury to see it from myclient’s perspective because it was his story, not mine.

A few students persist in viewing the exercise as a party game forthe first day of class.

I like that it was at the beginning of the semester. I think that it mademe feel closer with my class. I have never before said hello to every-one in the hallway from a class after such a short amount of time.

Many students value the lessons on confidentiality. Mark wrote,

I learned that if you think something you are being asked to do by thejudge is questionable, or may harm your client or relationship withthem, don’t be afraid to challenge (nicely of course).

The comments on telling the client’s story demonstrate that thestudents are able to learn this critical concept. Sabrina wrote,

I felt it gave me a wonderful perspective on what it would be like to



be a client. Having my story told and told wrong made me cringeeven though it was unimportant in the scheme of things. It will makeme more careful with real clients.

John put it this way,

It was an experience where we got to see our story told by anotheradvocate – exactly the same situation our clients will be in.

Curtis specifically addressed interviewing techniques,

Sharing personal information with your client helps facilitate/estab-lish rapport with your client. It establishes a common bond with yourclient and makes you more approachable. Also, it takes the spotlightoff them and turns you from an inquisitor to a conversationalist.

IV. CONCLUSION

Experienced practitioners know that establishing rapport andgaining trust is critical to effective client representation. Unfortu-nately, even though they are able to articulate these goals, many areunable to effectively achieve them in an initial client interview.Teaching these skills in the law school environment will enhance bothclinical representation and future practice. Guiding students awayfrom the pitfalls of the “DMV Interview” to effective Client-CenteredRepresentation through the use of Storytelling is one way to “turnthem from an inquisitor to a conversationalist” and move them alongthe path to effective and successful client-centered representation.

1

SECOND CIRCUIT UPDATE AND

GUIDELINE AMENDMENTS I. SECOND CIRCUIT UPDATE

1

A. Guilty Pleas

United States v. Robinson, 799 F.3d 196 (2d Cir. 2015) (Winter,2 Livingston, Chin, JJ.) (appeal

from EDNY): Sufficient factual basis existed for defendant’s guilty plea to charge of aiding and

abetting the brandishing of a firearm during and in relation to a crime of violence.

B. Statutes of Limitations

United States v. Heinz, 790 F.3d 365 (2d Cir. 2015) (per curiam) (panel: Carney, Lohier, and

Winter, JJ.3) (appeal from SDNY) (petition for cert. filed with Supreme Court Oct. 2, 2015;

response due Dec. 7, 2015): Defendants’ wire fraud offenses “affected” three banks that acted as

co-conspirators, extending the statute of limitations for those offense to ten years under 18

U.S.C. § 3293(2).

United States v. Rutigliano, 790 F.3d 389 (2d Cir. 2015) (Jacobs, Chin, and Wolford, JJ.) (appeal

from SDNY): Receipt of ongoing fraudulent disability annuity payments satisfied the overt act

element of conspiracy, thereby establishing the continuance into the limitations period.

C. Speedy Trial

United States v. Bert, 801 F.3d 125 (2d Cir. 2015) (Pooler and Hall, JJ.) (dissent by Jacobs, J.)

(appeal from EDNY): Dismissal of indictment without prejudice for violation of Speedy Trial

Act was abuse of discretion. Remanded with instructions to dismiss the indictment with

prejudice.

D. Venue


from SDNY): Scheme to violate the health care fraud statute was continuing offense for which

venue for prosecution was proper in any district in which all or part of the offense took place.

Substantial contacts test did not apply to venue determination.

E. Actual or Constructive Amendment to Indictment

1 Case descriptions were adopted, often verbatim, from Westlaw’s synopses.

2 The first judge listed in each case entry is the author of the decision. All judges are listed simply by their

surnames, without reference to whether they are active Second Circuit judges, senior Second Circuit judges, or

district court judges sitting by designation. 3 In the case of per curiam opinions, the judges on the deciding panel are listed alphabetically by surname.

2

United States v. McGinn, 787 F.3d 116 (2d Cir. 2015) (Parker, Hall, and Livingston, JJ.) (appeal

from NDNY): Government’s use of excerpts from letter did not constitute constructive

amendment or prejudicial variance of indictment.

United States v. Pierce, 785 F.3d 832 (2d Cir. 2015) (Chin, Kearse, and Wesley, JJ.) (appeal

from SDNY): A supplemental jury instruction stating that membership in a racketeering

enterprise was not required for a separately charged narcotics conspiracy did not constructively

amend the indictment.4

F. Brady

United States v. Cacace, 796 F.3d 176 (2d Cir. 2015) (per curiam) (panel: Hall, Jacobs, and

Pooler, JJ.)(appeal from EDNY): Defendants were not prejudiced by government’s failure to

disclose statements from confidential source, and thus no Brady violation resulted from

nondisclosure.

G. Expert Testimony

United States v. Romano, 794 F.3d 317 (2d Cir. 2015) (Kearse, Livingston, and Carney, JJ.)

(appeal from D. Conn.): District court properly admitted testimony of two numismatic experts

regarding the grading and valuation of coins sold by defendants’ company.

H. Miscellaneous Evidentiary Issues


from NDNY): Admission of letter authored by one defendant during cross-examination of

another defendant was harmless error.

I. First Amendment


from SDNY): Admission of rap video and images of defendant’s tattoos did not violate

defendant’s First Amendment right to free speech.

J. Fourth Amendment Searches and Seizures

United States v. Bershchansky, 788 F.3d 102 (2d Cir. 2015) (Chin, Winter, and Oetken, JJ.)

(appeal from EDNY): Federal agents exceeded the scope of a search warrant by searching an

apartment not specifically listed in the search warrant. Good-faith exception to the Fourth

Amendment exclusionary rule did not apply to preclude suppression of evidence obtained as a

result of warrantless search.


Pooler, JJ.)(appeal from EDNY): Defendant’s wife voluntarily consented to warrantless search

4 This holding is also listed in the section on jury instructions.

3

of her home when she allowed government agent into her home for the purpose of viewing and

borrowing family photographs. Agent acted in her personal capacity when she removed address

book and photographs from defendant’s home without permission, and thus removal without a

warrant did not violate defendant’s Fourth Amendment rights. Even assuming government’s

search of address book violated defendant’s Fourth Amendment rights, admission of evidence

derived from the address book was harmless.

United States v. Diaz, 802 F.3d 234 (2d Cir. 2015) (Sack, Wesley, and Hall, JJ.) (appeal from

SDNY): Police officer had reasonable suspicion to support traffic-stop of tractor-trailer when he

twice observed several of the back wheels of the truck touch or cross the solid painted lane

separating the right lane of the highway from the right shoulder.

United States v. Levy, 803 F.3d 120 (2d Cir. 2015) (Lohier, Hall, and Meyer, JJ.) (appeal from

SDNY): Search and seizure of defendant’s notebook by customs officer at international airport

was justified by reasonable suspicion where defendant was target of criminal investigation into a

series of stock manipulation schemes.

United States v. Thomas, 788 F.3d 345 (2d Cir. 2015) (Cabranes, Winter, and Raggi, JJ.) (appeal

from D. Vt.): Neither fact that it was a private entity that had created computer software used by

law enforcement to identify internet protocol addresses of computers sharing files that were

thought to contain child pornography nor commercial name of software was material information

required to be included in search warrant affidavit in order for warrant to be valid. The district

court did not clearly err in its finding that the software was reliable.

United States v. Watson, 787 F.3d 101 (2d Cir. 2015) (Rakoff, Calabresi, Hall) (appeal from

SDNY): Officer could not have reasonably believed that defendant was robbery suspect for

whom officer was searching. Further, the district court’s finding that the robbery suspect and

defendant did not in fact look alike was not clearly erroneous.

K. Fifth Amendment: Due Process

United States v. Allen, 788 F.3d 61 (2d Cir. 2015) (Chin, Walker, Lynch, JJ.) (appeal from D.

Vt.): Any error in district court conducting preliminary orientation with jury panel outside

presence of defendant did not fundamentally undermine fairness of trial. Assuming defendant

had right to be present, defendant waived that right.


from SDNY): Stored Communications Act did not violate defendant’s Fifth Amendment due

process right to present evidence.

L. Sixth Amendment: Confrontation Clause


from SDNY): Stored Communications Act did not violate defendant’s Sixth Amendment right to

confront adverse witnesses.

4

United States v. Rivera, 799 F.3d 180 (2d Cir. 2015) (Wesley and Calabresi, JJ.) (dissent by

Jacobs, J.) (appeal from EDNY): Exclusion of cross-examination of victims regarding their prior

work in sex industry did not violate Sixth Amendment.


(appeal from D. Conn.): Defendants waived their Confrontation Clause challenge to admission of

spreadsheet setting out grades that independent coin grading service assigned to coins.

United States v. Yannai, 791 F.3d 226 (2d Cir. 2015) (Kearse, Jacobs, and Raggi, JJ.) (appeal

from EDNY): District court did not abuse its discretion in refusing to adjourn defendant’s trial

for more than one day, after defendant was hospitalized. District court did not abuse its

discretion in denying defendant’s request for a mistrial based on defendant’s absence. District

court did not abuse its discretion in determining that the interests of justice did not warrant a new

trial based on defendant’s absence.

M. Juror Issues

United States v. Parse, 789 F.3d 83 (2d Cir. 2015) (Kearse and Wesley, JJ.) (concurrence by

Straub, J.) (appeal from SDNY): Finding that defendant’s attorneys knew prior to trial that juror

was same person as suspended attorney was clearly erroneous. Defendant attorney’s alleged lack

of due diligence did not amount to waiver of defendant’s right to impartial jury. Determination

that defendant waived his right to be tried by impartial jury due to juror’s lying during voir dire

was plain error. Remanded for new trial.

United States v. Yannai, 791 F.3d 226 (2d Cir. 2015) (Kearse, Jacobs, and Raggi, JJ.) (appeal

from EDNY): Publicity of defendant’s attempted suicide did not warrant grant of new trial.

N. Jury Instructions


from NDNY): District court’s erroneous statement that defense of good faith was not applicable

to filing of false tax return charges was not plain error.


from SDNY): Decision to give uncalled witness instruction instead of a missing witness

instruction was not an abuse of discretion. A supplemental jury instruction stating that

membership in a racketeering enterprise was not required for a separately charged narcotics

conspiracy did not constructively amend the indictment.


Jacobs, J.) (appeal from EDNY): Error in jury charge on sex trafficking—omitting instruction

that standard was whether a reasonable person in victims’ circumstances would feel coerced

rather than whether victims themselves felt subjectively coerced—was harmless.


from SDNY): District court’s instruction regarding proving conspiracy by circumstantial

evidence not erroneous. Defendants not entitled to instruction regarding other definitions of

phrase “occupational disability.”

5

United States v. Veliz, 800 F.3d 63 (2d Cir. 2015) (Lynch, Leval, and Lohier, JJ.) (appeal from

SDNY) (petition for cert. filed with Supreme Court Oct. 20, 2015; distributed for conference

Nov. 13, 2015): Any error in jury instruction’s inclusion of ‘physical force’ element to witness

tampering charge did not affect defendant’s substantial rights.

O. Sufficiency of Evidence

United States v. Calderon, 785 F.3d 847 (2d Cir. 2015) (Wesley, Kearse, Chin, JJ.) (appeal from

SDNY): Evidence was not sufficient to show that the defendant knew that the victim of a gang

shooting was dead or dying at the time she drove the shooter out of the city. Accordingly,

defendant’s conviction of being an accessory after the fact to murder was reversed.


Pooler, JJ.) (appeal from EDNY): Evidence was sufficient to establish that defendant conspired

to murder victim to support his conviction for racketeering conspiracy.


from NDNY): There was sufficient evidence of defendants’ intent to defraud to support their

mail and wire fraud convictions, of defendants’ willfulness to support their securities fraud

convictions, and to support defendants’ convictions for filing false tax returns.

United States v. Parse, 789 F.3d 83 (2d Cir. 2015) (Kearse and Wesley, JJ.) (concurrence by

Straub, J.) (appeal from SDNY): There was sufficient evidence to support defendant’s mail fraud

conviction, although remand for a new trial was ordered due to juror issues (discussed above).

Defendant had argued that a new trial was not necessary because evidence was insufficient.


from SDNY): Evidence was sufficient to support convictions for conspiracy, racketeering,

murder, narcotics trafficking, and firearms offenses.


(appeal from D. Conn.): Evidence was sufficient to support defendant’s conviction for conspiring

to commit mail and wire fraud in the sale of coins.



Nov. 13, 2015): Jury’s finding that witness was reasonably likely to communicate with federal

law enforcement, as required for conviction under 18 U.S.C. § 1512, was supported by sufficient

evidence.

P. Sentencing

1. Initial sentencing


Pooler, JJ.) (appeal from EDNY): Trial evidence was sufficient to support determination by

sentencing judge that defendant was involved in additional murders other than the murders used

to support his conviction.

6

United States v. McCrimon, 788 F.3d 75 (2d Cir. 2015) (per curiam) (panel: Pooler, Lohier, and

Carney) (appeal from SDNY): As a matter of first impression, guidelines sentencing increase for

reckless endangerment during flight from law enforcement officer was not warranted based on

finding that defendant could have reasonably foreseen that his codefendant would recklessly

endanger others while driving getaway car. District court’s imposition of reckless endangerment

sentencing increase was plain error warranting remand and resentencing.


from NDNY): Defendant’s 180-month sentence for mail and wire fraud, securities fraud, and

filing false tax returns not procedurally or substantively unreasonable.


from SDNY): As a matter of first impression, rule of lenity required district court to deem

possession of a firearm count to be first conviction when imposing mandatory minimum

sentences.


Jacob, J.) (appeal from EDNY): Reasons for sentence enhancement were not fully stated.

Remanded for resentencing.

United States v. Robinson, 799 F.3d 196 (2d Cir. 2015) (Winter, Livingston, Chin, JJ.) (appeal

from EDNY): District court did not commit any procedural error in refusing to depart downward

from recommended guideline range for firearms defendant based on allegedly substandard

conditions of confinement at correctional facility where defendant would be incarcerated.


(appeal from D. Conn.): Defendants’ respective sentences of 240 months and 156 months were

substantively reasonable.

2. Loss Measurement/Restitution/Forfeiture


(appeal from D. Conn.): District court’s use of defendants’ respective gains as an alternative

measure of loss did not preclude court from finding that there were multiple victims of their

scheme. District court was required to give de novo consideration to magistrate judge’s

recommendations as to restitution and forfeiture.

3. After violation of supervised release

United States v. Aldeen, 792 F.3d 247 (2d Cir. 2015) (Chin, Cabranes, Pooler, JJ.) (appeal from

EDNY): District court plainly erred in failing to explain its sentence and remand was required

for a determination of substantive reasonableness.

United States v. Ortiz, 779 f.3d 176 (2d Cir. 2015) (per curiam) (panel: Parker, Pooler, and

Wesley, JJ.) (appeal from D. Conn.): Defendant could not collaterally attack his underlying drug

conviction or sentence which resulted in term of supervised release. District court correctly

determined maximum statutory term of imprisonment in imposing defendant’s post-revocation

sentence.

7

Q. Sex Offender Registration

United States v. Gundy, __F.3d__, 2015 WL 5313665 (2d Cir. Sept. 14, 2015) (Carney,

Katzmann, Hall, JJ.) (appeal from SDNY): District court dismissed indictment. Court of Appeals

reversed, holding that defendant was required to register from time Sex Offender Registration

and Notification Act (SORNA) became retroactive per Attorney General’s final guidelines.

R. Particular Offenses

United States v. Allen, 788 F.3d 61 (2d Cir. 2015) (Chin, Walker, Lynch, JJ.) (appeal from D.

Vt.): Specific knowledge of federal ownership not required for charge of conspiring to set fires

on public lands.



Nov. 13, 2015): Defendant, by soliciting witness’ murder, corruptly persuaded person with intent

to prevent communication of information relating to federal offense as required by 18 U.S.C. §

1512(b)(3), the witness tampering statute.

II. GUIDELINE AMENDMENTS5

A. Changes Effective November 1, 2015

1. Changes to the Fraud Guideline Involving Victims and Individual

Culpability

The United States Sentencing Commission (“the Commission”) made several significant

revisions to the economic crimes guideline of U.S.S.G. § 2B1.1. First, the Commission amended

the definition of intended loss in comment 3(A)(ii) to limit loss to the pecuniary harm “that the

defendant purposely sought to inflict.”

Second, the Commission made several changes to the victim-related provision in 2B1.1(a)(2),

reducing the number of victim-releated enhancements to a two-level increase for 10 or more

victims. However, the Commission added three new victim-based enhancements: (1) a two-level

increase for substantial hardship to one or more victims; (2) a four-level increase for substantial

financial hardship to five or more victims; (3) a six-level increase for substantial hardship to

twenty-five or more victims. In determining whether the offense “resulted in substantial

financial harm to a victim,” courts are instructed to considere whether the offenses resulted in the

victim: (i) becoming insolvent; (ii) filing for bankruptcy; (iii) suffering substantial loss of a

retirement, education or other savings or investment fund; (iv) making substantial changes to his

or her employment, such as postponing his or her retirement plans; (v) making substantial 5 This synopsis is based on a guideline amendment summary by Laura Mate of the Sentencing Resource Counsel,

the Commission’s notice to recipients of the current guidelines manual, and the Commission’s August 7, 2015,

notice regarding proposed amendments.

8

changes to his or her living arrangements, such as relocating to a less expensive home; and (vi)

suffering substantial harm to his or her ability to obtain credit.

Third, the Commission made a few additional victim-related guideline changes. It removed the

four-level enhancement for offenses that “substantially endangered the solvency or financial

security of 100 or more victims.” The Commission also changed one of the rules for undelivered

United States Mail. Finally, the Commission removed the upward departure provision for harm

to a person’s credit record in comment 20(A)(vi).

Finally, the Commission amended the sophisticated means language in Section 2B2.1(b)(10)(C)

to “the offense otherwise involved sophisticated means and the defendant intentionally engaged

in or caused the conduct constituting sophisticated means.”

2. Adjustment to Monetary Tables to Account for Inflation

The Commission made changes to the monetary tables in §§ 2B1.1, 2B2.1, 2B3.1, 2R1.1, 2T4.1,

5E1.2, and 8C2.4 to account for inflation. This is the first time the Commission has ever

amended the guidelines to account for inflation.

3. New Marijuana Equivalency for Hydrocodone Based on Weight Alone

The Commission voted to change the drug equivalency table of U.S.S.G. § 2D1.1 comment 8(D)

to treat hydrocodone like oxycodone: 1 gram of hydrocodone (actual) is equivalent to 6700

grams of marijuana. This raised the penalties on hydrocodone offenses to address the

rescheduling of hydrocodone from less-restricted Schedule III to the more-restricted Schedule II.

4. Additional Guidance for the Application of the Mitigating Role

Adjustment

The Commission made four significant changes to the mitigating role adjustment of U.S.S.G. §

3B1.2. First, the Commission rejected the Second Circuit’s interpretation of “average

participant,” and clarified that its meaning is defined by reference to those persons who

participated in the criminal activity at issue in the defendant’s case, not the typical participant in

a similar crime. Second, the Commission provided the following non-exhaustive list of factors a

court may consider when determining whether to apply a mitigating role reduction: (i) the

degree to which the defendant understood the scope and structure of the criminal activity; (ii) the

degree to which the defendant participated in planning or organizing the criminal activity; (iii)

the degree to which the defendant exercised decision-making authority or influenced the exercise

of decision-making authority; (iv) the nature and extent of the defendant’s participation in the

commission of the criminal activity, including the acts the defendant performed and the

responsibility and discretion the defendant had in performing those acts; (v) the degree to which

the defendant stood to benefit from the criminal activity. Third, the Commission clarified that “a

defendant who does not have a proprietary interest in the criminal activity and who is simply

being paid to perform certain tasks should be considered for an adjustment under this guideline.”

Also, “[t]he fact that a defendant performs an essential or indispensable role in the criminal

activity is not determinative.” Finally, the Commission amended the commentary to state that

individuals who perform a limited function “may receive” a mitigating role adjustment.

9

The Commission stated that it made these changes to identify issues that may have been

discouraging courts from applying a mitigating role adjustment.

5. Response to Circuit Conflict Over Whether a Prior Sentence Included in

a “Single Sentence” May Qualify as a Predicate Offense

The Commission amended the language of § 4A1.2 to resolve a circuit split. According to the

new language, a prior conviction that forms a part of a “single sentence” for purposes of criminal

history points counts as a predicate for career offender and other guidelines “if it independently

would have received criminal history points.” Importantly, if more than one prior conviction

within a group is a “crime of violence” or drug offense under § 4B1.2, only one may count as a

predicate offense.

6. Clarifying the Revisions to the Relevant Conduct Guideline

In an attempt to “set out more clearly the three-step analysis the court applies in determining

whether the defendant is accountable for acts of others in the jointly undertaken criminal

activity,” the Commission clarified that before a court may consider the acts and omissions of

others, it must find that they were (1) “within the scope of the jointly undertaken activity; (2) in

furtherance of that criminal activity; and (3) reasonably foreseeable in connection with that

criminal activity.” The Commission stated that this amendment was not intended as a substantive

change in policy.

B. Proposed Changes in Response to Johnson v. United States and Concerns About

Definitions Relating to the Nature of a Defendant’s Prior Conviction

1. Elimination of “crime of violence” residual clause and related revisions to

definition of “crime of violence” in §4B1.2(a)

The guidelines definition of “crime of violence” in § 4B1.2(a) was modeled after the statutory

definition of “violent felony.” This guidelines definition is used in determining whether a

defendant is a career offender under § 4B1.1(Career Offender), and is also used in certain other

guidelines. See, e.g., §§ 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive

Materials; Prohibited Transactions Involving Explosive Materials), 2K2.1 (Unlawful Receipt,

Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving

Firearms and Ammunition), 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary

Transactions in Property Derived from Unlawful Activity), 4A1.2 (Definitions and Instructions

for Computing Criminal History), and 5K2.17 (Semiautomatic Firearms Capable of Accepting

Large Quantity Magazine (Policy Statement)).

While the statutory definition of “violent felony” in section 924(e) and the guidelines definition

of “crime of violence” in § 4B1.2 are not identical in all respects—for example, they have

10

different “enumerated” clauses—their residual clauses are identical. The proposed amendment

amends § 4B1.2 to delete the residual clause.

In addition, the proposed amendment amends § 4B1.2 to clarify and revise the list of

“enumerated” offenses. While some of the offenses covered by the definition are listed in the

guideline (such as burglary of a dwelling, arson, and extortion, many other offenses covered by

the definition are listed in the commentary instead (e.g., murder, kidnapping, aggravated assault,

and robbery). The proposed amendment makes some revisions to the list of enumerated offenses,

moves all enumerated offenses to the guideline, and provides definitions for the enumerated

offenses in the commentary.

2. Use of state felony classification in determining whether an offense

qualifies as a “felony” under § 4B1.2

Under the career offender guideline, the court must analyze both the instant offense of conviction

and the defendant’s prior offenses of conviction. To be a career offender, the court must find (1)

that the instant offense is a felony that is a crime of violence or a controlled substance offense;

and (2) that the defendant has at least two prior felony convictions of either a crime of violence

or a controlled substance offense. See §§ 4B1.1(a) and 4B1.2; see also 28 U.S.C. § 994(h).

To implement the requirement that the offense be a “felony,” the definitions in § 4B1.2(a) and

(b) specify that the instant offense (whether a “crime of violence” or a “controlled substance

offense”) must have been an offense under federal or state law, punishable by imprisonment for a

term exceeding one year. The proposed amendment adds an additional requirement: the offense

must also have been classified at the time the defendant was initially sentenced as a felony under

the laws of the jurisdiction in which the defendant was convicted. If the jurisdiction does not

have a “felony” classification, the offense must have been given a classification comparable to a

felony classification.

3. Corresponding changes to the illegal reentry guideline, §2L1.2

The definition of “crime of violence” in § 4B1.2 is not the only definition of “crime of violence”

in the guidelines. In particular, § 2L1.2 (Unlawfully Entering or Remaining in the United States)

sets forth a definition of “crime of violence” that contains a somewhat different list of

“enumerated” offenses and does not contain a residual clause. It also sets forth a definition of

“drug trafficking offense” that is somewhat different from the definition of “controlled substance

offense” in § 4B1.2.

The proposed amendment would revise the definitions of “crime of violence” and “drug

trafficking offense” in § 2L1.2 to bring them more into parallel with the definitions in § 4B1.2.

Under the proposed amendment, the definitions in § 2L1.2 would generally follow the

definitions in § 4B1.2, as revised in these proposed amendments.

Fall 2015 CLE Materials - Federal Public Defender - Northern ...

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