The Department of Justice has obtained its second conviction in connection with the January 6 insurrection at the Capitol and its aftermath. A jury in the Eastern District of New York found a defendant guilty of threatening to assault U.S. officials based on a video he posted after January 6 called “Kill Your Senators” and advocating for protestors to return to the Capitol with guns. The conviction follows the first guilty plea stemming from the riots, with a member of the Oath Keepers pleading guilty two weeks ago to obstructing an official proceeding and entering a restricted building with a dangerous weapon.
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The DOJ recently issued a memorandum to BOP facilities expanding the number of inmates who are eligible for release to home confinement under the CARES Act. While neither the BOP nor the DOJ have published the memo yet, Keri Blakinger of the Marshall Project has obtained a copy of the memo and confirmed its authenticity with the BOP. Among other things, the new criteria allows more inmates with low-level disciplinary issues or Low PATTERN scores to obtain release to home confinement.
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The DEA has released its “National Drug Threat Assessment” for the Year 2020. The report contains an exhaustive review of topics such as the different sources for different drugs imported into the U.S., the price and purity levels of several controlled substances, data regarding where most drugs are trafficked or seized, consumption patterns, and other information that can be helpful to defense attorneys in drug cases.
Recent Supreme Court Opinions
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In a 5-3 decision, the Supreme Court held that officers who shot at a woman who was driving away had committed a “seizure” under the Fourth Amendment. The Court held that an officer’s conduct can constitute a seizure even if their use of force is from a distance, as long as the conduct involves a use of force and “objectively manifests an intent to restrain.”
SCOTUS Declines to Determine Fourth Amendment Standard For Border Searches, Leaving Circuit Split Intact
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The U.S. Supreme Court denied ceriorari to a petitioner seeking the Court’s determination as to what standard applies to Fourth Amendment searches at the U.S. border. The Court’s decision not to step in leaves in place a circuit split between courts that hold no probable cause or reasonable suspicion is required for law enforcement to conduct searches and those that hold there must at least be some degree of reasonable suspicion.
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In a per curiam opinion, a majority on the Supreme Court vacated a defendant’s death sentence and held that his trial counsel was constitutionally ineffective based on his failure to perform mitigation investigation, putting up mitigating evidence that backfired by bolstering the state’s case, failing to investigate the state’s aggravating evidence, and failing to present significant mitigating evidence that he could have discovered.
Recent Circuit Court Opinions
The Sixth Circuit held that the disparity between a defendant’s actual sentence and the sentence that he or she would have received if the First Step Act’s amendments applied can, along with other factors, constitute extraordinary and compelling reasons warranting a sentence reduction.
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The Eleventh Circuit affirmed the denial of a defendant’s motion under 2255. The trial court in the defendant’s case had erroneously instructed the jury that the defendant’s charge for Hobbs Act conspiracy could be a predicate offense for finding the defendant guilty of conspiracy to possess a firearm in furtherance of a crime of violence under 924(o). However, the defendant had procedurally defaulted on this claim by not bringing it up in front of the trial court or on direct appeal, and he could not show prejudice or actual innocence because the jury found him guilty of other predicate offenses that were “inextricable intertwined” with the Hobbs Act conspiracy count.
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The Eleventh Circuit affirmed a defendant’s convictions for armed robbery of five businesses. Among its holdings, the Court held that the trial court did not abuse its discretion in denying a motion to continue, it did not err in declining to excuse a juror for cause who was a probation officer, admission of geo-location data that was gathered as fruit of an unlawful search was harmless, an agent’s testimony regarding out-of-court statements was not hearsay since it was helpful to describe investigative tactics, and there was sufficient evidence to convict the defendant based on a modus operandi and pattern reflected in each of the five robberies.
The Federal Docket
The Federal Docket is a monthly newsletter providing lawyers and the community a summary of recent important decisions in the area of federal criminal law from the United States Supreme Court and the Circuit Courts of Appeal. The opinions are compiled, summarized and analyzed by Tom Church, an attorney in our firm’s federal criminal defense practice.