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.

In The News

  • Feds Announce 170+ Arrests in Dark Net Opioid Investigation

    The DOJ and DEA have announced the arrests of 179 people and the seizure of $6.5 million stemming from an international investigation targeting suspected opioid trafficking through the Darknet. Individuals have been arrested in 7 different countries on charges relating to selling opioids through the internet and will likely see additional charges such as money laundering.

  • Prosecutor Quits Presidential Commission on Law Enforcement, Citing “Tough on Crime” Bias

    Prosecutor John Choi, the elected head prosecutor of Ramsey County, Minnesota, has resigned his position on the Presidential Commission on Law Enforcement and Administration of Justice. The Commission was established under President Trump to study the social impact of policing and explore ways to improve policing. Choi cited the Commission's pro-law enforcement bias and "tough on crime" agenda in his resignation, foreshadowing that the Commission's recommendations and findings will likely inspire controversy.

  • NSA’s Mass Surveillance Program Under FISA Ruled Unlawful

    On September 2, 2020, the Ninth Circuit Court of Appeals issued an opinion that, while affirming the convictions of the defendants raising the appeals, held that the mass surveillance program operated by the National Security Agency (NSA) violated the Foreign Intelligence Surveillance Act (FISA) and was potentially unconstitutional under the Fourth Amendment. In 2013, Edward ...

  • Updated List of Compassionate Release Grants

    Attorney Tom Church has compiled a list of Compassionate Release grants and some of the key findings and information in the corresponding opinions. The list includes grants of release for inmates with specific medical conditions, inmates who have already tested positive for COVID-19 and/or recovered, inmates released from facilities that are reporting zero confirmed cases, and inmates whose request is based, not on COVID-19, but on their family circumstances or excessive sentences.

  • DOJ and FBI Announce FISA Reforms

    The DOJ and FBI have announced several measures to "build a more robust internal compliance program" overseeing the FBI's applications for warrants under the Foreign Intelligence Surveillance Act (FISA). Spurred by the president's criticisms of FISA and an Inspector General report critical of the FBI's use of FISA warrants, the reforms seek to "ensure the accuracy of FISA applications, as well as the active oversight of applications targeting elected officials, candidates for federal elected offices, and their staffs."

  • COVID-Fueled Growth in Telemedicine Could Lead to More Fraud Prosecutions

    Recent growth in the telemedicine field as a result of COVID-19 has prompted the government to take an aggressive approach in targeting suspected healthcare fraud. As more healthcare providers adapt to the new environment under COVID-19 and try to provide telemedicine services to their patients, there is a real risk that the government ends up targeting providers who are new to telemedicine and are simply making mistakes due to a lack of familiarity with the regulations. Further increasing this risk is the fact that the federal government has created "dozens of new billing codes" and waived certain limitations and regulations given the COVID-19 pandemic, making it harder for healthcare providers to know what is and isn't allowed in the rapidly changing new world of telemedicine.

  • U.S. Attorney in Southern District of GA Appoints Special Prosecutors for Fort Stewart Cases and Animal Cruelty Crimes

    The U.S. Attorney's Office for the Southern District of Georgia announced that two new Special Assistant U.S. Attorneys have joined their office--a full-time prosecutor from Fort Stewart and a SAUSA dedicated to prosecuting federal animal cruelty crimes. The Department of Justice announced that this is the first-ever dedicated prosecutor from Fort Stewart and only the second time that a U.S. Attorney's Office has added a dedicated animal cruelty prosecutor. The appointments signal a likely increase in prosecutions out of Fort Stewart and of animal cruelty crimes, such as the current investigation and prosecution into two alleged cockfighting rings in South Georgia.

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Recent Supreme Court Opinions

  • Andrus v. Texas (U.S. Supreme Court, June 2020)

    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.

  • Ramos v. Louisiana (U.S. Supreme Court, April 2020)

    In a patchwork opinion involving a lengthy discussion of stare decisis, a majority of the Court held that the Sixth Amendment right to a unanimous verdict in a criminal prosecution applies to the states through the Fourteenth amendment.

  • Kelly v. United States (U.S. Supreme Court, May 2020)

    In a unanimous opinion, the Supreme Court reversed the convictions of the Port Authority officials involved in the infamous "Bridgegate scandal," holding that their convictions for wire fraud on a federally funded program, predicated on their blocking off certain lanes as political retribution against an opposition mayor, were not supported by sufficient evidence because they did not involve a scheme "to obtain money or property."

  • Kansas v. Charles Glover, Jr. (U.S. Supreme Court, April 6, 2020)

    In an 8-1 opinion, the Supreme Court held that an officer has reasonable suspicion justifying a traffic stop when he runs a vehicle's license plate and learns that the registered owner's license has been revoked or suspended. The Court held that it is reasonable for an officer to assume that the vehicle's driver is the registered owner, even where the registered owner's license has been suspended, because the data shows that many individuals who have suspended licenses continue to drive anyway.

  • Kahler v. Kansas (U.S. Supreme Court, March 2020)

    The Supreme Court held that Kansas's insanity defense, which turns on whether the defendant was capable of understanding his conduct as opposed to understanding whether his conduct was morally wrong, did not offend due process. The Court stressed that the insanity defense changes in response to developments in mental health science and that state governments are better equipped to design the defense.

  • Shular v. United States (U.S. Supreme Court, February 2020)

    In a unanimous decision, the Supreme Court held a defendant's prior conviction under state law qualifies as a "serious drug offense" under the ACCA if the defendant's conduct involves "manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" as spelled out under the statute. In doing so, the Court rejected a categorical approach that would require courts to match the defendant's state offenses to a "generic offense."

  • McKinney v. Arizona (U.S. Supreme Court, February 2020)

    The Supreme Court held that allowing a state appellate court to reweigh the aggravating and mitigating factors in a capital case under Clemons v. Mississippi is a permissible remedy after a finding on collateral review that the sentence court failed to consider mitigating factors in violation of Eddings v. Oklahoma.

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Recent Circuit Court Opinions

  • United States v. Jeremy Zullo (2d Cir. September 2020)

    In a matter of first impression, the Second Circuit became the first circuit court to examine the effect of the First Step Act on the compassionate release statute, 18 U.S.C. 3582(c)(1)(A), and its counterpart U.S.S.G. 1B1.13. The Court held that the First Step Act gives district courts broad discretion to define what circumstances constitute "extraordinary and compelling reasons" warranting an inmate's release.

  • United States v. Christopher J. Abbate (5th Cir. August 2020)

    The Fifth Circuit affirmed several conditions of the defendant's lifetime term of supervised release as a sex offender, including conditions prohibiting him from possessing any pornographic materials, but held that a condition prohibiting use or possession of video games and gaming consoles was overbroad unless limited to consoles that allow internet communication.

  • United States v. Blair Cook (7th Cir. August 2020)

    Upon remand from the United States Supreme Court, the Seventh Circuit reconsidered the defendant’s conviction under 18 U.S.C. § 922(g)(3) in light of Rehaif v United States (2019) where the knowledge requirement applied to both elements including possession of a firearm and defendant belonging to a barred category. The Court vacated the defendant's conviction for unlawful drug user in possession of a firearm and held that the record established that the defendant knew he was a drug user but did not sufficiently establish that the defendant knew his use was illegal.

  • United States v. Thaddeus Beaulieu (5th Cir. August 2020)

    The Fifth Circuit vacated a defendant’s felony criminal contempt conviction due to prosecutorial misconduct when the AUSA expressed personal opinion on the merits of the case, made arguments based on facts not in evidence during the trial, and told the jury that any verdict other than guilty would disrespect the judge and the court. The Court held that the district court abused its discretion in entering the contempt conviction because the inappropriate remarks were textbook prosecutorial misconduct and denied defendant his due process.

  • United States v. Samuel Tanel Crittenden (5th Cir. August 2020)

    The Fifth Circuit affirmed the district court’s order granting defendant a new trial where the defendant's mistaken belief that a bag contained marijuana was not sufficient to establish knowledge for the meth counts in the indictment because the knowledge element requires evidence that the defendant actually knew the controlled substance identity or that the contents were a listed controlled substance.

  • United States v. Cristofer Jose Gallegos-Espinal (5th Cir. August 2020)

    The Fifth Circuit reversed the grant of a defendant’s motion to suppress evidence under a broad, written consent to search a cell phone and seize property prior to issuance of a search warrant. Applying the objective standard, the Court held that a reasonable person would understand consent to examine a phone includes its contents and that permission to seize materials includes permission to seize and review phone contents later.

  • United States v. Jose Reyes-Correa (1st Cir. August 2020)

    The First Circuit reversed the denial of a defendant’s motion to dismiss federal drug conspiracy offenses under the Double Jeopardy Clause of the U.S. Constitution, holding that the Puerto Rico government and U.S. federal government are not separate sovereigns for Double Jeopardy purposes, so the defendant's federal charges for drug conspiracy were barred by his prior conviction under Puerto Rican law for the same offense conduct.

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