Reading The Heller Tea Leaves

As you may (or may not) know, the Supreme Court recently heard oral arguments in District of Columbia v. Heller, 07-290, a D.C. gun case that may have broad implications for the criminal defense bar.

In sum, Heller involves a challenge to D.C.'s 31-year ban on handgun ownership.

The D.C. Circuit Court determined that the ban is incompatible with the Second Amendment, which is a personal right. ScotusBlog frames "the ultimate question" before the Court as: whether the Second Amendment guarantees an individual's right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

ScotusBlog notes that the Supreme Court has not heard a case testing the Second Amendment's scope since 1939.

The Oyez Project has the complete transcript and audio of the oral argument here.

Professor Douglas A. Berman provides an excellent analysis of the case and its potential impact if the Supreme Court decision. Professor Berman notes:

[I]f individuals are recognized to have an enforceable right to have a gun for self-defense in their home, I think there could be real constitutional problems with broad federal laws that prohibit all felons from possessing any guns in any settings AND severe sentencing laws that might unduly chill an individual's efforts to keep guns safely in her home.

Sentencing Law And Policy, March 18, 2008

Please review Professor Berman's coverage of the Heller case at his blog. Our office will keep you posted on the latest news regarding this case.

From the Third Circuit Blog . . .

Third Circuit widens circuit split on guilt-assuming hypotheticals; reaffirms breadth of Rule 404(b) in fraud cases

Brett Sweitzer, an AFPD in the Eastern District of Pennsylvania, provides an excellent summary of United States v. Kellogg, No. 05-1893, which held that guilt-assuming hypothetical questions may sometimes be asked of defense character witnesses, widening an existing circuit split on this issue.

Please visit the Third Circuit Blog for the case summary.

2008 CJA Training Programs

The Office of Defender Services has released its 2008 training schedule. Below is a partial list of upcoming training opportunities. Please visit the website for more information or to register for programs.

Winning Strategies Seminar
February 14-16, 2008
Hilton New Orleans Riverside, New Orleans, Louisiana

Draft Agenda
Financial Assistance Form

Winning Strategies offers both new and experienced panel attorneys the opportunity to attend presentations on criminal defense topics of interest in both large and small group settings. The presentations focus on the nuts and bolts of federal criminal practice including the sentencing guidelines, sentencing mitigation, and the Federal Rules of Criminal Procedure. Sessions focusing on the impact of cases such as Rita, Booker and Crawford, and Fourth, Fifth and Sixth Amendment issues are also included. In addition, participants can expect presentations on trial skills such as cross examination, defending gang cases and attacking wiretap evidence. Also included are presentations on the use of technology in the courtroom and an explanation of CJA guidelines and procedures.

In addition to the February 14-16 Winning Strategies Seminar in New Orleans, we will offer this program again during the summer of 2008 at a time and location to be determined.

Contact: Karen_W_Holsendorff@ao.uscourts.gov

Sentencing Advocacy Workshop
March 13-15, 2008
Chicaog, Illinois

The Sentencing Advocacy Workshop focuses on an often neglected, yet extremely important, area of practice. Since approximately 95% of federal criminal cases proceed to the sentencing phase, participation in the Sentencing Advocacy Workshop should not be missed. The program presents a comprehensive approach to sentencing advocacy. Participants will learn a process for the development of a persuasive, fact-based sentencing theory and the advocacy skills necessary to advance that theory in writing and during sentencing hearings. Among other subjects, presentations and demonstrations will address changes in federal sentencing law, judging at sentencing, use of a mitigation specialist, storytelling and persuasive writing. The workshop consists of plenary sessions and small group breakout sessions. In the small group breakout sessions, participants will use a case of their own to brainstorm facts, develop a theory and theme, tell a story, and persuasively write a portion of their downward departure motion or sentencing memo.

Enrollment for this program is limited to 64 panel attorneys certified to accept Criminal Justice Act appointments in federal court. Early registration is encouraged. Strict priority in registration will be given to applicants who have not previously attended this workshop.

Contact: Karen_W_Holsendorff@ao.uscourts.gov

Supreme Court "Cert. Alert"

"Cert. Alerts"

An added benefit of our new blog is the ability to instantly inform you of important cases that will be decided by the Supreme Court. Our first "Cert. Alert" involves the Supreme Court's decision to grant certiorari review in two Armed Career Criminal Act Cases (ACCA). If you have an ACCA case, you should generally raise and preserve arguments similar to those argued below:

From the Office of Defender Services, Legal Policy and Training Division:

The Supreme Court has granted certiorari review in two ACCA cases. In Begay v. United States, No. 06-11543, the Court will decide whether driving while intoxicated is a crime that “otherwise involves conduct that presents a serious potential risk of injury to another,” and hence is a “violent felony” under 18 U.S.C. §924(e)(2)(B)(ii). Because this case involves the interpretation of the “otherwise” clause of §924(e)(2)(B)(ii), the Court’s decision may have broad implications and extend to prior offenses other than DWI. Practitioners currently handling ACCA cases may wish to raise and preserve claims similar to those argued in the briefs of petitioner and amici. The cert. petition may be accessed here. The decision below may be accessed here. The briefs of petitioner and amici in support of petitioner may be accessed here.

In United States v. Rodriquez, No. 06-1646, the Court will decide whether a state controlled substance offense (punishable by five years imprisonment) is a “serious drug offense” under 18 U.S.C. §924(e)(2)(A)(ii) because the defendant was subject to a recidivist enhancement statute (establishing a ten-year statutory maximum). The cert petition may be accessed here. The decision below may be accessed here.

Free Webcast On Recent Federal Sentencing Decisions

On Wednesday, December 19, 2007, the Association of Federal Defense Attorneys will present a free webcast on recent federal sentencing development from 12:00 p.m. to 1:30 p.m.

Professor Doug Berman, of the Mortiz College of Law at Ohio State University, will cover the recent Supreme Court decisions in Watson, Kimbrough and Gall, as well as the new sentencing guideline amendments for crack cocaine. Professor Berman is a nationally renowned sentencing scholar and authors the highly regarded Sentencing Law and Policy blog.

The webcast will include an online Question & Answer session conducted within a moderated chat room. The webcast will include PDF links to materials relevant to the discussion, and attendees will receive a Uniform Certificate of Attendance. As a courtesy to the bar, attendance is free to all. To attend this webcast, follow these steps:

On the AFDA website (www.afda.org), put your mouse arrow on the "Audio Webcast" bar, which is located toward the upper right-hand section of your screen.

In the drop-down menu that appears, select "Attend A Webcast." Enter the following:

Username: AFDA (note: all capital letters. case sensitive)
Password: 121907

For more information, please visit the AFDA website.

December A Busy Month For Federal Sentencing

Last week marked a significant period in federal sentencing developments. The Supreme Court issued Gall v. United States and Kimbrough v. United States, and the Sentencing Commission voted to make the new crack guidelines retroactive, effective March 3, 2008. Below is a quick summary of the Supreme Court's decisions from Professor Doug Berman's excellent Sentencing Law & Policy blog and the SCOTUSblog:

Kimbrough v. United States

The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330)....

Gall v. United States

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range. Chief Justice John G. Roberts, Jr., announced the opinion in Stevens’ absence.

Please visit these blogs for in-depth commentary regarding the significance of these decisions.

Sentencing Commission's Crack Retroactivity

The Sentencing Commission's official press release regarding the crack amendment retroactivity is posted here, as well as its reader-friendly version of the amendments on retroactivity. Please stay tuned to this blog regarding the implications of the amendments for our District and Circuit, or contact us at (302) 573-6010.

Welcome To Our New Blog!

After careful thought and consideration, our office has decided to abandon publishing "Best Defense," our quarterly newsletter, and to enter the blogging fray. Although some of you may prefer to receive a quarterly newsletter, we believe that a blog allows us to provide our CJA attorneys with instant news and updates regarding the federal criminal justice system.

This blog will be updated weekly (or daily, depending on breaking news) with important federal criminal law news, District of Delaware and Supreme Court case summaries** or other information that relates to the defense of indigent defendants. This blog does not provide commentary or opinions. Instead, it exists to serve as an instant resource on changes affecting our practice.

We will, however, provide a monthly summary of news and information that we cover on this website for those of you that prefer the newsletter format. This summary will be available on our website at the end of each month.

** Please continue to visit the Third Circuit Blog for weekly summaries of precedential opinions issued by the Third Circuit. For your convenience, we will link to the Third Circuit Blog.