Revocations, Recusals, RDAP, Retrials

Briefly, we give you three cases of interest decided within the last few weeks:

(1) United States v. Smith: from the Seventh Circuit. Written by Judge Posner (with Judges Rovner and Tinder)

Two things happen in this appeal: first, the Court affirms a 14-month sentence imposed on a revocation violation, where the underlying revocation was illegal drug use (marijuana). But, it does so reluctantly. The Court ponders the utility in sending a drug addict to prison, candidly admitting that it was not "happy with the decision." "We have our doubts that imprisonment is an appropriate treatment for a marijuana habit," says the Court. For those of us who handle revocations based on illegal drug use, this decision is a must read. And everyone should take 20 minutes to listen to the oral argument as well.

The second thing that happens in this case, and it might possibly be related to the first, is that the Court, on its own, notes a potential problem: the judge, former prosecutor Sarah Darrow, appears to have had something to do with Mr. Smith's prosecution. So, concerned that the judge should have recused herself, see 18 U.S.C. 455, the Court ordered briefing on the issue, perhaps reaching for a reason to vacate the sentence imposed in this case.

(2) Abbott v. BOP: from the Ninth Circuit: Written by Judge Gould (with Judges Wardlaw and Christen)

This appeal concerns the Bureau of Prisons' Residential Drug Abuse Treatment Program (RDAP). Aside from the obvious, RDAP is important because it is one of the only programs that, if completed successfully, could result in a shorter prison sentence for our clients. See 18 U.S.C. 3621. So the program is in high demand. And this decision is a great reminder that clients are not entitled to RDAP or to early release following RDAP. A few notes from the decision:

• there are eligibility requirements for RDAP, which can be found here (and outstanding warrants could preclude eligibility);
• certain inmates, even with successful completion of RDAP, are ineligible for early release (go here);
• if the BOP concludes that an inmate is ineligible for early release based on its interpretation of the regulation, the inmate can challenge the BOP's determination by filing a federal habeas petition
• as happened in this case, a federal court can determine that the BOP's interpretation is invalid (here, that a prior Montana unlawful restraint conviction was the equivalent of kidnaping)
• and, if the inmate has already been released from prison, the remedy could be a shorter term of supervised release

Practically speaking, any attorney offering advice to a defendant on RDAP should have these regulations handy.

(3) United States v. Mavromatis: also from the Ninth:

This is a two-page Order. It holds that it is a double jeopardy violation to be tried for a violation of 18 U.S.C. 922(g) (the gun statute) following an acquittal on a different section of 922(g). So, as one example, and as happened in this case, if a judge (or jury) acquits an individual of being a felon in possession of a firearm, the government cannot then indict that individual for possessing a firearm after previously being committed to a mental institution. The government conceded error in light of a brief filed with the Supreme Court by the Solicitor General in 1992. Likely a surprise to the government that its concession ended in a published decision.