Washington DC, (January 28, 2003) --

Resources 

• NACDL comments regarding the BOP's proposed halfway house rule change 
• BOP proposed rule change
• DOJ memorandum triggering the BOP policy change
• BOP Director Kathleen Hawk Sawyer's Dec. 20, 2002 memorandum to Federal District Judges
• BOP Director Kathleen Hawk Sawyer's Jan. 16, 2003 memorandum to DC Judges
• BOP Asst. Director - Correctional Programs Div. Michael Cooksey, and Asst. Director/General Counsel Christopher Erlewine's Dec. 20, 2002 memorandum to CEOs in regard to halfway house changes

In the News 

• Halfway houses less of an option in white-collar crime, LA Times, May 25, 2003
• Halfway House Backlash, Legal Times, Feb. 10, 2003
• Mobile lawyers challenge Ashcroft's halfway house order, Mobile Register, Feb. 7, 2003
• Judge blocks order on halfway houses, Washington Post, Jan. 29, 2003
• NACDL Corrections Committee Co-chair Raag Singhal on NPR, Jan. 8, 2003
• White-Collar crime now gets real time, Washington Post, Jan. 7, 2003

Updates 

• Association of Federal Defense Attorneys Seminar Announcement: "The Federal BOP: A Course for White Collar Defense Counsel and their Business Clients." Click for more information...
• Jan. 28, 2003: On Jan. 24, 2003, in the first opinion to grant relief on the merits (click here for Cutler opinion), US District Judge Ellen Segal Huvelle granted, in part, petitioner's motion to vacate, set aside, or correct sentence. The Court enjoined the Bureau of Prisons "from transferring [the defendant from a community confinement center] pursuant to the new inmate designation policy described in the Dec. 16, 2002 Memorandum from Deputy Attorney General Larry Thompson to BOP Director Kathleen Hawk Sawyer."
  
  Petitioner brought the motion pursuant to 28 USC §§2241 and 2255 asking that the court vacate, set aside, or correct the sentence that it had imposed last year. While the court did not vacate the sentence, it did enjoin the BOP from transferring the defendant under principles of equitable estoppel and due process.
  
  Specifically, at pages 19-20, the Court held that the Bureau of Prisons, the Bureau of Prisons is estopped from applying its newly-announced policy regarding the placement of Zone C offenders to transfer Shawna Culter from the CCC in which she currently resides to a federal prison. To do so under the unique circumstances presented here cannot be squared with fundamental notions of due process. Insofar as the old policy was truly illegal and the new policy was necessary to bring BOP into compliance with the Sentencing Guidelines, applying this unexpected and unforeseeable change would, in light of the Court's reasonable and government-induced reliance on the old policy, violate the Due Process Clause. Culter v. United States, Crim. No. 01-439 (ESH); Civ. No. 03-0106 (ESH) (D. D.C. January 24, 2002).
• Jan. 20, 2003: As of now, injunctions have been granted by a district court judge in Massachusetts (Springfield division); in Maryland; in NYC. In DC, the govt agreed not to move the defendant from a halfway house to prison until the judge has an opportunity to rule on the issue. An injunction was denied in Detroit. Requests for TRO's have been or are being filed in Nashville, Buffalo, Little Rock and in other places.

Relevant Cases & Briefs 

• Click to jump to case: Ferguson v. Ashcroft, Middle Dist. Louisiana / U.S. v. Arthur, Eastern Dist. New York / U.S. v. Canavan, District of Maryland - Northern Division / Byrd v. Moore, Western Dist. North Carolina / U.S. v. Iacaboni, District of Massachusetts - Springfield Div. / TRO Application in Dist. Court of DC / Ferguson v. Manco - 2nd Circuit Court of Appeals

Middle District Louisiana, Mabel B. Ferguson v. John Ashcroft, et al.  

• Opinion, Issued Feb. 27, 2003
• Complaint & Petition
• Motion for Prelim. Injunction

Eastern District of New York (Brooklyn), U.S. v. Arthur 

U.S. District Judge Frederic Block, E.D.N.Y. (Brooklyn), issued a Temporary Restraining Order on 1/22/03 against the New York City CCM and all agents of the BoP to prevent the redesignation of a Brooklyn CCC initial designee, pending a 1/24/03 hearing. The Brooklyn designee was sentenced to a year and a day by a different judge in the same district, with a CCC recommendation. Defense attorneys did not go back to the sentencing judge under sec. 2255. The underlying action is a 2241 habeas naming the CCM, claiming the new policy is legally erroneous and the redesignations are thus an abuse of discretion. Backup argument that the new policy cannot be applied retroactively. (Similar cases are pending in San Diego, CA, and Charlotte, NC, and probably others, in addition to quite a few 2255s taken back to sentencing judges on a "misapprehension of law" theory.) The New York case will be argued (by local counsel Sam Schmidt of NYC) in tandem with a 2255 filed by another Brooklyn CCC inmate, who happens to have been sentenced by Judge Block. NACDL and NYSCDL are filing an amicus brief in support of jurisdiction. (See below.) The brief was prepared by Peter Goldberger, Todd Bussert, and Margaret Colgate Love, with Josh Dratel serving as local counsel.

• NACDL Amicus Brief

District of Maryland, Northern Division (Baltimore), U.S. v. Canavan, U.S. v. Tipton, U.S. v. Brinsfield 

• Judge Blake's May 15 opinion in the Maryland CCC cases: Tipton, Canavan, & Brinsfield

Western District of North Carolina 

In the WDNC, Chief US District Judge Mullen issued a TRO under §2241 jurisdiction in favor of four residents of the McLeod CCC in Charlotte (two private and two CJA clients, single petition filed as a joint effort by all counsel) in the case Byrd et al. v. Moore (3:03CV26-MU). Below is the subsequent opinion of Chief USDJ Graham Mullen in support of a preliminary injunction for the 3 affected residents of the Charlotte, NC, CCC. The court finds a significant balance of harms in favor of the petitioner, and sufficiently serious chance of success on the merits of most if not all petitioners' arguments, under both habeas and mandamus theories. This may be the first opinion, however, to fully endorse our statutory argument against the entire thesis of the OLC opinion. The U.S. Attorney''s Office has vowed to appeal to the Fourth
Circuit.

• Byrd Opinion, Western Dist. NC

District of Massachusetts (Springfield Division) 

In US v. Iacaboni, Judge Ponsor enjoined the government from transferring the client to prison pending further proceedings.

Application for TRO filed in US District Court for the District of Columbia 

On January 15, 2002, an application for a TRO, a Motion for Preliminary Injunction; and a Motion for Leave of the Court to Serve Interrogatories and Request Production of Documents against the Attorney General of the United States and the Bureau of Prisons in the United States District Court for the District of Columbia were filed. The AUSA and the BOP agreed to postpone the transfer for one month until February 24. The case was assigned to Judge Gladys Kessler. Opposition to the PI motion is due February 3. The follow up Reply is due February 7, and a hearing is set for February 10 at 9:30 a.m. The primary legal argument of Lewin and Lewin is that it is unconstitutional (as a violation of the Ex Post Facto clause) for the BOP to apply the DOJ’s new interpretation of the law retroactively to an accused who relied, in his plea bargain and actual plea, on the availability of the policy and whose reliance was vindicated with a favorable designation by the BOP. In the alternative, they argued that the AG’s reading of the statutory provisions is erroneous and that the BOP’s interpretation is correct, valid and entitled to “respect” if not “judicial deference.”

Ferguson v. Manco - 2nd Circuit Court of Appeals 

• Appellant Ferguson's Opening Brief

Contacts

NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.