Author Archives: Mario Machado

Machado: 10th Circuit Upholds Judge Kane’s Stripping Kefelegne Worku Of Citizenship

Two spoiler alerts: (i) this post will be about me playing advocatus diaboli on behalf of a purported real-life devil from Eithiopia whose trial and sentence was held before Senior U.S. District Judge John L. Kane, Jr. with whom I and others had the honor and privilege of writing at our beloved Fault Lines; and (ii) there could be a fortuitous ending for Worku once he’s turned over to Immigration and Customs Enforcement for deportation after he completes his sentence, in that he has a chance of remaining in the U.S. despite being convicted in federal court.

The Denver Post reported on Worku’s last ditch effort before the 10th Circuit of Appeals:

The 10th Circuit Court of Appeals in Denver has dismissed an appeal by a 62-year-old man who claims his false identification as an Ethiopian prison guard who killed and tortured dozens of people led to an unfair sentencing on an unrelated U.S. immigration fraud count. Continue reading

Debate: PC, At Best Inauthentic Babble, At Worst Dangerous Obfuscation

Ed. Note: After two prominent intellectuals, a New York Times reporter and an award winning British media personality failed to debate the question ,“Be it Resolved: What You Call Political Correctness, I Call Progress,” former Fault Lines contributors Mario Machado and Chris Seaton attempted to succeed where four others failed. Bellow Mario’s argument.

If liberty means anything at all, it means the right to tell people what they do not want to hear. 

–George Orwell, Animal Farm (Original Preface)

Let’s begin with stating the obvious: for some many of my fellow primates, there are some words that are just too much to bear. These words need to be diluted so that the chance of someone being hurt or “offended” becomes impossible.

Yes, these folks are fine with words either being banned outright or replaced with more antiseptic ones, at the expense of reason and the English language.  For those who have respect for language (especially those who make a living off of it, along with the First Amendment), and who don’t require they be treated like backward children, that state of affairs is something that must be addressed and corrected.  The stakes are high, amigos.

Those on the other side, who with a straight hysterical face will tell you that “words are violence,” will claim that no measure is too stiff, no punishment too severe so long as no feelings are hurt and everyone’s sensitivities remain one-hundred-percent intact.  Notice how another cherished concept of civilization – a sense of nuance and proportion – has now been thrown overboard as a result of this “movement”?

It’s not so bad that Hollywood, in part because of Trump Derangement Syndrome, has become a beacon for bullying gangs that will excoriate anyone that goes off the politically-correct script (no pun). Make one remark off-the-cuff that may offend one member of the tribe for one second, and it is off-with-your-fucking-head, amigos.  No matter how perfect or swift the contrition by the offender, their careers will go up in smoke.

Speaking of Trump, a lot of this censoring is done in the name of “things have never been so nasty, so uncivil.” Really? During the 1800 presidential campaign, John Adams referred to that fellow from Monticello, another founding father, as “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” In 1828, Andrew Jackson’s opponent called him a murderer, an adulterer, and a pimp.  So the current political climate of naughty words does not justify these cries for civility.

Raising the sights a bit, let’s talk about academia.  A majority of students think that words are violence. One would think that a basic academic (pardon the expression) explanation would put such a foolish position to rest: “Junior, violence is blunt force that can cause physical injury. By definition, words can’t do that.” But you may get called a white supremacist or a Nazi before Junior’s rusted brain wheels start spinning.

But it gets worse, much, much worse.  The professors and the administrators – yes! those who are supposed to be in charge – have become the proverbial hostages to the students. They’re terrified of putting these brats in place, lest they be reported and lose their jobs. This is in part because they know their spineless colleagues will not come to their defense.

So what are we left with at these universities? Trigger warnings, cry-ins, de-platforming of speakers, riots. The last two usually occur when the really bad speakers come to town.  Nothing says “I’m a smart, strident, dependable person who deserves a paycheck” like breaking a Starbucks window with a sledge hammer because someone was uttering politically incorrect stuff at an event where attendance was not compulsory.  These are the professionals of our future who will enter the workforce en masse without calloused sensitivities, all because of the campaign for political-correctness-for-all.

What happens when these political-correctness warriors get off the academic teat of appeasement and are lucky enough to get a job? What will they do when their boss is a ball-buster, who also happens to have the temerity to use “incorrect” gender pronouns? Will they curl up into a ball, toughen up, or simply report it to the higher-ups in the hopes of having a competent leader thrown out?

With regards to the last question, which involves someone snitching out another for using language that’s forbidden by the tribe, the American Bar Association has joined the party.  ABA’s Model Rule 4.8(g) is full of vague, meaningless tripe that forbids lawyers to:

engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law

Let’s say you finally found the right lawyer who puts you first, and is in the best position to get you out of a serious jam. This rule can be used to take his license, should anyone perceive he said something considered “harassment,” and perhaps that leaves you with lawyers who will cower should a prosecutor threaten with putting you in a cage if she doesn’t capitulate.  There you have it ladies and gentlemen, how far the termites have spread.

I will come full circle, and finish with our beloved language, and how political correctness has been used to trivialize things that cause real pain and suffering.  Freaking out because you’re facing a lifetime of banishment from this country and don’t have the coin to pay for your defense? Well, you’re not entitled to a lawyer, because the deportation process is “administrative” and not punitive. In an immigration jail and hate the conditions? How bad can it possibly be, buttercup? They’re not jails, but rather “service processing” and “transitional” centers.

You’re in prison awaiting trial, and you got thrown in a filthy hole?  Calm down, drama queen. It’s not a hole, but a “secure housing unit,” or SHU.  Facing life in prison, so you want your lawyer to pulverize the government’s parade of rats? Understandable, but make sure he only addresses him as “cooperating witness” during cross and closing argument.  Is all this progress? Very far from it.

Surprise! John Oliver’s Take on Immigration Court Needs Work

I’ve never found John Oliver to be funny or particularly enlightening, and his recent low-rent attack on Dustin Hoffman reeked of self-righteousness and ignorance about the criminal justice system. But there is a clip from his show about Immigration Courts that merits discussion.

Oliver, and the people (some of whom are former Immigration Judges) in his clip, make the following points about Immigration Court, in the following order:

  • Immigration Courts in essence handle “death penalty cases” in a traffic court setting;
  • There is a gargantuan backlog of cases, with some courts taking up to 5 years to process cases. This is sometimes detrimental to defendants respondents

Continue reading

Debate: Richard Nixon is the Worst Person to Be Pardoned, Arpaio Included

Ed. Note: Like the old Fault Lines days, Chris Seaton and Mario Machado will duke it out over whether the pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio was the worst pardon ever. This is Mario’s argument.

A brief throat-clearing before deploying the first strike: Joe Arpaio is a contemptuous sadist and President Trump is the poor man’s Silvio Berlusconi, with the added bonus of Trump having access to the Gold Codes. They’re both sheep-faced loons who shouldn’t be in a position that involves law or governance.

That I take such a position should be obvious since I am a criminal defense lawyer sentient primate, but these days it’s wiser to Gertrude before a discussion rather than after. It’s a sign of the times.

So, the question before the house is not whether Arpaio is the kind of person that should make those with a modicum of humanity wish there was a special hell for him to go to, but whether he’s the “worst” person to have ever received a presidential pardon. That, my friends, he is not. Continue reading

Machado: The Myth Of The Busted Safety Valve

Whenever Drug Warriors hear challenges about how non-violent, first-time offenders are being unjustly sentenced to rot in cages for decades, their go-to rebuke is the adored Sentencing Guidelines “safety valve.” They say that the valve saves those who are regarded as the most sympathetic defendants in the drug war from being sentenced to cruelly disproportionate sentences. But the real valve, as seen on the ground, provides a different picture.

The following is a not-uncommon tale involving a federal narcotics case and how the “safety valve” sentencing provision, which is meant to help out those criminal justice virgins, can be rendered meaningless in light of how drug conspiracies are usually prosecuted:

Joe is a young guy who hangs with the “wrong crowd” but has never had a brush with the law. In times of financial strife and sheer boredom – he’s a millennial who has a shit job and a girlfriend he can’t stand — he gets asked by one of his amigos to drive a car that has some meth in it from point A to point B. He’s only told that there are 2 kilos hidden inside, nothing else, and agrees to get paid $1,000 per kilo. It’s not much, but he’s new to the game and naïve, so he takes it.

He doesn’t package the stuff, load it into the car, negotiate the deal, or even meet the buyer or seller. He just agrees to drive the drugs. It turns out that his amigo has been under government surveillance, and eventually Joe gets caught with the car and the stuff. He gets indicted in federal court, and is charged with conspiring with his confederates to possess with intent to distribute 50 grams of pure* meth. Continue reading

Alstory Simon Column Shows There’s No Competency Test For Soapboxes

To paraphrase contrarian extraordinaire Christopher Hitchens, to describe this latest column from the Chicago Tribune as a piece of crap “would be to run the risk of a discourse that would never again rise above the excremental.” The column starts with a hyper-cynical version of what Alstory Simon went through:

For the last several years, Alstory Simon has had a good run in the media.

His version of an important local story — devious critics of the justice system hoodwinked me into confessing to a double murder I didn’t commit in order to get the real killer off death row and undermine capital punishment — has become the dominant narrative.

A better starting point would’ve been, “For 15 years, 8 months, Alstory Simon had a horrible run in the justice system. During that time, he was locked up 23 hours a day for a crime he did not commit.”

When Simon was finally exonerated, the proprietor of this space wrote about it, about how the deeply passionate Northwestern University’s Medill Innocence Project – led by a journalist — tricked and coerced Simon into confessing to a crime he did not commit in order to save one of their own, whose name is Anthony Porter. Continue reading

Machado: Sick Nevadan Asks Jailers For Help, Ends Up Dead At Their Hands

The case of Justin Thompson, who died following his assault by guards at the Washoe County Jail in Reno, is only the latest episode of scandalous brutality coming out of America’s jails/prisons. Thompson, a 35-year-old who suffered from mental illness, tried in vain to draw his last breath after being crushed, beaten, and taunted by guards. The Reno Gazette-Journal reports:

Videos released by the Washoe County Sheriff’s Office show in gut-wrenching detail the final hours of a Reno man with a mental illness who died after struggling against deputies who kept him pinned to the floor — his face covered with a spit hood — for more than 30 minutes.

Justin Thompson, 35, was booked into the Washoe County Jail on Aug. 3 and spent 24 hours pacing an empty holding cell in growing distress, curling in the fetal position while clutching his head, stuffing toilet paper in his ears, drawing on the walls with his own blood and climbing the metal sink to talk into the ceiling vent.

It took more than a day for jail personnel to decide Thompson needed to go to the emergency room. When he returned to the jail, the violent struggle that ultimately killed him occurred. The video shows Thompson wriggling under a crowd of deputies who kicked him, kneeled heavily on his back and applied painful arm-bar holds. Continue reading

Mario Machado: ICE’s VOICE Program Is A Complete Waste And A Disgrace

There was no surprise when ICE unveiled the nuts and bolts of its insufferably-named “Victims of Immigration Crimes Engagement” office, or VOICE. During his address to Congress, President Trump said he had ordered DHS “to create an office to serve American victims”* of the undocumented. DHS Secretary John Kelly alluded to it in a memorandum that was released about a month afterwards.

But now that its plan for the victims has been laid out in full, its contents are just as generic, and effective at murdering words, as the President’s previous statements and Executive Orders.  Let’s start with what’s listed under the subheading “what services are available to me as a crime victim through VOICE:”

VOICE will afford victims and their loved ones a single point of contact to obtain information regarding criminal aliens in ICE custody. That could include getting automated custody status information, getting additional releasable case history about the perpetrator, or having an ICE representative explain the immigration enforcement and removal process.

Automated custody status information? That’s already in place.  DHS has an online inmate locator system, where any primate can go online and find out where the person’s being detained. There’s even an 800 number that someone, equipped with the culprit’s alien number, can check the status of his case in immigration court. But ICE failed to even mention that basic tidbit.

Additional releasable case history about the perpetrator? Guess the formidable folks at VOICE will guide victims as they go through public online court dockets. ICE representative will explain the immigration enforcement and removal process? Are these people (lawyers, JDs, or someone who took a crash course?) going to be capable of explaining, over the phone, the intricacies of the process that involves detaining, holding, and deporting individuals?

Will they be able to explain the uncertainty that ensues when the criminal rubber hits the immigration road? If so, immigration law practitioners may want to start looking for jobs at Dairy Queen Taco Bell.

Moving backwards, VOICE’s objectives are listed as such:

  • Use a victim-centered approach to acknowledge and support immigration crime victims and their families.
  • Promote awareness of rights and services available to immigration crime victims.
  • Build collaborative partnerships with community stakeholders assisting immigration crime victims.
  • Provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

Now, a moment of silence for all those slaughtered words, as Orwell does somersaults in his grave. “Victim-centered approach?” “Promote awareness of rights?” “Collaborative partnerships?” This is all meaningless babble. No detailed plan, just a bunch of “feel good” words strung together incoherently. So far, the only ones hearing the victims’ voices will be the talentless saps that will run the call centers.

At best, this is a lame attempt at a tummy rub, which will only reach the dumb or the terminally misinformed. As it is, this VOICE project is, as Glenn Greenwald put it, “dangerous and disgusting. And exploitative beyond relief.” At worst, it will make people dumber and put people’s lives in danger. All this talk about informing about the inmate’s whereabouts can lead to some of the crazies thinking they can go on a lynching expedition at an immigration jail, where they will be met by people with guns.

Notice what was absent from the VOICE website? A blueprint for making victims “whole”: giving them counseling, cash, or having their voices heard in court. I doubt that whoever drafted the VOICE plan realized that the criminal courts and prosecutors are the ones, for better or worse, who try to do those things for the victims. So was it probably an omission due to misinformation. Or perhaps they’re just cheap.

In any event, victims are not heard in immigration court or by ICE, as any “sentencing” has already been done in the criminal courts, and there are no victim impact statements in immigrationland.  If you lose in immigration court, the only sentence is an order saying “you’re outta here,” notwithstanding any cries for “justice” coming from anyone.

Like deportation proceedings, the debate over victims’ rights is complex stuff. It’s usually those who’ve spent time in the trenches who can shed some light on what may improve the state of affairs, and what can make it worse.

The content of the VOICE website is an oversimplified and misguided version of what happens on the ground. Its approach to the law and the dynamics of deportation is arrogant and dangerous. But its self-righteous and self-pitying approach to victims is what makes this tripe all the worse, because it may leave victims worse off than they were in the first place.

*He followed that by saying, “we are providing a voice to those who have been ignored by our media, and silenced by special interests.” That statement is removed from reality: undocumented immigrants who commit crimes are usually given an extra dose of smear by the media, and those without status don’t have “special interests” who serve them by silencing their victims.

Miami’s Rule 35 Scam = No Honor Among Convicts (Past & Present)

In a recent case coming out of America’s health care fraud epicenter south Florida, 3 hucksters just admitted to scamming 22 federal inmates out of millions of dollars. And what were these inmates – and their families – expecting in return for their payments? Time shaved off their sentences for cooperating, through the scammers’ efforts on the outside, as reported by The Miami Herald:

A trio of confidence artists from Texas have pleaded guilty to pretending to use informants and law enforcement to help federal inmates in Miami-Dade County obtain credit for providing information on crimes so they could qualify for sentence reductions.

Relatives of at least 22 inmates paid out $4.4 million to the threesome: Alvin James Warrick, 40, and Colitha Patrice Bush, 36, both of Beaumont, who operated a company called Private Services, and Ronald Bennett Shepherd, 32, of Houston, the firm’s treasurer.

Each of the three defendants pleaded guilty last month to a fraud conspiracy charge that carries up to 20 years in prison, though Shepherd is expected to receive a shorter sentence because he only had a supporting role.

None of their inmate clients ever provided any useful information or received shorter prison terms during the course of their scheme, which ran from 2009 to 2016.

As if the federal cooperation game wasn’t icky enough already (e.g., rat on your closest and toughest confederates, and get some time off your sentence at the government’s pleasure), these inmates’ families were bilked out of millions in exchange for nada, zilch. At an average of about $200K per inmate, that’s a nice chunk of change that could’ve gone to pay for familial expenses on the outside, a defense lawyer’s assistance with cooperating, or for plenty of the BOP’s most exquisite cuisine.

It may even be worse than zilch, because these inmates may have been placed in danger if all the back and forth between them, their families, and the con artists may have created an aura of cooperation on the inside. There’s always something about words that rhyme with “snitches”…

Yes, the article and even the court’s docket will list the inmates as the victims, but in reality the people who lost some hard-earned cash were the families who were willing, and most importantly, able to fork over the cash. In all likelihood, these inmates were already destitute by the time they reached their cell at FCI Miami.

After restitution has been ordered, and the government moved to garnish whatever’s left après le déluge, these low-to-middle-flying convicts (FCI Miami is a low-security prison) are left with a pittance, at best. If anything, they would have sought to make the government whole with whatever they had left so as to hopefully seek a break during sentencing. So the con artists knew where there was no money left, and thus went to where all the money was: the families.

As part of the scheme, Warrick and Bush provided fake invoices and fraudulent documents showing agreements benefiting inmates between various U.S. attorney’s offices, including two in New York, and Private Services.

“In fact, the agreements were fake, the prosecutors’ signatures were forged, and no substantial assistance was provided on behalf of these inmates,” according to the U.S. attorney’s office in Miami.

Instead, the three defendants received regular payments from the relatives of federal inmates for their personal use, including spending the money on luxury cars, vacations and gambling activities.

When you really think about it, it’s not that hard of a sell, at first at least. These are inmates who’ve likely never been to prison before and they, along with their families, are scared shitless as they go through the system. Guess if they waive some shiny documents “proving” results with prosecutors’ names on them, and are good enough salesmen, they can seal the scam.

But there are gaps in how this all went down. Perhaps the inmates and their families exhausted their retainers with the defense lawyers, yet they still had the dough to give to these conniving mutts. Did they not contact their defense lawyers? A ten-second phone call to a competent practitioner would have put these victims on notice that this was a scam.

Jailhouse lawyers don’t really help much despite good intentions, but even a sharp-eyed one might have raised a red flag. Were these con artists that good to keep this going for so long, with so many inmates, while collecting millions?

There’s a whole non-lawyer, and not necessarily criminal, industry that “helps” those on the inside. Take, for example, the BOP’s residential drug abuse program, or RDAP. Those who enroll are eligible for benefits that include time off their sentences, time in a half-way house. Yet, there’s a slew of “prison consultants” on the outside who seek to get paid in exchange for assisting the inmates with getting in the program. As with anything in life, these consultants vary in competence and experience, but if the inmate lands the wrong one, it will likely bring more harm.

A side effect to these cases involving the scam is that perhaps some of the inmates felt like they sold a part of their soul as they worked toward building more cases for the government, with the (distant?) hope of catching a break. They never got a sentencing discount for their effort, but at least no more lives were harmed because of it.