Washington State Law
Washington State Supreme Court
State v. Perez-Valdez: The Court affirmed Mr. Perez-Valdez’s conviction for one count of second degree rape of a child and one count of third degree rape of a child, finding proper two evidentiary decisions made by the trial court. The Court determined that the defense called witnesses who testified to Mr. Perez-Valdez's reputation for good moral character and, though the State failed to object at the time, it later argued that a general reputation for good character is not pertinent under ER 404(a)(1) to a specific element of the charged crime, rape of a child. The Court thus found proper the trial court’s action in preventing the defense from presenting argument about evidence that, upon later objection, the court deemed to be inadmissible. The Court also found proper the trial court’s denial of Mr. Perez-Valdez’s motions for a mistrial based on a statement made by a state witness relating to the credibility of the victims. http://www.courts.wa.gov/opinions/pdf/840032.opn.pdf
In a dissent, Justice Wiggins argued that the evidence sought to be entered by the defense, testimony about an arson committed by the accusers in this case, was sought to be used as evidence of motive to fabricate allegations against Mr. Perez-Valdez. The dissent argued that Mr. Perez-Valdez was erroneously prohibited from introducing admissible evidence to challenge the alleged victims' credibility. The dissent argued that the evidence was relevant to show that the alleged victims had a motive to lie, and the defense should have been allowed to present this evidence due to the presumption of innocence and requirement of proof beyond a reasonable doubt. The dissent posited that this evidence was particularly necessary when the conviction rested upon uncorroborated testimony of two teenagers, as in this case. http://www.courts.wa.gov/opinions/pdf/840032.no1.pdf
State v. Franklin: The Court found that the 2009 legislation requiring sentencing courts to reduce the term of community custody when the total terms of confinement and community custody exceed the statutory maximum do apply retroactively to cases such as Mr. Franklin’s. However, the Court also concluded that the legislature in writing the law charged the Department of Corrections, not the sentencing court, with adjusting the length of community custody for those serving terms of confinement or community custody by modifying the end date for community custody. Thus, the Court concluded that Mr. Franklin was not entitled to resentencing by the trial court and affirmed the Court of Appeals. http://www.courts.wa.gov/opinions/pdf/845450.opn.pdf
Division Two Court of Appeals
State v. Ramirez-Estevez: In this partially published opinion, the Court affirmed Mr. Ramirez-Estevez’s conviction on five counts of first degree child rape. The Court agreed that the trial court erred by admitting as an excited utterance the hearsay testimonies of a school counselor and of the victim’s aunt that the victim told them that Mr. Ramirez-Estevez raped her was error. The court reasoned that though recalling the rapes was highly stressful and upsetting for the victim, and that the victim's understandably excited emotions appeared to have been the result of reliving and relating these past traumatic events to these apparently trusted adults, however the Court observed that the recollection happened nearly two years after the rapes occurred and, because of this prolonged delay, the victim’s statements did not constitute the type of excited utterance made under the stress of the event that are admissible under ER 803(a)(2). However, the Court found the error harmless and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/40226-2.11.doc.pdf
Federal Law
Ninth Circuit Court of Appeals
James v. Schriro: The Court granted Mr. James’ writ of habeas corpus with respect to his death sentence. The Court found that Mr. James was denied effective assistance of counsel in the penalty phase, concluding that counsel’s complete failure to investigate and present mitigating evidence of Mr. James’s troubled childhood, his mental illness, and his history of chronic drug abuse constituted deficient performance. We further conclude that this failure prejudiced Mr. James because it prevented the sentencing judge from learning that Mr. James had “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” However, the Court affirmed the trial court’s denial of relief with respect to Mr. James’ claimed Brady claim wherein he argued that the state failed to disclose an oral plea agreement with a co-defendant under which the co-defendant agreed to testify against Mr. James. The Court also denied relief with respect to Mr. James’ claims that the state failed to correct false testimony of his co-defendant that denied the existence of this agreement. The Court instructed the district court to grant the state a reasonable amount of time in which to resentence Mr. James and, if the state chooses not to resentence, ordered that Mr. James’ sentence to automatically be converted to life in prison in accordance with Arizona law. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/12/08-99016.pdf
United States v. McEnry: The Court vacated Mr. McEnry’s sentence on his guilty plea to serving as an airman without an airman’s certificate. The Court reasoned that the trial court selected the incorrect guideline under which to sentence Mr. McEnry, and that the trial court further relied upon uncharged relevant conduct in selecting the applicably guideline. Thus, the Court found, the trial court had incorrectly calculated Mr. McEnry’s Guidelines range. The Court remanded for resentencing under the correct guideline range. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10433.pdf
United States v. Reyes: The Court affirmed Mr. Reyes’ conviction in a second criminal trial for (1) securities fraud and making false filings with the Securities and Exchange Commission (SEC) (2) falsifying corporate books and records; and (3) making false statements to auditors. The Court was unpersuaded by Mr. Reyes’ arguments that his conviction should be vacated due to prosecutorial misconduct, insufficient evidence, and various evidentiary and instructional errors at trial. The Court found that Mr. Reyes did not establish prosecutorial misconduct through the government’s use of evidence showing that Mr. Reyes personally profited from the backdating of stock options while he served as CEO of Brocade, as the evidence that was not false, and the Government did not impermissibly ask the jury to draw false inferences from the evidence presented at trial. The Court further found that evidence of the profits made from the scheme was not irrelevant and did not unfairly prejudice the jury. The Court found that the government introduced the evidence to permit the jury to draw a reasonable inference that Mr. Reyes knew what he was doing and how the scheme operated to his benefit. Further, the Court found no misconduct in the government’s questioning of two witnesses to elicit testimony regarding the company’s options-pricing process and governance and compensation practices. The Court found that the testimony was not false or that the government sought to draw improper inferences based on its admission. The Court also concluded that the trial court did not abuse its discretion in admitting Prior Case Evidence to show that Mr. Reyes understood that he was engaged in illegal conduct and that the statements were relevant because they were inconsistent with Mr. Reyes’s position at his second trial and to his guilty state of mind. The Court likewise found no plain error in the introduction of evidence that Mr. Reyes, in his role as CEO, signed the financial statements and representation letters which formed the basis of the Government’s charges that Mr. Reyes falsified Company books and records, and lied to Company auditors. The Court found no error in the rejection of proposed jury instructions as well, including an instruction that a corporate officer is not criminally responsible for the acts of subordinates. The Court found that the district court had discretion to refuse to give a separate instruction regarding the defense’s theory where “other instructions, in their entirety, adequately cover that defense theory.” Finally, the court found that there was sufficient evidence to support the conviction, and that the prosecution did not improperly suggest to the jury that it could find materiality based on proxy-voting decisions, and disagreed that the district court erred because it did not give an instruction that would prevent the jury from being mislead. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10323.pdf
United States v. Urena: The court upheld Mr. Urena’s conviction for assault with a dangerous weapon and possession of contraband in prison. The Court held that the district court did not abuse its discretion by refusing to instruct the jury on his theory that he acted in self-defense, finding that Mr. Urena did not use commiserate force when he stabbed a man in retaliation for calling him a “bitch” in prison, and that even if the other man was armed, it was clear that Mr. Urena was the attacker and could not avail himself of the self-defense instruction. The Court also held that the district court did not violate his Confrontation Clause rights by refusing to allow him to cross examine the treating physician about the cause of the victim’s injuries, holding that the district court’s limitations on cross-examination did not limit relevant testimony, prejudice Mr. Urena, or deny the jury sufficient information to appraise the biases and motivations of the witness. The Court concluded that Mr. Urena was able to cross-examine the doctor regarding the issues on which he testified, and did not have a right to examine him regarding additional issues. Next, the Court held that the district court did not err in refusing to let him designate the treating physician as his expert witness on causation during the trial, finding that Mr. Urena could have hired his own expert or designated an expert prior to trial, but did not do so. Finally, the court found that the sentence was not unreasonable, as the district court sentenced him under the guidelines that were in effect at the time that he was sentenced. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/09-50285.pdf
United States v. Carper: The Court affirmed Mr. Carper’s sentence of three years’ imprisonment for unlawfully exporting PVS-14 Gen 3 night-vision devices (“PVS-14 devices”). The Court ruled that the district court correctly interpreted the Guidelines in calculating Mr. Carper’s three year sentence. The Court reasoned that the district court followed the sentencing guidelines, and did not abuse its discretion in declining to make a downward variance to the guidelines. The court noted that the district court explained that it had considered all of the factors in the guidelines and did grant a downward departure to Mr. Carper’s sentence. The Court deferred to the district court decision. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/14/10-10517.pdf
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Tuesday, October 18, 2011
Monday, September 26, 2011
Case Law Update, Week Ending 9-23-11
The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court
Personal Restraint of Talley: The Court held that former RCW 9.92.151 (2004) requires a county jail to provide opportunities for an inmate who is yet to be sentenced to earn credit toward early release, also known as "good-time" credit. As the Skamania County Jail and the Department of Corrections did not provide such opportunities to Mr. Talley prior to his criminal conviction, the Court held that the entities were in violation of former RCW 9.92.151, and that Mr. Talley was entitled to good-time credit at the statutory maximum rate of 15 percent. Mr. Talley also argued that the policy violated the equal protection clause of the United States Constitution; however, the Court did not reach that argument. http://www.courts.wa.gov/opinions/pdf/832846.opn.pdf
Personal Restraint of Rhome: The Court held that the state and federal constitutions do not require independent findings of fact that a defendant is competent to waive counsel and represent himself at trial. The Court rejected Mr. Rhome’s arguments that the sixth and fourteenth amendments to the federal constitution and the due process clause in the state constitution authorized a separate inquiry into his mental competency, and failure to do so constituted a violation of his rights under those amendments. The Court reasoned that relevant case law imposed no such standards, but merely did not find fault with courts that undertook such an inquiry, and that mental health status is but one factor that may be considered in determining the validity of a waiver. The Court further found that the trial court’s colloquy in this matter, during which the trial court advised Mr. Rhome of the risks of representing himself and ensured he understood the significance of the undertaking were sufficient to secure a valid waiver of counsel, notwithstanding that the court did not address Mr. Rhome’s known mental health issues during the colloquy. http://www.courts.wa.gov/opinions/pdf/837881.opn.pdf
State v. Caldwell: Mr. Caldwell and co-defendant John Gordon were each charged with second degree murder with two aggravating factors, deliberate cruelty and particular vulnerability of the victim. The jury was instructed to determine whether the aggravators were present, but the instructions did not define "deliberate cruelty" or "particular vulnerability." The defendants did not object to the instructions on that basis, and were found guilty of the crime and the aggravators applied. On appeal, the court found that the failure to provide detailed instructions defining the meaning of "deliberate cruelty" or "particular vulnerability" was not a manifest error of constitutional magnitude that may be addressed for the first time on appeal. The Court reversed the Court of Appeals’ alternate ruling, finding that the lower court mistakenly relied upon Apprendi and Ring to hold that the error could be characterized as failing to properly instruct on an element of the aggravated crime. The court reasoned that Apprendi and Ring do not dictate the level of detail required in an instruction setting forth aggravating factors, the statue at issue in this case does not define or elaborate on the meaning of “deliberate cruelty" or "particular vulnerability," and the jury instructions follow the statute. The omission of additional terms is not an error of constitutional magnitude. http://www.courts.wa.gov/opinions/pdf/842400.opn.pdf
Division One Court of Appeals
State v. Strizheus: The court affirmed the trial court’s exclusion of other suspect evidence that Mr. Strizheus claimed established that his son Vladimir committed the crime of attempting to murder Mr. Strizheus’ wife, and Vladimir’s mother, Valentina. The Court found that Mr. Strizheus did not meet his burden of showing facts or circumstances clearly pointing to Vladimir as the person who committed the crime. The Court reasoned that there was no evidence establishing a nexus between Vladimir and the crime, no physical evidence connecting Vladimir to the crime, no eyewitness testimony placing Vladimir at the scene, and no identification of Vladimir by Valentina as her attacker. In fact, the only evidence Mr. Strizheus relied upon was a statement made by his son when his son was admittedly intoxicated, and which his son later recanted. http://www.courts.wa.gov/opinions/pdf/64077-1.pub.doc.pdf
State v. Peters: The Court reversed and remanded for a new trial charges against Mr. Peters, who had been accused of felony murder in the second degree based on the predicate offense of assault and manslaughter in the first degree with a firearm, as a result of the shooting death of his six year old daughter. The jury had also been instructed on the lesser-included offense of manslaughter in the second degree The jury found Mr. Peters not guilty of felony murder but guilty of manslaughter in the first degree. However, the trial court erroneously instructed the jury that in order to convict Mr. Peters of manslaughter in the first degree, the State need only prove that he knew of and disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial risk that death may occur." The Court found that the jury instruction was not harmless beyond a reasonable doubt, and the uncontroverted evidence did not establish that Mr. Peters knew of and disregarded a substantial risk that death may occur. http://www.courts.wa.gov/opinions/pdf/64568-4.pub..doc.pdf
State v. Read: The Court found that there was sufficient evidence to uphold Mr. Read’s conviction for malicious harassment when Mr. Read was found to have used “virulent racial epithets” coupled with aggressive and intimidating conduct when confronting an Ethiopian parking lot attendant regarding a ticket he had been issued for parking over two spaces in a restaurant parking lot. After calling the victim a nigger, blaming her for the issuance of the ticket, making advances toward her on foot and then in his vehicle, the victim hid, terrified in the bushes and called 911 for police assistance. The Court found that this record established that Mr. Read intentionally and maliciously harassed the victim because her race, ethnicity, or national origin. http://www.courts.wa.gov/opinions/pdf/65064-5.pub..doc.pdf
Division Two Court of Appeals
State v. Corona: The Court reversed and remanded Mr. Corona’s case for a new sentencing hearing, as the court had imposed a $3,000.00 drug clean-up fine after convicting Mr. Corona of delivery involving less than two kilograms of methamphetamines. The Court found, in agreement with the State’s concession on the matter, that the trial court abused its discretion when it imposed the fine, as it erroneously believed that the fine was mandatory. However, under RCW 69.50.401, such fine is discretionary in offenses such as the one of which Mr. Corona was convicted. http://www.courts.wa.gov/opinions/pdf/41436-8.11.doc.pdf
Division Three Court of Appeals
State v. Guerrero: In this partially published opinion, Mr. Guerrero appealed the denial of sentencing under the drug offender sentencing alternative (DOSA). The Court found no error in the trial court’s refusal to impose the DOSA sentence. The Court further found that no chemical dependency screening was required, contrary to Mr. Guerrero’s argument, under the DOSA statutes, and the trial court did not commit error in failing to order such a screening. http://www.courts.wa.gov/opinions/pdf/289711.opn.doc.pdf
State v. Santos: The Court reversed Mr. Santos’ felony DUI conviction and remanded for entry of a conviction and sentence for gross misdemeanor DUI. The Court found that the State did not prove that Mr. Santos and the person named in documents purporting to show four prior DUI convictions were one and the same. The Court reasoned that the fact of the prior offenses is an essential element of felony DUI that the State must prove beyond a reasonable doubt, as this is the distinguishing factor between felony and misdemeanor DUI. Though the State introduced into evidence certified copies of four DUI judgments to show that Mr. Santos had prior offenses within ten years, generally accepted as the best evidence of a prior conviction, the Court found, based on prior precedent in bail jumping cases that those certified copies must also show beyond a reasonable doubt that “the person named therein is the same person on trial.” The showing, the Court found, cannot be based on the certified copy of the judgment, but must be based on independent evidence that "the person named therein is the defendant in the preset action," such as booking photographs or fingerprints, eyewitness identification, or distinctive personal information.In the present case, the Court determined that no evidence linked Mr. Santos to the prior DUI judgments: none of the information could be compared to Mr. Santos by simple observation and none could be compared to any other independent evidence that could be linked to Mr. Santos. The Court observed that the State had produced no evidence of Mr. Santos’ address, birth date, or other criminal history. No photographs of the person named in the judgments were produced to compare to Mr. Santos at the trial. The Court held this evidence was insufficient to establish the felony element of felony DUI. http://www.courts.wa.gov/opinions/pdf/289834.opn.doc.pdf
State v. Chacon Arreola: The Court reversed Mr. Chacon Arreola’s DUI, finding that the stop for a modified muffler was pretextual in violation of the Washington Constitution. A patrol officer had followed Mr. Chacon Arreola’s vehicle for over half a mile because it fit the description of a car reportedly driven by a suspected drunk driver. No details regarding the informant or the information provided are included in the record. Though the officer observed no signs of impaired driving, he claimed that the car was equipped with a modified muffler in violation of state vehicle equipment requirements. The officer pulled the vehicle over based on the muffler violation with the primary motive of investigating Mr. Chacon Arreola for a possible DUI. Though the officer testified at a motion hearing that the muffler may have caused him to stop and cite Mr. Chacon Arreola even absent suspicion of drunk driving, the criminal investigation was the primary motive for the stop. The officer further testified that he did not always stop and cite a driver upon noticing a noncompliant muffler. The Court found that the trial court’s finding that the officer was following Mr. Chacon Arreola to investigate a possible DUI and stopped him principally for that reason compel the conclusion that the stop was pretextual in violation of the Washington Constitution. The court observed that the infraction would have constituted sufficient justification for stopping Mr. Chacon Arreola under the Fourth Amendment to the United States Constitution, as the United States Supreme Court has held that an officer wishing to investigate a crime may stop a driver for any traffic infraction observed. However, the Washington Supreme Court, in Ladson, had expressed concern that due to the extensiveness of traffic regulation, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter." The Court ruled that the reasoning of Ladson compels the result that “a traffic stop is without authority of law where it cannot be constitutionally justified for its primary reason (speculative criminal investigation) but only for some other reason (enforcing the traffic code) which is at once lawfully sufficient but only a secondary reason. The Court found that the traffic stop that yielded the evidence on which Mr. Chacon Arreola was charged in this case was without authority of law because the reason for the stop – to investigate for drunk driving – was not exempt from the warrant requirement. http://www.courts.wa.gov/opinions/pdf/291642.opn.doc.pdf
In a dissent, Judge Brown argued that the Court should defer to the fact-finding discretion of the trial judge, who determined from disputed facts "an actual reason for the stop" was the muffler violation. The dissent argued that a stop can serve multiple, legal, complimentary purposes so long as an actual stop reason passes legal muster, and that officers should not be expected to be “blind to other potential concurring violations detected when investigating an actual stop reason.” http://www.courts.wa.gov/opinions/pdf/291642.dis.docx.pdf
Federal Law
Ninth Circuit Court of Appeals
United States v. Ibarra-Pino: The Court upheld Mr. Ibarra-Pino’s conviction for importation and possession of marijuana. The Court found that the district court did not err in disallowing a duress instruction. Contrary to Mr. Ibarra-Pino’s claims, the Court found that the district court did allow Mr. Ibarra-Pino to present evidence of a duress defense at trial, but agreed that Mr. Ibarra-Pino did not establish the elements of a duress defense. Specifically, the Court found that Mr. Ibarra-Pino had an opportunity to escape the threatened harm when confronted at the border by law enforcement, and before the search of his vehicle uncovered the drugs. Thus, the Court found, there was no error in the district court’s refusal to allow a duress defense or a jury instruction on duress.
In a concurrence, Judge Kozinski agreed that the district court did not preclude a duress defense prior to trial, but did allow Mr. Ibarra-Pino to present evidence of duress during the trial. The concurrence argued that there was no occasion in this matter to discuss whether the district court could properly have precluded a duress defense and tersely concluded that this is a difficult issue “that we should leave to a case where it matters.” http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-50341.pdf
United States v. Baker: Mr. Baker appealed his conviction for misdemeanor possession of methamphetamines, arguing that due to flagrant governmental misconduct the case should have been dismissed. The Court affirmed the conviction despite evidence that officers manufactured claims that Mr. Baker threw bags of methamphetamines out of his car during a high speed chase, leading prosecutors to charge him with a felony rather than a misdemeanor based upon the amount of methamphetamines found in his car. Mr. Baker then appealed conditions of probation, including one requiring him to submit to suspicionless searches and one requiring him to submit to DNA collection. The Court affirmed the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, reversed with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.
In a concurrence, Judge Graber agreed completely with the panel’s decision, however, wrote separately to highlight the Court’s continued reliance on the proposition that there is no difference between parolees and probationers in the context of suspicionless searches. The concurrence argued that this position directly contravenes Supreme Court precedent and forecloses the Ninth Circuit’s ability to resolve the question on the merits. The concurrence urged the court to convene en banc to correct this issue. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-10223.pdf
United States v. Dugan: The court found constitutional 18 U.S.C. § 922(g)(3), which makes it illegal for “any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Mr. Dugan, a convicted marijuana dealer who also had a business dealing in firearms, argued that the statute ran afoul of the Second Amendment because it deprives him of his constitutional right “to possess and carry weapons in case of confrontation.” The Court noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Supreme Court instructed that the Second Amendment right “is not unlimited.”
Specifically, the Court ruled that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…or laws imposing conditions and qualifications on the commercial sale of arms.” The Court ruled that the same dangers existed in allowing drug users to possess guns as with the mentally ill, and upheld the prohibition. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/08-10579.pdf
United States v. Rivera: The Court upheld Mr. Rivera’s sentence of 37 months for unlawfully attempting to re-enter the United States after having previously been removed. The Court found reasonable the district court’s increase in the offense level by eight levels because Mr. Rivera “previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.” The Court found that the district court properly determined that any one of Mr. Rivera’s three prior felony petty theft convictions would be sufficient to trigger the eight-level increase, because he had been sentenced to concurrent 16-month terms of imprisonment in state prison for his first and second offense and two years in state prison for his third offense. The Court rejected Mr. Rivera’s arguments that the crimes could not be considered aggravated felonies due to the sentencing structure of the crimes and the crime covered by the California Penal Code, finding that the documents submitted in this case establish that at least one of the convictions was based on a guilty plea to conduct that constitutes a generic theft offense, for which the term of imprisonment was at least a year, at that only one prior aggravated felony was necessary for the increase in sentencing levels. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/10-50313.pdf
United States v. Fitch: The Court upheld the exceptional sentence imposed on Mr. Fitch’s convictions for nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The Court found that the district court properly increased the sentencing after finding by clear and convincing evidence that Mr. Fitch had murdered his wife and that her death was the means he used to commit his crimes, despite the fact that Mr. Fitch was not charged with his wife’s murder and there was in fact no evidence she was deceased, only that she had disappeared. The Court held that a judge has broad powers to increase a sentence based even on uncharged conduct because a sentence may be based not just on the crimes for which the defendant was convicted but the manner in which the defendant committed the crimes. Here, the district court apparently believed that Mr. Fitch completed the crimes for which he was convicted by first killing his wife, and sentenced him accordingly. The Court found that the district court had authority to sentence Mr. Fitch as it did, and further that the sentence was a reasonable upward departure from the guidelines.
In a dissent, Judge Goodwin argued that, while the evidence of aggravated criminal exploitation of the victim in this case would support an upward departure from the sentencing guidelines, the dissent could not agree there was clear and convincing evidence from which the district court could conclude that Mr. Fitch committed premeditated murder in connection with the fraud charged. The dissent pointed out there was no evidence that Mr. Fitch’s wife was dead, much less evidence of how she died or the degree of Mr. Fitch’s involvement in her disappearance. The dissent further observed that the death of Mr. Fitch’s wife was not a necessary predicate to the fraud committed, and that the district court could not have evaluated the dangerousness of Mr. Fitch’s conduct or the extent to which his wife’s presumed death was intended or knowingly risked because the record is silent on these factors. The only facts in the record are that Mr. Fitch’s wife disappeared and Mr. Fitch immediately exploited her disappearance for his own
benefit. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/07-10607.pdf
Washington State Law
Washington State Supreme Court
Personal Restraint of Talley: The Court held that former RCW 9.92.151 (2004) requires a county jail to provide opportunities for an inmate who is yet to be sentenced to earn credit toward early release, also known as "good-time" credit. As the Skamania County Jail and the Department of Corrections did not provide such opportunities to Mr. Talley prior to his criminal conviction, the Court held that the entities were in violation of former RCW 9.92.151, and that Mr. Talley was entitled to good-time credit at the statutory maximum rate of 15 percent. Mr. Talley also argued that the policy violated the equal protection clause of the United States Constitution; however, the Court did not reach that argument. http://www.courts.wa.gov/opinions/pdf/832846.opn.pdf
Personal Restraint of Rhome: The Court held that the state and federal constitutions do not require independent findings of fact that a defendant is competent to waive counsel and represent himself at trial. The Court rejected Mr. Rhome’s arguments that the sixth and fourteenth amendments to the federal constitution and the due process clause in the state constitution authorized a separate inquiry into his mental competency, and failure to do so constituted a violation of his rights under those amendments. The Court reasoned that relevant case law imposed no such standards, but merely did not find fault with courts that undertook such an inquiry, and that mental health status is but one factor that may be considered in determining the validity of a waiver. The Court further found that the trial court’s colloquy in this matter, during which the trial court advised Mr. Rhome of the risks of representing himself and ensured he understood the significance of the undertaking were sufficient to secure a valid waiver of counsel, notwithstanding that the court did not address Mr. Rhome’s known mental health issues during the colloquy. http://www.courts.wa.gov/opinions/pdf/837881.opn.pdf
State v. Caldwell: Mr. Caldwell and co-defendant John Gordon were each charged with second degree murder with two aggravating factors, deliberate cruelty and particular vulnerability of the victim. The jury was instructed to determine whether the aggravators were present, but the instructions did not define "deliberate cruelty" or "particular vulnerability." The defendants did not object to the instructions on that basis, and were found guilty of the crime and the aggravators applied. On appeal, the court found that the failure to provide detailed instructions defining the meaning of "deliberate cruelty" or "particular vulnerability" was not a manifest error of constitutional magnitude that may be addressed for the first time on appeal. The Court reversed the Court of Appeals’ alternate ruling, finding that the lower court mistakenly relied upon Apprendi and Ring to hold that the error could be characterized as failing to properly instruct on an element of the aggravated crime. The court reasoned that Apprendi and Ring do not dictate the level of detail required in an instruction setting forth aggravating factors, the statue at issue in this case does not define or elaborate on the meaning of “deliberate cruelty" or "particular vulnerability," and the jury instructions follow the statute. The omission of additional terms is not an error of constitutional magnitude. http://www.courts.wa.gov/opinions/pdf/842400.opn.pdf
Division One Court of Appeals
State v. Strizheus: The court affirmed the trial court’s exclusion of other suspect evidence that Mr. Strizheus claimed established that his son Vladimir committed the crime of attempting to murder Mr. Strizheus’ wife, and Vladimir’s mother, Valentina. The Court found that Mr. Strizheus did not meet his burden of showing facts or circumstances clearly pointing to Vladimir as the person who committed the crime. The Court reasoned that there was no evidence establishing a nexus between Vladimir and the crime, no physical evidence connecting Vladimir to the crime, no eyewitness testimony placing Vladimir at the scene, and no identification of Vladimir by Valentina as her attacker. In fact, the only evidence Mr. Strizheus relied upon was a statement made by his son when his son was admittedly intoxicated, and which his son later recanted. http://www.courts.wa.gov/opinions/pdf/64077-1.pub.doc.pdf
State v. Peters: The Court reversed and remanded for a new trial charges against Mr. Peters, who had been accused of felony murder in the second degree based on the predicate offense of assault and manslaughter in the first degree with a firearm, as a result of the shooting death of his six year old daughter. The jury had also been instructed on the lesser-included offense of manslaughter in the second degree The jury found Mr. Peters not guilty of felony murder but guilty of manslaughter in the first degree. However, the trial court erroneously instructed the jury that in order to convict Mr. Peters of manslaughter in the first degree, the State need only prove that he knew of and disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial risk that death may occur." The Court found that the jury instruction was not harmless beyond a reasonable doubt, and the uncontroverted evidence did not establish that Mr. Peters knew of and disregarded a substantial risk that death may occur. http://www.courts.wa.gov/opinions/pdf/64568-4.pub..doc.pdf
State v. Read: The Court found that there was sufficient evidence to uphold Mr. Read’s conviction for malicious harassment when Mr. Read was found to have used “virulent racial epithets” coupled with aggressive and intimidating conduct when confronting an Ethiopian parking lot attendant regarding a ticket he had been issued for parking over two spaces in a restaurant parking lot. After calling the victim a nigger, blaming her for the issuance of the ticket, making advances toward her on foot and then in his vehicle, the victim hid, terrified in the bushes and called 911 for police assistance. The Court found that this record established that Mr. Read intentionally and maliciously harassed the victim because her race, ethnicity, or national origin. http://www.courts.wa.gov/opinions/pdf/65064-5.pub..doc.pdf
Division Two Court of Appeals
State v. Corona: The Court reversed and remanded Mr. Corona’s case for a new sentencing hearing, as the court had imposed a $3,000.00 drug clean-up fine after convicting Mr. Corona of delivery involving less than two kilograms of methamphetamines. The Court found, in agreement with the State’s concession on the matter, that the trial court abused its discretion when it imposed the fine, as it erroneously believed that the fine was mandatory. However, under RCW 69.50.401, such fine is discretionary in offenses such as the one of which Mr. Corona was convicted. http://www.courts.wa.gov/opinions/pdf/41436-8.11.doc.pdf
Division Three Court of Appeals
State v. Guerrero: In this partially published opinion, Mr. Guerrero appealed the denial of sentencing under the drug offender sentencing alternative (DOSA). The Court found no error in the trial court’s refusal to impose the DOSA sentence. The Court further found that no chemical dependency screening was required, contrary to Mr. Guerrero’s argument, under the DOSA statutes, and the trial court did not commit error in failing to order such a screening. http://www.courts.wa.gov/opinions/pdf/289711.opn.doc.pdf
State v. Santos: The Court reversed Mr. Santos’ felony DUI conviction and remanded for entry of a conviction and sentence for gross misdemeanor DUI. The Court found that the State did not prove that Mr. Santos and the person named in documents purporting to show four prior DUI convictions were one and the same. The Court reasoned that the fact of the prior offenses is an essential element of felony DUI that the State must prove beyond a reasonable doubt, as this is the distinguishing factor between felony and misdemeanor DUI. Though the State introduced into evidence certified copies of four DUI judgments to show that Mr. Santos had prior offenses within ten years, generally accepted as the best evidence of a prior conviction, the Court found, based on prior precedent in bail jumping cases that those certified copies must also show beyond a reasonable doubt that “the person named therein is the same person on trial.” The showing, the Court found, cannot be based on the certified copy of the judgment, but must be based on independent evidence that "the person named therein is the defendant in the preset action," such as booking photographs or fingerprints, eyewitness identification, or distinctive personal information.In the present case, the Court determined that no evidence linked Mr. Santos to the prior DUI judgments: none of the information could be compared to Mr. Santos by simple observation and none could be compared to any other independent evidence that could be linked to Mr. Santos. The Court observed that the State had produced no evidence of Mr. Santos’ address, birth date, or other criminal history. No photographs of the person named in the judgments were produced to compare to Mr. Santos at the trial. The Court held this evidence was insufficient to establish the felony element of felony DUI. http://www.courts.wa.gov/opinions/pdf/289834.opn.doc.pdf
State v. Chacon Arreola: The Court reversed Mr. Chacon Arreola’s DUI, finding that the stop for a modified muffler was pretextual in violation of the Washington Constitution. A patrol officer had followed Mr. Chacon Arreola’s vehicle for over half a mile because it fit the description of a car reportedly driven by a suspected drunk driver. No details regarding the informant or the information provided are included in the record. Though the officer observed no signs of impaired driving, he claimed that the car was equipped with a modified muffler in violation of state vehicle equipment requirements. The officer pulled the vehicle over based on the muffler violation with the primary motive of investigating Mr. Chacon Arreola for a possible DUI. Though the officer testified at a motion hearing that the muffler may have caused him to stop and cite Mr. Chacon Arreola even absent suspicion of drunk driving, the criminal investigation was the primary motive for the stop. The officer further testified that he did not always stop and cite a driver upon noticing a noncompliant muffler. The Court found that the trial court’s finding that the officer was following Mr. Chacon Arreola to investigate a possible DUI and stopped him principally for that reason compel the conclusion that the stop was pretextual in violation of the Washington Constitution. The court observed that the infraction would have constituted sufficient justification for stopping Mr. Chacon Arreola under the Fourth Amendment to the United States Constitution, as the United States Supreme Court has held that an officer wishing to investigate a crime may stop a driver for any traffic infraction observed. However, the Washington Supreme Court, in Ladson, had expressed concern that due to the extensiveness of traffic regulation, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter." The Court ruled that the reasoning of Ladson compels the result that “a traffic stop is without authority of law where it cannot be constitutionally justified for its primary reason (speculative criminal investigation) but only for some other reason (enforcing the traffic code) which is at once lawfully sufficient but only a secondary reason. The Court found that the traffic stop that yielded the evidence on which Mr. Chacon Arreola was charged in this case was without authority of law because the reason for the stop – to investigate for drunk driving – was not exempt from the warrant requirement. http://www.courts.wa.gov/opinions/pdf/291642.opn.doc.pdf
In a dissent, Judge Brown argued that the Court should defer to the fact-finding discretion of the trial judge, who determined from disputed facts "an actual reason for the stop" was the muffler violation. The dissent argued that a stop can serve multiple, legal, complimentary purposes so long as an actual stop reason passes legal muster, and that officers should not be expected to be “blind to other potential concurring violations detected when investigating an actual stop reason.” http://www.courts.wa.gov/opinions/pdf/291642.dis.docx.pdf
Federal Law
Ninth Circuit Court of Appeals
United States v. Ibarra-Pino: The Court upheld Mr. Ibarra-Pino’s conviction for importation and possession of marijuana. The Court found that the district court did not err in disallowing a duress instruction. Contrary to Mr. Ibarra-Pino’s claims, the Court found that the district court did allow Mr. Ibarra-Pino to present evidence of a duress defense at trial, but agreed that Mr. Ibarra-Pino did not establish the elements of a duress defense. Specifically, the Court found that Mr. Ibarra-Pino had an opportunity to escape the threatened harm when confronted at the border by law enforcement, and before the search of his vehicle uncovered the drugs. Thus, the Court found, there was no error in the district court’s refusal to allow a duress defense or a jury instruction on duress.
In a concurrence, Judge Kozinski agreed that the district court did not preclude a duress defense prior to trial, but did allow Mr. Ibarra-Pino to present evidence of duress during the trial. The concurrence argued that there was no occasion in this matter to discuss whether the district court could properly have precluded a duress defense and tersely concluded that this is a difficult issue “that we should leave to a case where it matters.” http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-50341.pdf
United States v. Baker: Mr. Baker appealed his conviction for misdemeanor possession of methamphetamines, arguing that due to flagrant governmental misconduct the case should have been dismissed. The Court affirmed the conviction despite evidence that officers manufactured claims that Mr. Baker threw bags of methamphetamines out of his car during a high speed chase, leading prosecutors to charge him with a felony rather than a misdemeanor based upon the amount of methamphetamines found in his car. Mr. Baker then appealed conditions of probation, including one requiring him to submit to suspicionless searches and one requiring him to submit to DNA collection. The Court affirmed the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, reversed with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.
In a concurrence, Judge Graber agreed completely with the panel’s decision, however, wrote separately to highlight the Court’s continued reliance on the proposition that there is no difference between parolees and probationers in the context of suspicionless searches. The concurrence argued that this position directly contravenes Supreme Court precedent and forecloses the Ninth Circuit’s ability to resolve the question on the merits. The concurrence urged the court to convene en banc to correct this issue. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-10223.pdf
United States v. Dugan: The court found constitutional 18 U.S.C. § 922(g)(3), which makes it illegal for “any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Mr. Dugan, a convicted marijuana dealer who also had a business dealing in firearms, argued that the statute ran afoul of the Second Amendment because it deprives him of his constitutional right “to possess and carry weapons in case of confrontation.” The Court noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Supreme Court instructed that the Second Amendment right “is not unlimited.”
Specifically, the Court ruled that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…or laws imposing conditions and qualifications on the commercial sale of arms.” The Court ruled that the same dangers existed in allowing drug users to possess guns as with the mentally ill, and upheld the prohibition. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/08-10579.pdf
United States v. Rivera: The Court upheld Mr. Rivera’s sentence of 37 months for unlawfully attempting to re-enter the United States after having previously been removed. The Court found reasonable the district court’s increase in the offense level by eight levels because Mr. Rivera “previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.” The Court found that the district court properly determined that any one of Mr. Rivera’s three prior felony petty theft convictions would be sufficient to trigger the eight-level increase, because he had been sentenced to concurrent 16-month terms of imprisonment in state prison for his first and second offense and two years in state prison for his third offense. The Court rejected Mr. Rivera’s arguments that the crimes could not be considered aggravated felonies due to the sentencing structure of the crimes and the crime covered by the California Penal Code, finding that the documents submitted in this case establish that at least one of the convictions was based on a guilty plea to conduct that constitutes a generic theft offense, for which the term of imprisonment was at least a year, at that only one prior aggravated felony was necessary for the increase in sentencing levels. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/10-50313.pdf
United States v. Fitch: The Court upheld the exceptional sentence imposed on Mr. Fitch’s convictions for nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The Court found that the district court properly increased the sentencing after finding by clear and convincing evidence that Mr. Fitch had murdered his wife and that her death was the means he used to commit his crimes, despite the fact that Mr. Fitch was not charged with his wife’s murder and there was in fact no evidence she was deceased, only that she had disappeared. The Court held that a judge has broad powers to increase a sentence based even on uncharged conduct because a sentence may be based not just on the crimes for which the defendant was convicted but the manner in which the defendant committed the crimes. Here, the district court apparently believed that Mr. Fitch completed the crimes for which he was convicted by first killing his wife, and sentenced him accordingly. The Court found that the district court had authority to sentence Mr. Fitch as it did, and further that the sentence was a reasonable upward departure from the guidelines.
In a dissent, Judge Goodwin argued that, while the evidence of aggravated criminal exploitation of the victim in this case would support an upward departure from the sentencing guidelines, the dissent could not agree there was clear and convincing evidence from which the district court could conclude that Mr. Fitch committed premeditated murder in connection with the fraud charged. The dissent pointed out there was no evidence that Mr. Fitch’s wife was dead, much less evidence of how she died or the degree of Mr. Fitch’s involvement in her disappearance. The dissent further observed that the death of Mr. Fitch’s wife was not a necessary predicate to the fraud committed, and that the district court could not have evaluated the dangerousness of Mr. Fitch’s conduct or the extent to which his wife’s presumed death was intended or knowingly risked because the record is silent on these factors. The only facts in the record are that Mr. Fitch’s wife disappeared and Mr. Fitch immediately exploited her disappearance for his own
benefit. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/07-10607.pdf
Monday, July 25, 2011
Sunday, July 17, 2011
Criminal Case Law Update, Week Ending 7-8-11
The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court
State v. Eserjose: The Court affirmed Mr. Eserjose’s conviction for second degree burglary, holding that even though officers exceeded the scope of the invitation to enter the home and arrested Mr. Eserjose in a private area, thus rendering the arrest illegal, Mr. Eserjose’s confession was nevertheless properly admitted. The Court found that the confession was sufficiently attenuated from the arrest so as to not be fruit of the poisonous tree, because the confession was not attributable to the illegal arrest. http://www.courts.wa.gov/opinions/pdf/824916.opn.pdf
In a concurrence, Justice Madsen agreed that the Court reached the correct result in admitting Mr. Eserjose’s confession because deputies did not obtain the confession by exploiting any unlawful act. However, the justice wrote separately to argue that the lead opinion applies an attenuation analysis where none is required. http://www.courts.wa.gov/opinions/pdf/824916.co1.pdf
In a dissent, Justice Charles Johnson argued that the lead opinion’s allowance of an attenuation exception to the exclusionary rule “effectively removes the incentive for police officers to secure a warrant before invading a citizen's home and offers no remedy for the constitutional violation.” The dissent further argued that the attenuation exception was at odds with the protections given by article I, section 7 of the Washington State Constitution. The dissent pointed out that, “[j]ust like the inevitable discovery exception rejected in Winterstein and the good faith exception rejected in Afana, this attenuation exception allows illegally obtained evidence to be admitted.” Instead, the dissent argued, any evidence obtained in violation of a person’s constitutional rights lacks authority of law and must be suppressed. http://www.courts.wa.gov/opinions/pdf/824916.no1.pdf
State v. Jones: The Court affirmed the trial court’s denial of credit towards Mr. Jones’ sentence of community custody for time he spent incarcerated in excess of his amended sentence of incarceration. In so holding, the Court overruled Division Three’s 2008 holding in In Re Knippling, under which that court found that community custody begins at completion of the sentence of confinement and the offender is therefore entitled to credit toward a sentence of community custody for time spent incarcerated in excess of the sentence of incarceration. The Court reasoned that Division Three’s holding ignores the plain language of the sentencing reform act, which specifies that any period of community custody shall toll during any period of time the offender is in confinement "for any reason." The Court found that requiring community custody to begin upon release from confinement is consistent with the statutory definition of "community custody" requiring it to be served in the community. http://www.courts.wa.gov/opinions/pdf/834512.opn.pdf
In a dissent, Justice Stephens argued that the statute clearly stated that Mr. Jones term of community custody was set to begin upon the tem of incarceration, and that the additional 30 days that Mr. Jones was wrongfully confined beyond the term of his sentence should have been credited toward his term of community custody. The dissent further pointed out that there were provisions in the sentencing reform act allowing for such wrongful detention to be applied to community custody, but none that required tolling of the term of community custody during incarceration. http://www.courts.wa.gov/opinions/pdf/834512.no1.pdf
State v. Donaghe: The Court affirmed the denial of Mr. Donaghe’s motion for a certificate of discharge to restore his voting rights. The Court found that the trial court had the authority to deny his motion, that the community placement portion of his sentence was properly tolled during his pre-commitment confinement and civil confinement as a sexually violent predator at the Special Commitment Center, and Mr. Donaghe was therefore not unconstitutionally disenfranchised. http://www.courts.wa.gov/opinions/pdf/837384.opn.pdf
In a dissent, Justice Stephens argued that Mr. Donaghe’s detention under a civil commitment scheme should not have triggered the tolling provisions under the SRA. The dissent argued that the tolling statute and the definition of confinement that triggers such tolling are contained in the SRA and apply to provisions therein, not to an unrelated civil commitment scheme. The dissent noted that by extending the tolling provisions to SVP commitment the majority threatened to go down a slippery slope that could include mental health detention or voluntary inpatient treatment at a State-contracted center. The dissent concluded that Mr. Donaghe had served out his term of community placement at the conclusion of his sentence, and should have been granted a certificate of discharge. http://www.courts.wa.gov/opinions/pdf/837384.no1.pdf
Division Two Court of Appeals
State v. Wilson: The court declined to allow Ms. Wilson to withdraw her guilty plea, finding that the trial court did not abuse its discretion in initially denying her motion to withdraw the plea. Though Ms. Wilson’s case was not yet final when the United States Supreme Court issued its ruling in Gant, the Court held that Ms. Wilson’s guilty plea foreclosed subsequent challenges to alleged constitutional violations. The Court held that a “'guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt.'" Citing State v. Amos, 147 Wn. App. 217, 225-26, 195 P.3d 564 (2008). Finally, the Court noted that the United States Supreme Court has also rejected the proposition that a change in law invalidates a guilty plea. The Court found that Ms. Wilson did not challenge her plea on permissible collateral grounds and had waived a Gant challenge. http://www.courts.wa.gov/opinions/pdf/39789-7-11.doc.pdf
State v. Mosteller: In this partially published opinion, the court held that because Mr. Mosteller failed to object to the administration of antipsychotic medications during trial, he waived his right to challenge the trial court’s order on appeal and, further, due to Mr. Mosteller’s failure to object, there was no evidence he was actually forcibly medicated during the trial. Further, the Court found that the trial court’s administration of the medications without first considering all of the Sell factors did not prevent Mr. Mosteller from receiving a fair trial. http://www.courts.wa.gov/opinions/pdf/39954-7.11.doc.pdf
Division Three Court of Appeals
State v. Chavez: The Court found ineffective assistance of counsel in the entry of Mr. Chavez’ guilty plea, and reversed the trial court’s denial of Mr. Chavez’ motion to withdraw the plea. The Court found that the filing of an “Anders brief” by substitute counsel after Mr. Chavez’ original counsel was allowed to withdraw based on a potential conflict of interest that did not develop any potential claim of conflict following the withdrawal of the original lawyer and suggested that counsel believed his client’s claim was frivolous constituted ineffective assistance. The Court observed that an Anders brief is allowed on appeal but there is no precedent or other authority for the use of such a brief in a trial court. http://www.courts.wa.gov/opinions/pdf/289281.opn.doc.pdf
In a dissent, Judge Korsmo argued that Mr. Chavez presented his argument for withdrawing his guilty plea to the trial court, and the trial court correctly determined that no manifest necessity existed for withdrawing the guilty plea. Therefore, the dissent argued that the judgment should have been affirmed. http://www.courts.wa.gov/opinions/pdf/289281.dis.doc.pdf
State v. Contreras: The court upheld Mr. Contreras’ conviction for possession of a stolen car and the suspension of his driver’s license because the crime involved the use of that car. The Court concluded that the statute of limitations had not run on the offense, despite the fact that Mr. Contreras took possession of the car in 2004, because he continued to possess and use the car up to the date he was charged with the crime. Further, the Court found that the car was used for purposes of a statute that required suspension of a driver’s license when a vehicle is used in the commission of a crime when Mr. Contreras drove the vehicle to a licensing station to attempt to relicense the vehicle using false VIN tags from his old car. http://www.courts.wa.gov/opinions/pdf/284417.opn.doc.pdf
Federal Law
United States Supreme Court
United States v. Juvenile Male: In a per Curiam opinion, the Court dismissed as moot an appeal from a Court of Appeals holding that the requirements of SORNA violate the Ex Post Facto Clause of the Constitution when applied to juveniles adjudicated as delinquent before SORNA’s enactment. The Court concluded that the Court of Appeals had no authority to enter such a judgment because it had no live controversy before it, as the defendant at issue had turned 21 and his registration requirement under SORNA had ceased prior to the hearing of the appeal. The court reasoned that there was no continuing injury or collateral consequence to allow the defendant to continue an appeal beyond the expiration of his sentence. Justices Ginsburg, Breyer, and Sotomayor argued for remand to the Ninth Circuit for determination of whether the case was moot in the first instance. Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/09-940.pdf
Garcia v. Texas: In a per Curiam opinion, the Court declined to give Mr. Garcia a stay of execution imposed upon his conviction for rape and murder of a 16-year-old girl. The Court disagreed with Mr. Garcia’s argument that his conviction was obtained in violation of the Vienna Convention on Consular Relations (Vienna Convention). The Court found that Mr. Garcia’s argument is foreclosed by MedellÃn v. Texas, in which the Supreme Court held that the Avena decision by the International Court of Justice finding that a court had violated the Vienna Convention by failing to advise a defendant of his right to consular assistance was not directly enforceable law, and found similarly with regard to the President’s Memorandum purporting to implement that decision. The Court likewise declined requests by the United States to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision.
In a dissent written by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan argued in favor of the stay of execution. The dissent argued that following through with the execution would place the United States in “irreparable breach of its obligations under international law.” The dissent pointed out that the United States has ratified the Vienna Convention and is therefore bound to inform an arrested foreign national, such as Mr. Garcia, that he has a right to request the assistance of his country’s consulate. The dissent observed that the Court is ignoring “the appeal of the President in a matter related to foreign affairs,” substitutes its own views about the likelihood of congressional action for the views of the Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. http://www.supremecourt.gov/opinions/10pdf/11-5001.pdf
Ninth Circuit Court of Appeals
United States v. Gonzalez-Melchor: The Court reversed and remanded Mr. Gonzalez-Melchor’s conviction and sentence for re-entry after deportation, finding that the immigration judge failed to advise Mr. Gonzalez-Melchor of his eligibility for voluntary departure and remanding for proceedings to determine whether Mr. Gonzalez-Melchor was prejudiced by this failure. The Court further found that the appeal waiver signed by Mr. Gonzalez-Melchor at sentencing in exchange for a reduced sentence is invalid and unenforceable. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/10-50111.pdf
Hurles v. Ryan: The court reversed the district court’s denial of Mr. Hurles’ petition for a writ of habeas corpus from his murder conviction and death sentence. Specifically, the court reversed the district court’s denial of Mr. Hurles’ judicial bias claim, finding that the trial judge’s action in becoming involved as a party in an interlocutory appeal, attempted but was denied standing to appear as an adversary, and then presided over Mr. Hurles’ murder trial and single-handedly determined his death sentence demonstrated bias and forced the court to conclude that Mr. Hurles was denied his right to due process. The Court remanded to the district court with instructions to grant a writ of habeas corpus as to Petitioner’s sentence unless the State of Arizona elects, within 90 days of the issuance of the mandate, to resentence Petitioner before a jury and presided over by a judge other than the original sentencing judge in this case.
In a dissent, Judge Ikuta argued that the Court’s decision ignores AEDPA’s command to defer to a state court decision unless it is objectively unreasonable, and argued that the AEDPA analysis here is straightforward. The dissent reported that, in an appeal of a denial of Mr. Hurles’ motion for appointment of a second attorney, the state Attorney General submitted a brief in the trial judge’s name defending the ruling. It was this participation that Mr. Hurles, over seven years later, claimed violated his due process rights and merited the judge’s recusal from further participation in this case. The trial judge denied that motion. The dissent observed that there is no clearly established Supreme Court authority that even hints the trial court’s decision was wrong, and argued that the court should have deferred to the trial court decision and denied Mr. Hurles’ petition. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/07/08-99032.pdf
United States v. Evanston: In a case of first impression, the Court held that a district court may not, over defense objection after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal. The Court concluded that allowing such a procedure in a criminal trial is an abuse of the discretion accorded district courts in the management of jury deliberations. The Court reasoned that allowing such supplemental argument addressing factual matters permitted counsel to look inside the jury’s deliberations and focus arguments to those factual concerns the court had asked the jury to reveal, the process, in form and substance, invaded the jury’s deliberations, resulting in impermissible coercion. The court vacated the verdict and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10159.pdf
United States v. Rahman: The Court held that Mr. Rahman’s waiver of his right to appeal his conviction extended to the denial of his subsequent motion to withdraw his guilty plea. The Court reasoned that an appeal from the denial of his motion to withdraw his plea is an appeal from his convictions. Further, the Court found that Mr. Rahman’s waiver of his right to appeal was made voluntarily and there was no evidence of ineffective assistance of counsel. However, the Court left open the possibility that Mr. Rahman might raise an ineffective assistance of counsel claim in a subsequent collateral attack. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10293.pdf
Schleining v. Thomas: The Court held that a prisoner is not eligible for federal Good Conduct Time (GCT) for time he served in state prison on state charges, before being sentenced on a related charge in federal court. The Court found that GCT can accrue only on the time a prisoner has “actually served” on his federal sentence, and other jurisdictions have determined that a federal sentence cannot begin before the defendant has been sentenced in federal court. The Court found the logic of those jurisdictions persuasive, and adopted it in this case. The court affirmed the district court’s denial of Mr. Schleining’s petition for a writ of habeas corpus and found that the formerly calculated release date is correct. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-35792.pdf
United States v. Snyder: Mr. Snyder appealed the district court’s determination that second degree burglary in Oregon was a predicate offense under the ACCA for purposes of imposing a sentencing enhancement. The government cross-appealed the district court’s decision that a conviction for felony attempt to elude in Oregon was not a predicate offense under the ACCA. The Court found that the district court was correct that the Oregon burglary conviction was a predicate offense under the modified categorical approach despite precedent to the contrary, as the original indictment together with the judgment of conviction proved that Mr. Snyder necessarily admitted to facts constituting generic burglary, which is a predicate offense under the ACCA. Additionally, the Court found that the felony attempt to elude conviction was a violent felony under the ACCA. The Court then remanded for resentencing under the mandatory minimum sentence of 15 years, with credit for time served. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/30/10-30148.pdf
United States v. Chapman: The Court upheld the district court’s refusal to award Mr. Chapman and his co-defendants attorneys fees under the Hyde Amendment as a result of a dismissed indictment with prejudice for the government’s failure to meet its disclosure obligations under Brady in this securities fraud matter. The defendants had moved to re-open the case after a previous denial of an attorney fee award, citing the discovery of an internal government memorandum written shortly after dismissal of the indictment but not discovered until after the Ninth Circuit had decided the prior appeal. The Court concluded that the district court did not err in declining to reopen the case. In so concluding, the Court reasoned that the memo discovered by the defense “does not provide a sufficient basis to conclude that the government’s failure to disclose impeachment evidence suggested substantive weakness in the merits of the case that made the failure to disclose relevant to innocence.” To the contrary, the Court found that the district court had made clear that the initial dismissal was intended as a sanction for misconduct, and not as a judgment on the merits that could render the defendants prevailing parties for the purposes of an attorney fee award. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-10338.pdf
Washington State Law
Washington State Supreme Court
State v. Eserjose: The Court affirmed Mr. Eserjose’s conviction for second degree burglary, holding that even though officers exceeded the scope of the invitation to enter the home and arrested Mr. Eserjose in a private area, thus rendering the arrest illegal, Mr. Eserjose’s confession was nevertheless properly admitted. The Court found that the confession was sufficiently attenuated from the arrest so as to not be fruit of the poisonous tree, because the confession was not attributable to the illegal arrest. http://www.courts.wa.gov/opinions/pdf/824916.opn.pdf
In a concurrence, Justice Madsen agreed that the Court reached the correct result in admitting Mr. Eserjose’s confession because deputies did not obtain the confession by exploiting any unlawful act. However, the justice wrote separately to argue that the lead opinion applies an attenuation analysis where none is required. http://www.courts.wa.gov/opinions/pdf/824916.co1.pdf
In a dissent, Justice Charles Johnson argued that the lead opinion’s allowance of an attenuation exception to the exclusionary rule “effectively removes the incentive for police officers to secure a warrant before invading a citizen's home and offers no remedy for the constitutional violation.” The dissent further argued that the attenuation exception was at odds with the protections given by article I, section 7 of the Washington State Constitution. The dissent pointed out that, “[j]ust like the inevitable discovery exception rejected in Winterstein and the good faith exception rejected in Afana, this attenuation exception allows illegally obtained evidence to be admitted.” Instead, the dissent argued, any evidence obtained in violation of a person’s constitutional rights lacks authority of law and must be suppressed. http://www.courts.wa.gov/opinions/pdf/824916.no1.pdf
State v. Jones: The Court affirmed the trial court’s denial of credit towards Mr. Jones’ sentence of community custody for time he spent incarcerated in excess of his amended sentence of incarceration. In so holding, the Court overruled Division Three’s 2008 holding in In Re Knippling, under which that court found that community custody begins at completion of the sentence of confinement and the offender is therefore entitled to credit toward a sentence of community custody for time spent incarcerated in excess of the sentence of incarceration. The Court reasoned that Division Three’s holding ignores the plain language of the sentencing reform act, which specifies that any period of community custody shall toll during any period of time the offender is in confinement "for any reason." The Court found that requiring community custody to begin upon release from confinement is consistent with the statutory definition of "community custody" requiring it to be served in the community. http://www.courts.wa.gov/opinions/pdf/834512.opn.pdf
In a dissent, Justice Stephens argued that the statute clearly stated that Mr. Jones term of community custody was set to begin upon the tem of incarceration, and that the additional 30 days that Mr. Jones was wrongfully confined beyond the term of his sentence should have been credited toward his term of community custody. The dissent further pointed out that there were provisions in the sentencing reform act allowing for such wrongful detention to be applied to community custody, but none that required tolling of the term of community custody during incarceration. http://www.courts.wa.gov/opinions/pdf/834512.no1.pdf
State v. Donaghe: The Court affirmed the denial of Mr. Donaghe’s motion for a certificate of discharge to restore his voting rights. The Court found that the trial court had the authority to deny his motion, that the community placement portion of his sentence was properly tolled during his pre-commitment confinement and civil confinement as a sexually violent predator at the Special Commitment Center, and Mr. Donaghe was therefore not unconstitutionally disenfranchised. http://www.courts.wa.gov/opinions/pdf/837384.opn.pdf
In a dissent, Justice Stephens argued that Mr. Donaghe’s detention under a civil commitment scheme should not have triggered the tolling provisions under the SRA. The dissent argued that the tolling statute and the definition of confinement that triggers such tolling are contained in the SRA and apply to provisions therein, not to an unrelated civil commitment scheme. The dissent noted that by extending the tolling provisions to SVP commitment the majority threatened to go down a slippery slope that could include mental health detention or voluntary inpatient treatment at a State-contracted center. The dissent concluded that Mr. Donaghe had served out his term of community placement at the conclusion of his sentence, and should have been granted a certificate of discharge. http://www.courts.wa.gov/opinions/pdf/837384.no1.pdf
Division Two Court of Appeals
State v. Wilson: The court declined to allow Ms. Wilson to withdraw her guilty plea, finding that the trial court did not abuse its discretion in initially denying her motion to withdraw the plea. Though Ms. Wilson’s case was not yet final when the United States Supreme Court issued its ruling in Gant, the Court held that Ms. Wilson’s guilty plea foreclosed subsequent challenges to alleged constitutional violations. The Court held that a “'guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt.'" Citing State v. Amos, 147 Wn. App. 217, 225-26, 195 P.3d 564 (2008). Finally, the Court noted that the United States Supreme Court has also rejected the proposition that a change in law invalidates a guilty plea. The Court found that Ms. Wilson did not challenge her plea on permissible collateral grounds and had waived a Gant challenge. http://www.courts.wa.gov/opinions/pdf/39789-7-11.doc.pdf
State v. Mosteller: In this partially published opinion, the court held that because Mr. Mosteller failed to object to the administration of antipsychotic medications during trial, he waived his right to challenge the trial court’s order on appeal and, further, due to Mr. Mosteller’s failure to object, there was no evidence he was actually forcibly medicated during the trial. Further, the Court found that the trial court’s administration of the medications without first considering all of the Sell factors did not prevent Mr. Mosteller from receiving a fair trial. http://www.courts.wa.gov/opinions/pdf/39954-7.11.doc.pdf
Division Three Court of Appeals
State v. Chavez: The Court found ineffective assistance of counsel in the entry of Mr. Chavez’ guilty plea, and reversed the trial court’s denial of Mr. Chavez’ motion to withdraw the plea. The Court found that the filing of an “Anders brief” by substitute counsel after Mr. Chavez’ original counsel was allowed to withdraw based on a potential conflict of interest that did not develop any potential claim of conflict following the withdrawal of the original lawyer and suggested that counsel believed his client’s claim was frivolous constituted ineffective assistance. The Court observed that an Anders brief is allowed on appeal but there is no precedent or other authority for the use of such a brief in a trial court. http://www.courts.wa.gov/opinions/pdf/289281.opn.doc.pdf
In a dissent, Judge Korsmo argued that Mr. Chavez presented his argument for withdrawing his guilty plea to the trial court, and the trial court correctly determined that no manifest necessity existed for withdrawing the guilty plea. Therefore, the dissent argued that the judgment should have been affirmed. http://www.courts.wa.gov/opinions/pdf/289281.dis.doc.pdf
State v. Contreras: The court upheld Mr. Contreras’ conviction for possession of a stolen car and the suspension of his driver’s license because the crime involved the use of that car. The Court concluded that the statute of limitations had not run on the offense, despite the fact that Mr. Contreras took possession of the car in 2004, because he continued to possess and use the car up to the date he was charged with the crime. Further, the Court found that the car was used for purposes of a statute that required suspension of a driver’s license when a vehicle is used in the commission of a crime when Mr. Contreras drove the vehicle to a licensing station to attempt to relicense the vehicle using false VIN tags from his old car. http://www.courts.wa.gov/opinions/pdf/284417.opn.doc.pdf
Federal Law
United States Supreme Court
United States v. Juvenile Male: In a per Curiam opinion, the Court dismissed as moot an appeal from a Court of Appeals holding that the requirements of SORNA violate the Ex Post Facto Clause of the Constitution when applied to juveniles adjudicated as delinquent before SORNA’s enactment. The Court concluded that the Court of Appeals had no authority to enter such a judgment because it had no live controversy before it, as the defendant at issue had turned 21 and his registration requirement under SORNA had ceased prior to the hearing of the appeal. The court reasoned that there was no continuing injury or collateral consequence to allow the defendant to continue an appeal beyond the expiration of his sentence. Justices Ginsburg, Breyer, and Sotomayor argued for remand to the Ninth Circuit for determination of whether the case was moot in the first instance. Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/09-940.pdf
Garcia v. Texas: In a per Curiam opinion, the Court declined to give Mr. Garcia a stay of execution imposed upon his conviction for rape and murder of a 16-year-old girl. The Court disagreed with Mr. Garcia’s argument that his conviction was obtained in violation of the Vienna Convention on Consular Relations (Vienna Convention). The Court found that Mr. Garcia’s argument is foreclosed by MedellÃn v. Texas, in which the Supreme Court held that the Avena decision by the International Court of Justice finding that a court had violated the Vienna Convention by failing to advise a defendant of his right to consular assistance was not directly enforceable law, and found similarly with regard to the President’s Memorandum purporting to implement that decision. The Court likewise declined requests by the United States to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision.
In a dissent written by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan argued in favor of the stay of execution. The dissent argued that following through with the execution would place the United States in “irreparable breach of its obligations under international law.” The dissent pointed out that the United States has ratified the Vienna Convention and is therefore bound to inform an arrested foreign national, such as Mr. Garcia, that he has a right to request the assistance of his country’s consulate. The dissent observed that the Court is ignoring “the appeal of the President in a matter related to foreign affairs,” substitutes its own views about the likelihood of congressional action for the views of the Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. http://www.supremecourt.gov/opinions/10pdf/11-5001.pdf
Ninth Circuit Court of Appeals
United States v. Gonzalez-Melchor: The Court reversed and remanded Mr. Gonzalez-Melchor’s conviction and sentence for re-entry after deportation, finding that the immigration judge failed to advise Mr. Gonzalez-Melchor of his eligibility for voluntary departure and remanding for proceedings to determine whether Mr. Gonzalez-Melchor was prejudiced by this failure. The Court further found that the appeal waiver signed by Mr. Gonzalez-Melchor at sentencing in exchange for a reduced sentence is invalid and unenforceable. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/10-50111.pdf
Hurles v. Ryan: The court reversed the district court’s denial of Mr. Hurles’ petition for a writ of habeas corpus from his murder conviction and death sentence. Specifically, the court reversed the district court’s denial of Mr. Hurles’ judicial bias claim, finding that the trial judge’s action in becoming involved as a party in an interlocutory appeal, attempted but was denied standing to appear as an adversary, and then presided over Mr. Hurles’ murder trial and single-handedly determined his death sentence demonstrated bias and forced the court to conclude that Mr. Hurles was denied his right to due process. The Court remanded to the district court with instructions to grant a writ of habeas corpus as to Petitioner’s sentence unless the State of Arizona elects, within 90 days of the issuance of the mandate, to resentence Petitioner before a jury and presided over by a judge other than the original sentencing judge in this case.
In a dissent, Judge Ikuta argued that the Court’s decision ignores AEDPA’s command to defer to a state court decision unless it is objectively unreasonable, and argued that the AEDPA analysis here is straightforward. The dissent reported that, in an appeal of a denial of Mr. Hurles’ motion for appointment of a second attorney, the state Attorney General submitted a brief in the trial judge’s name defending the ruling. It was this participation that Mr. Hurles, over seven years later, claimed violated his due process rights and merited the judge’s recusal from further participation in this case. The trial judge denied that motion. The dissent observed that there is no clearly established Supreme Court authority that even hints the trial court’s decision was wrong, and argued that the court should have deferred to the trial court decision and denied Mr. Hurles’ petition. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/07/08-99032.pdf
United States v. Evanston: In a case of first impression, the Court held that a district court may not, over defense objection after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal. The Court concluded that allowing such a procedure in a criminal trial is an abuse of the discretion accorded district courts in the management of jury deliberations. The Court reasoned that allowing such supplemental argument addressing factual matters permitted counsel to look inside the jury’s deliberations and focus arguments to those factual concerns the court had asked the jury to reveal, the process, in form and substance, invaded the jury’s deliberations, resulting in impermissible coercion. The court vacated the verdict and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10159.pdf
United States v. Rahman: The Court held that Mr. Rahman’s waiver of his right to appeal his conviction extended to the denial of his subsequent motion to withdraw his guilty plea. The Court reasoned that an appeal from the denial of his motion to withdraw his plea is an appeal from his convictions. Further, the Court found that Mr. Rahman’s waiver of his right to appeal was made voluntarily and there was no evidence of ineffective assistance of counsel. However, the Court left open the possibility that Mr. Rahman might raise an ineffective assistance of counsel claim in a subsequent collateral attack. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10293.pdf
Schleining v. Thomas: The Court held that a prisoner is not eligible for federal Good Conduct Time (GCT) for time he served in state prison on state charges, before being sentenced on a related charge in federal court. The Court found that GCT can accrue only on the time a prisoner has “actually served” on his federal sentence, and other jurisdictions have determined that a federal sentence cannot begin before the defendant has been sentenced in federal court. The Court found the logic of those jurisdictions persuasive, and adopted it in this case. The court affirmed the district court’s denial of Mr. Schleining’s petition for a writ of habeas corpus and found that the formerly calculated release date is correct. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-35792.pdf
United States v. Snyder: Mr. Snyder appealed the district court’s determination that second degree burglary in Oregon was a predicate offense under the ACCA for purposes of imposing a sentencing enhancement. The government cross-appealed the district court’s decision that a conviction for felony attempt to elude in Oregon was not a predicate offense under the ACCA. The Court found that the district court was correct that the Oregon burglary conviction was a predicate offense under the modified categorical approach despite precedent to the contrary, as the original indictment together with the judgment of conviction proved that Mr. Snyder necessarily admitted to facts constituting generic burglary, which is a predicate offense under the ACCA. Additionally, the Court found that the felony attempt to elude conviction was a violent felony under the ACCA. The Court then remanded for resentencing under the mandatory minimum sentence of 15 years, with credit for time served. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/30/10-30148.pdf
United States v. Chapman: The Court upheld the district court’s refusal to award Mr. Chapman and his co-defendants attorneys fees under the Hyde Amendment as a result of a dismissed indictment with prejudice for the government’s failure to meet its disclosure obligations under Brady in this securities fraud matter. The defendants had moved to re-open the case after a previous denial of an attorney fee award, citing the discovery of an internal government memorandum written shortly after dismissal of the indictment but not discovered until after the Ninth Circuit had decided the prior appeal. The Court concluded that the district court did not err in declining to reopen the case. In so concluding, the Court reasoned that the memo discovered by the defense “does not provide a sufficient basis to conclude that the government’s failure to disclose impeachment evidence suggested substantive weakness in the merits of the case that made the failure to disclose relevant to innocence.” To the contrary, the Court found that the district court had made clear that the initial dismissal was intended as a sanction for misconduct, and not as a judgment on the merits that could render the defendants prevailing parties for the purposes of an attorney fee award. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-10338.pdf
Wednesday, June 29, 2011
Case Law Update, Week Ending 6-24-11
The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court
Seattle v. May: The Court affirmed Mr. May’s conviction for violation of a domestic violence protection order, finding Mr. May’s claim that the order was invalid was violated by collateral estoppel. The Court also found that Mr. May’s claim that he lacked notice that violating the no-contact provision of the order was a criminal offense was meritless, as Mr. May in fact had fair notice of this provision. The court explained that if Mr. May believed the order was invalid his remedy was to seek modification of the order; he is not free to violate the order with impunity. http://www.courts.wa.gov/opinions/pdf/836779.opn.pdf
In his dissent, Justice Sanders observed that there must be an explicit and unambiguous statutory finding that the respondent is “likely to resume acts of domestic violence” against the petitioner in order to extend a permanent protection order beyond one year. The dissent argued that the boilerplate finding at issue in this case was vague and inadequate to validly extend the order. Thus, the dissent argued, the order was invalid and could not be admitted into evidence against Mr. May in this case. http://www.courts.wa.gov/opinions/pdf/836779.no1.pdf
Concurring in the dissent, Justice Stephens expressed her agreement with the dissent’s conclusion that the order does not satisfy the statutory requirements for a permanent protection order. However, Justice Stephens wrote separately because she did not feel she could endorse what she termed the dissent’s “gratuitous comments about the misuse of protection orders generally.” http://www.courts.wa.gov/opinions/pdf/836779.no2.pdf
State v. Mullen: The Court held that no Brady violation occurred when the prosecution in this case failed to disclose evidence in a previously sealed deposition of the defendant’s employer’s accountant that supported the defendant’s theory of the case that he had not stolen funds from his employer but had been sanctioned in the use of dealership funds as a reward for assistance with the owner’s dishonest financial dealings. The Court reasoned that the documents were obtained by a private party for the purposes of a separate civil suit, and fall outside the scope of the prosecutor’s duty to diligently seek out evidence favorable to the accused. http://www.courts.wa.gov/opinions/pdf/839816.opn.pdf
Division Two Court of Appeals
State v. Dow: The Court affirmed Mr. Dow’s conviction for first degree burglary, finding that the trial court’s instructions to the jury assigning the burden of proving duress to Mr. Dow was proper, and that the court’s failure to provide a limiting instruction on the use of prior convictions admitted under ER 609 was not in error. Finally, the Court found that counsel was not ineffective in failing to object to the first instruction and in failing to propose the second. http://www.courts.wa.gov/opinions/pdf/39870-2.11.doc.pdf
Federal Law
United States Supreme Court
Freeman v. United States: In an opinion written by Justice Kennedy, and joined by Justices Ginsburg, Breyer, and Kagan, the Court held that plea agreements under FRCP 11(c)(1)(C) may be eligible for sentence modifications under the Sentencing Reform Act of 1984, which authorizes retroactive amendment of a defendant’s term of imprisonment based on a retroactive amendments to the Sentencing Guidelines such as occurred here, when the Guidelines were amended to cure the disparity between sentences for cocaine base and powder cocaine offenses. The Court reasoned that, notwithstanding the fact that the government and Mr. Freeman agreed that the sentencing range dictated by the plea agreement in this case was appropriate and binding upon all parties once the agreement was accepted by the Court, the text of the applicable rules and statutes compel the conclusion that the district court must entertain a motion such as this based on the mandate to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing. The Court reversed the lower courts’ refusal to remand the case for additional sentencing action.
Concurring in the opinion, Justice Sotomayor concluded that if a FRCP 11(c)(1)(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction.
In a dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, argued that pursuant to FRCP 11(c)(1)(C), the proposed sentence in the plea agreement became binding on the district Court once it accepted the plea agreement, and that the parties had agreed on the specific length of the sentence with the apparent understanding that the agreement was immutable and not subject to amendment with changes to the Guidelines. http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf
Bullcoming v. New Mexico: In an opinion written by Justice Ginsburg with respect to all but Part IV and footnote 6, and joined by Justice Scalia in full and Justices Sotomayor and Kagan as to all but Part IV, and Justice Thomas as to all but Part IV and Footnote 6, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. The court reasoned that the certification at issue in this case – blood draw results in a DWI matter – represented more than a machine-generated number, but rather the fact that the analyst had received Mr. Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Mr. Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. The court concluded that these representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. Further, the Court held, that the surrogate testimony of a substitute analyst who had not actually performed the testing in this case could not convey what the analyst who did perform the testing knew or observed about the events he certified, nor expose any lapses or lies on that analyst’s part. The Court observed that “[t]he Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” Finally, the Court cited Melendez-Diaz in finding that the State could not argue that the introduction of the lab report did not implicate the Confrontation Clause, as the report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding.
In a partial concurrence, Justice Sotomayor wrote separately to detail the reasons she believed the report at issue to be testimonial, specifically because its primary purposes was evidentiary, and second to emphasize the differences between the instant matter and Melendez-Diaz, primarily that the State did not attempt to justify the entry of the report under alternate means.
In a dissent, Justice Kennedy, joined by Justices Roberts, Breyer, and Alito argued that the Court had erred in extended the holding in Melendez-Diaz to this case, where a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court found a confrontation violation. The dissent argued that allowing employee testimony as a substitute for the testimony of the actual analyst in the case is fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee. The dissent disagreed that the decision would not place an undue burden on the Prosecution, finding that additional resources would need to be allocated to laboratory personnel to ensure that there was an appropriate representative available for testimony else risk inadmissibility of key evidence, and that those resources would be better spent elsewhere. http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf
Ninth Circuit Court of Appeals
United States v. Flores-Perez: The Court found that there was no jurisdiction for it to consider Mr. Flores-Perez’ double jeopardy claims. Mr. Flores-Perez had moved to dismiss the action against him under a superseding indictment filed after the original indictment resulted in a hung jury. The Court found that the superseding indictment did not nullify the original indictment, and that the issuance of the superseding indictment did not terminate the original jeopardy, and thus no colorable claim of double jeopardy could be made. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/10-50246.pdf
United States v. Martinez: The court found that the life sentences of the defendants in this case, all members of the Mexican Mafia, were justified due to evidence they had participated in conspiracies to commit murder. The court further found that defendant Fernandez had agreed to facilitate a scheme which included the operation or management of a RICO conspiracy and was linked to one of the murders, and this was sufficient for his conviction. The Court found that statements linking defendant Valenzuela to another murder were admissible as statements of a coconspirator advancing the conspiracy’s aim. Additionally, the court held that the district court did not abuse its discretion when it admitted FBI Agent Vitkosky’s testimony as both an agent and an expert in the Mexican Mafia, reasoning that the district court properly identified the testimony as it came in. The Court found, as well, that though the government had not identified Agent Vitkosky as an expert within the time limit prescribed by the Federal Rules, it had done so in sufficient time for the defense to prepare cross-examination against this witness. The Court found that defendant Gonzalez was not prejudiced by significant redactions made in a voluntary statement he made to the government, and that the district court did not err in denying the defense’s motion for a mistrial based on the use of an apprehensive juror. Additionally, the Court found that the use of Mr. Martinez’ sobriquet of “The Evil One” and the shackling of the defendants, disguised as it was, was not in error. The Court further found meritless arguments against lay witnesses allowed to provide opinion testimony and the district court’s denial of defendant Durkin’s request for new counsel. Finally, the Court found it proper that the defendants’ motions for severance were denied, and that a document referred to as a Homicide Book was admitted for trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-50141.pdf
Reina-Rodriguez v. United States: The court concluded that its decision in United States v. Grisel has retroactive effect because it was a non-constitutional decision of substantive law. The court further found that, under Grisel, the defendant’s burglary conviction does not qualify categorically as a predicate offense for a sentence enhancement, and that the documents in the record are not sufficient to sustain the sentence under a modified categorical analysis. The Court therefore reversed the district court and remanded for resentencing. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-16676.pdf
United States v. Renzi: The Court affirmed in part the conviction of former Arizona Congressman Richard G. Renzi for allegedly using his public office to benefit himself rather than his constituents. According to the indictment, Mr. Renzi offered two private parties a quid pro quo deal, promising them his support in favorable future public land exchange legislation in exchange for the parties’ purchase of private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Mr. Renzi. The Court rejected Mr. Renzi’ contention that he is protected by the Speech or Debate Clause, arguing that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.” The Court held that the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility,” and that Mr. Renzi’s actions fall beyond the Clause’s protections. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/23/10-10088.pdf
Washington State Law
Washington State Supreme Court
Seattle v. May: The Court affirmed Mr. May’s conviction for violation of a domestic violence protection order, finding Mr. May’s claim that the order was invalid was violated by collateral estoppel. The Court also found that Mr. May’s claim that he lacked notice that violating the no-contact provision of the order was a criminal offense was meritless, as Mr. May in fact had fair notice of this provision. The court explained that if Mr. May believed the order was invalid his remedy was to seek modification of the order; he is not free to violate the order with impunity. http://www.courts.wa.gov/opinions/pdf/836779.opn.pdf
In his dissent, Justice Sanders observed that there must be an explicit and unambiguous statutory finding that the respondent is “likely to resume acts of domestic violence” against the petitioner in order to extend a permanent protection order beyond one year. The dissent argued that the boilerplate finding at issue in this case was vague and inadequate to validly extend the order. Thus, the dissent argued, the order was invalid and could not be admitted into evidence against Mr. May in this case. http://www.courts.wa.gov/opinions/pdf/836779.no1.pdf
Concurring in the dissent, Justice Stephens expressed her agreement with the dissent’s conclusion that the order does not satisfy the statutory requirements for a permanent protection order. However, Justice Stephens wrote separately because she did not feel she could endorse what she termed the dissent’s “gratuitous comments about the misuse of protection orders generally.” http://www.courts.wa.gov/opinions/pdf/836779.no2.pdf
State v. Mullen: The Court held that no Brady violation occurred when the prosecution in this case failed to disclose evidence in a previously sealed deposition of the defendant’s employer’s accountant that supported the defendant’s theory of the case that he had not stolen funds from his employer but had been sanctioned in the use of dealership funds as a reward for assistance with the owner’s dishonest financial dealings. The Court reasoned that the documents were obtained by a private party for the purposes of a separate civil suit, and fall outside the scope of the prosecutor’s duty to diligently seek out evidence favorable to the accused. http://www.courts.wa.gov/opinions/pdf/839816.opn.pdf
Division Two Court of Appeals
State v. Dow: The Court affirmed Mr. Dow’s conviction for first degree burglary, finding that the trial court’s instructions to the jury assigning the burden of proving duress to Mr. Dow was proper, and that the court’s failure to provide a limiting instruction on the use of prior convictions admitted under ER 609 was not in error. Finally, the Court found that counsel was not ineffective in failing to object to the first instruction and in failing to propose the second. http://www.courts.wa.gov/opinions/pdf/39870-2.11.doc.pdf
Federal Law
United States Supreme Court
Freeman v. United States: In an opinion written by Justice Kennedy, and joined by Justices Ginsburg, Breyer, and Kagan, the Court held that plea agreements under FRCP 11(c)(1)(C) may be eligible for sentence modifications under the Sentencing Reform Act of 1984, which authorizes retroactive amendment of a defendant’s term of imprisonment based on a retroactive amendments to the Sentencing Guidelines such as occurred here, when the Guidelines were amended to cure the disparity between sentences for cocaine base and powder cocaine offenses. The Court reasoned that, notwithstanding the fact that the government and Mr. Freeman agreed that the sentencing range dictated by the plea agreement in this case was appropriate and binding upon all parties once the agreement was accepted by the Court, the text of the applicable rules and statutes compel the conclusion that the district court must entertain a motion such as this based on the mandate to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing. The Court reversed the lower courts’ refusal to remand the case for additional sentencing action.
Concurring in the opinion, Justice Sotomayor concluded that if a FRCP 11(c)(1)(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction.
In a dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, argued that pursuant to FRCP 11(c)(1)(C), the proposed sentence in the plea agreement became binding on the district Court once it accepted the plea agreement, and that the parties had agreed on the specific length of the sentence with the apparent understanding that the agreement was immutable and not subject to amendment with changes to the Guidelines. http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf
Bullcoming v. New Mexico: In an opinion written by Justice Ginsburg with respect to all but Part IV and footnote 6, and joined by Justice Scalia in full and Justices Sotomayor and Kagan as to all but Part IV, and Justice Thomas as to all but Part IV and Footnote 6, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. The court reasoned that the certification at issue in this case – blood draw results in a DWI matter – represented more than a machine-generated number, but rather the fact that the analyst had received Mr. Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Mr. Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. The court concluded that these representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. Further, the Court held, that the surrogate testimony of a substitute analyst who had not actually performed the testing in this case could not convey what the analyst who did perform the testing knew or observed about the events he certified, nor expose any lapses or lies on that analyst’s part. The Court observed that “[t]he Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” Finally, the Court cited Melendez-Diaz in finding that the State could not argue that the introduction of the lab report did not implicate the Confrontation Clause, as the report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding.
In a partial concurrence, Justice Sotomayor wrote separately to detail the reasons she believed the report at issue to be testimonial, specifically because its primary purposes was evidentiary, and second to emphasize the differences between the instant matter and Melendez-Diaz, primarily that the State did not attempt to justify the entry of the report under alternate means.
In a dissent, Justice Kennedy, joined by Justices Roberts, Breyer, and Alito argued that the Court had erred in extended the holding in Melendez-Diaz to this case, where a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court found a confrontation violation. The dissent argued that allowing employee testimony as a substitute for the testimony of the actual analyst in the case is fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee. The dissent disagreed that the decision would not place an undue burden on the Prosecution, finding that additional resources would need to be allocated to laboratory personnel to ensure that there was an appropriate representative available for testimony else risk inadmissibility of key evidence, and that those resources would be better spent elsewhere. http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf
Ninth Circuit Court of Appeals
United States v. Flores-Perez: The Court found that there was no jurisdiction for it to consider Mr. Flores-Perez’ double jeopardy claims. Mr. Flores-Perez had moved to dismiss the action against him under a superseding indictment filed after the original indictment resulted in a hung jury. The Court found that the superseding indictment did not nullify the original indictment, and that the issuance of the superseding indictment did not terminate the original jeopardy, and thus no colorable claim of double jeopardy could be made. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/10-50246.pdf
United States v. Martinez: The court found that the life sentences of the defendants in this case, all members of the Mexican Mafia, were justified due to evidence they had participated in conspiracies to commit murder. The court further found that defendant Fernandez had agreed to facilitate a scheme which included the operation or management of a RICO conspiracy and was linked to one of the murders, and this was sufficient for his conviction. The Court found that statements linking defendant Valenzuela to another murder were admissible as statements of a coconspirator advancing the conspiracy’s aim. Additionally, the court held that the district court did not abuse its discretion when it admitted FBI Agent Vitkosky’s testimony as both an agent and an expert in the Mexican Mafia, reasoning that the district court properly identified the testimony as it came in. The Court found, as well, that though the government had not identified Agent Vitkosky as an expert within the time limit prescribed by the Federal Rules, it had done so in sufficient time for the defense to prepare cross-examination against this witness. The Court found that defendant Gonzalez was not prejudiced by significant redactions made in a voluntary statement he made to the government, and that the district court did not err in denying the defense’s motion for a mistrial based on the use of an apprehensive juror. Additionally, the Court found that the use of Mr. Martinez’ sobriquet of “The Evil One” and the shackling of the defendants, disguised as it was, was not in error. The Court further found meritless arguments against lay witnesses allowed to provide opinion testimony and the district court’s denial of defendant Durkin’s request for new counsel. Finally, the Court found it proper that the defendants’ motions for severance were denied, and that a document referred to as a Homicide Book was admitted for trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-50141.pdf
Reina-Rodriguez v. United States: The court concluded that its decision in United States v. Grisel has retroactive effect because it was a non-constitutional decision of substantive law. The court further found that, under Grisel, the defendant’s burglary conviction does not qualify categorically as a predicate offense for a sentence enhancement, and that the documents in the record are not sufficient to sustain the sentence under a modified categorical analysis. The Court therefore reversed the district court and remanded for resentencing. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-16676.pdf
United States v. Renzi: The Court affirmed in part the conviction of former Arizona Congressman Richard G. Renzi for allegedly using his public office to benefit himself rather than his constituents. According to the indictment, Mr. Renzi offered two private parties a quid pro quo deal, promising them his support in favorable future public land exchange legislation in exchange for the parties’ purchase of private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Mr. Renzi. The Court rejected Mr. Renzi’ contention that he is protected by the Speech or Debate Clause, arguing that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.” The Court held that the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility,” and that Mr. Renzi’s actions fall beyond the Clause’s protections. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/23/10-10088.pdf
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