Wednesday, June 8, 2011

Case Law Update, Week Ending 6-3-11

The following criminal cases of note were decided this week:

Washington State Law

Division One Court of Appeals

State v. J. M.: The Court upheld a school resource officer’s warrantless post-arrest search of a high school student’s backpack on school grounds. The Court found that the school resource officer fit the definition of “school official” conducting a school search and therefore the officer needed only reasonable grounds to search the backpack rather than probable cause. The Court held that under that standard, there was sufficient grounds for the search where the search, which revealed an air pistol, was conducted after the officer saw the student holding suspected marijuana.

Division Two Court of Appeals

State v. Damiani: The Court entered an order publishing this February 1, 2011 opinion in which it held that the sentencing court erred in including in a judgment on a domestic violence matter a provision allowing Mr. Damiani to possess a firearm in a military formation or in combat. The Court held that the superior court does not have discretion in sentencing when a firearm restriction is statutorily mandated and the legislature included no discretion to waive or limit the firearm restriction, and ordered the provision stricken from the judgment and sentence.

Division Three Court of Appeals

State v. Turnipseed: In this partially published opinion, the Court affirmed Mr. Turnipseed’s conviction for first degree manslaughter with a deadly weapon enhancement, finding that there was error in presentation of a partially inaudible videotaped testimony to the jury where the court lacked information on the substance of the omissions, but that the error was harmless. In the unpublished portion of the opinion, the Court found that the trial court properly gave a first aggressor instruction where Mr. Turnipseed had initially turned his car around to contact the victim to renew an exchange from the prior afternoon and then, although the victim had escalated the largely verbal dispute between the parties by pulling out a tire iron, he had, when threatened with Mr. Turnipseed's gun, dropped the iron, at which point Mr. Turnipseed continued to hold him at gunpoint to prevent him from leaving. Finally, the Court held that the error in the sentencing enhancement instruction established by Bashaw cannot be raised for the first time on appeal.

In a concurrence, Judge Sweeney argued that the holding of the court with regard to the partially audible testimony admitted into evidence was probably correct, but that the issue was not one of constitutional magnitude, but rather was an evidentiary issue.

State v . Walters: The Court reversed Mr. Walters’ theft conviction for allegedly taking the keys belonging to a bar at which he was drinking. The Court declined to consider Mr. Walters’ argument that the seizure of the keys from his front pants pocket was illegal, as the issue was not raised at trial, and further declined to consider Mr. Walters’ argument that his counsel was ineffective for failing to raise that argument, finding that the record lacked a factual basis for determining the merits of the suppression argument, and finding that it was impossible to determine if that argument would have prevailed. However, the Court did reverse the theft conviction on the grounds that it was prejudicial error for the court to decline to give an intoxication instruction when there was evidence that Mr. Walters consumed at least nine drinks over the course of the evening and was affected thereby.

In a dissent, Judge Sweeney argued that it was prejudicial error for the trial court to fail to give the intoxication instruction not just on the theft charge, but on the resisting arrest and assault charges against Mr. Walters as well. The dissent argued that the majority could not possible divine what a jury would have determined on those charges given the proper instruction.

Federal Law

United States Supreme Court

United States v. Tinklenberg: Justice Breyer, joined by Justices Kennedy, Ginsburg, Alito, and Sotomayor, and Justices Roberts and Thomas as to parts I and III, found that “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” for purposes of the Speedy Trial Act of 1974 does not mean that there is a requirement that the filing of a pretrial motion actually cause, or is expected to cause, delay of a trial. Instead, the Court found, the clause stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. The Court reasoned that the language of the clause, taken together with the fact that all courts of appeal save the Sixth Circuit, from whence this appeal originated, have held thusly, as well as the fact that the Sixth Circuit’s interpretation is needlessly complicating and difficult to square if the “automatic application” rule of Henderson v. U.S., and the fact that the interpretation is supported by legislative history, mitigate in favor of the Court’s holding. However, the Court found that the Sixth Circuit nevertheless reached the proper conclusion, and upheld the dismissal of Mr. Tinklenberg’s case, finding that speedy trial had been violated prior to the first day of trial.

Justice Scalia, joined by Justices Roberts and Thomas filed an opinion concurring in the judgment of the Court that a pretrial motion need not actually postpone a trial, or create an expectation of postponement, in order for its pendency to be excluded under the Speedy Trial Act of 1974. However, the concurrence argued, the conclusion is “entirely clear from the text of the Speedy Trial Act,” and there is no need to look beyond the text.

Fowler v. United States: Mr. Fowler was convicted of violating a federal witness tampering statute making it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense.” The Eleventh Circuit upheld the conviction, finding that a showing of a possible or potential communication to federal authorities was sufficient. Writing for the Court, Justice Breyer, joined by Justices Roberts, Kennedy, Thomas, Sotomayor, and Kagan, held that in such circumstances, the government must establish that there was a “reasonable likelihood” that a relevant communication would have been made to a federal officer, not just any law enforcement officer or any other person. The Court reasoned that the language of the statute, given its ordinary meaning, supports a conclusion that, where a defendant kills another person with an intent to prevent communication with any law enforcement officer, that intent “includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer.” The Court explained that the Government need not show that the communication would have reached a federal officer beyond a reasonable doubt, or that it was more likely than not, but must show that it was more than a remote or hypothetical possibility. The Court then found that because this standard was not used as trial, the case should be remanded for a determination of whether, and how, the standard applies in this case.

In an opinion concurring in the judgment, Justice Scalia disagreed with the Court’s interpretation of the statute, arguing that instead the Government must prove that the defendant “intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer.” The concurrence posited that the Court’s “reasonable likelihood” standard “has no basis in the statutory text and will serve only to confuse judges and juries.” Justice Scalia agreed that the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, but argued that there was insufficient evidence to support Fowler’s conviction.

Justice Alito, joined by Justice Ginsburg, dissented, arguing that the Court “effectively amended” the statute at issue by adding an element that is not included in the text of the statute. The dissent argued that the Court’s new element “makes little sense and will create confusion for trial judges and juries.” Instead, the dissent argued, the Court should have found that the evidence in this case was sufficient to establish “all of the elements that Congress saw fit to include.”

McNeill v. United States: In a unanimous opinion written by Justice Thomas, the Court held that a federal sentencing court must determine whether an offense under state law is a serious drug offense for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA) by consulting the maximum term of imprisonment applicable to the offense at the time of conviction for that offense, rather than the maximum term of imprisonment at the time of the federal conviction. Under the ACCA, a “serious drug offense” is “an offense under State law . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law.” The District Court determined that Mr. McNeill qualified for the sentencing enhancement based on six prior North Carolina drug trafficking convictions which, at the time of Mr. McNeill’s conviction carried a ten-year maximum sentence. However, Mr. McNeill argued that he should not have been assessed the sentencing enhancement because the State later reduced the maximum sentence for those offenses to fewer than 10 years. The Court reasoned that its conclusion was mandated by the plain language of the statute, which focuses on convictions that have already occurred, and the sentence at the time of the state conviction.

Ashcroft v. Al-Kidd: In an opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Alito, the Court held that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had improper motive. Therefore, the court concluded, Attorney General Ashcroft had immunity from a suit for money damages. The Court went on to find that the warrant was valid and provided individualized suspicion for the arrest.

In a concurring opinion, Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor (as to Part I only) joined the opinion of the Court in full, but wrote separately to make two additional observations. First, the concurrence noted that the Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. Second, the concurrence observed that the fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case.

Justice Ginsburg, joined by Justices Breyer and Sotomayor also wrote separately, agreeing with the Court that no “clearly established law” renders Mr. Ashcroft answerable in damages for the abuse of authority charged in this case. However, the concurrence objected to the Court’s disposition of Mr. al-Kidd’s Fourth Amendment claim on the merits, agreeing with Justice Sotomayor that the claim “involves novel and trying questions that will have no effect on the outcome of this case,” and that a merits disposition was neither necessary nor proper. The Concurrence argued that the validity of the material witness warrant could not be presumed, when the affidavit on which it was base fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” and does not disclose that al-Kidd had cooperated with FBI agents each of the several times they had asked to interview him. Further, the Concurrence observed, the Magistrate Judge was not told that Mr. al-Kidd’s parents, wife, and children were all citizens and residents of the United States, and misrepresented that Mr. al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.

In a separate concurrence, Justice Sotomayor, joined by Justices Ginsburg and Breyer, concurred in the Court’s judgment, agreeing with the majority’s conclusion that Mr. Ashcroft did not violate clearly established law. However, the concurrence argued that the majority’s opinion additionally and unnecessarily resolved a difficult and novel question of constitutional interpretation that will have no effect on the outcome of the case. The Concurrence argued that whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is a closer question than the majority’s opinion suggests. The Concurrence argued that the court had not yet considered whether an official’s subjective intent is relevant for purposes of the Fourth Amendment in the context of a prolonged detention of an individual without probable cause to believe he had committed any criminal offense, and that the Court need not and should not resolve that question in this case.

Ninth Circuit Court of Appeals

United States v. Ellis: The Court affirmed Mr. Ellis’ sentence for seven counts of bank robbery, finding that the government did not breach the plea agreement, as Mr. Ellis contended, and that the sentence imposed by the District Court reasonable and any error in the sentence was harmless. The Court reasoned that the moderately above-Guidelines sentence imposed in this case for a defendant who committed seven bank robberies, after serving prison time for rape and armed robbery, was reasonable under the broad discretion afforded the district court. The Court further concluded that the district court’s characterization of Mr. Ellis’ seven armed bank robberies as “serious [ ]” offenses that traumatized their victims and its emphasis on the need to provide “just punishment,” to deter criminal conduct generally, and to “protect [ ] the public from further crimes of this individual” reflected a “rational and meaningful consideration of the factors enumerated in the sentencing guidelines.

Haney v. Adams: The Court held that a petition may not raise a Batson claim in his habeas petition if the petitioner failed to object to the prosecution’s use of peremptory challenges at trial. The Court affirmed the judgment of the district court denying this petitioner’s petition for habeas corpus. In its opinion, the court cited procedural concerns, as well as the opinion that it would be “unwise to allow defendants ‘to manipulate the [trial] system to the extreme prejudice of the prosecution’ by allowing post-conviction Batson claims. The Court reasoned that a defendant would be incentivized to allow the trial to proceed with the selected jury and then if convicted raise a Batson claim on appeal “long after the prosecutor may have forgotten the reasons for his challenges.”

Emery v. Clark: The Court affirmed the denial of Mr. Emery’s habeas petition on robbery and murder convictions with gang enhancements, finding there was sufficient evidence to support the special circumstances finding and the gang enhancements. The Court cited testimony of the prosecution’s gang expert that the shooting was committed over a simple deal that had occurred with one of Mr. Emery’s friends, leading the expert to conclude that the act “shows that he had to go and do something worse than just beating him, . . . because [the victim] disrespected . . . his gang by messing with one of his friends . . . .” The expert testified that the use of lethal force over a small fight would help Mr. Emery retain respect as a hard core gang member and would raise his status within the gangs. The court further found that the California Supreme Court reasonably applied federal law in concluding that the evidence presented at trial was sufficient
to support the jury’s finding that Emery committed the attempted robbery and murder of Henry Chow “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as there was sufficient evidence for a rational trier of fact to find that Mr. Emery acted with the “specific intent to promote, further, or assist in” some type of “criminal conduct by gang members,” which may include the crimes of conviction.

United States v. Baptist: The Court affirmed Mr. Baptist’s statutorily mandated sixty-month minimum sentence following his guilty plea to conspiracy to possess crack cocaine with intent to distribute, and distribution of at fourteen grams of crack cocaine. The Court, while sympathizing with Mr. Baptist and clearly abhorring the outcome to which they were constrained, nevertheless declined to apply the Fair Sentencing Act retroactively, which would eliminate the mandatory minimum sentence implied in this case due to the clear sentencing disparity for crack over other drugs. The Court reasoned that there was no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment, and therefore the Court was prohibited from a retroactive application of the Act.

United States v. Buckles: The Court held that Mr. Buckles’ 28 U.S.C. § 2255 motion was untimely, finding that the Ninth Circuit’s order recalling the mandate so that the Court could consider Mr. Buckles’ motion for appointment of certiorari counsel did not restart the clock for the 90-day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. However, the Court remanded for further proceedings to determine whether Mr. Buckles did in fact receive misinformation from someone in the Ninth Circuit Clerk’s office regarding the time limits for filing, which may entitle Mr. Buckles to equitable tolling.

United States v. Rodriguez-Castro: The Court affirmed Mr. Rodriguez-Castro’s 57-month sentence, finding that the district court did not abuse its discretion when it declined to decrease the base offender level as recommended by the plea agreement between Mr. Rodriguez-Castro and the government. The Court reasoned that the district court considered Mr. Rodriguez-Castro’s work history, the lack of a criminal record in Mexico, his role as a “conscientious father,” and the need to avoid unwarranted sentence disparities, but was also cognizant of the need to deter the importation of huge amounts of cocaine, and assessed a proper sentence in this case after finding that Mr. Rodriguez-Castro failed to demonstrate that he was a minor participant in the offense.

In a concurrence, Judge Silverman, joined by Judge Tallman, defendant the district court’s decision in this case, arguing that the district judge is obligated to accurately calculate the sentencing guidelines no matter what the parties would like it to be. The Concurrence agreed with the majority that the District Court was well within its discretion in the sentence in this case.

Sessoms v. Runnels: The Court affirmed the denial of Mr. Sessoms’ habeas corpus petition challenging his California felony murder conviction. The Court held that Mr. Sessoms was unable to show that “the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Specifically, the Court held that there was insufficient evidence that Mr. Sessoms had unequivocally asserted his right to counsel when he asked Sacramento homicide detectives whether he had a right to an attorney and subsequently told those detectives that his father had asked him to inquire about an attorney, and there was no obligation for the detectives to ask him about any assertion of rights prior to proceeding with an interrogation. Finally, the Court held that there was insufficient evidence that detectives violated Mr. Sessoms’ right to remain silent when they interviewed him without objection five days after he invoked his right to remain silent to different officers from a different police department after he was arrested.

In a strongly-worded dissent, Judge Fletcher argued that while a federal court review of a state petition for writ of habeas corpus is significantly limited by AEDPA, such review “is not toothless,” and that when the government “take[s] a butcher knife to Miranda . . . a federal court can’t sit idly by.” The dissent observed that after 19-year-old Tio Dinero Sessoms turned himself in at the police station, he asked detectives for an attorney, first asking, “There wouldn’t be any possible way that I could have a — a lawyer present while we do this?” As the detective paused, Mr. Sessoms explained that his father had told him to ask the police to give him a lawyer, and expressed his concerns that his words might be misrepresented if he did not have an attorney present. Detectives did not call counsel, but dissuaded Mr. Sessoms from exercising that right, telling him that counsel was unnecessary because the detective was an “upfront and honest” guy who would not try to play “switch games,” and because the conversation would be recorded. Once recording, the detective informed Mr. Sessoms that two other suspects had “waived [their] rights” and given statements incriminating Mr. Sessoms, but that he understood that there are “two sides to every story.” The detective advised that a lawyer would probably prevent Mr. Sessoms from making a statement and being able to tell the police his “version of it.” The detective then refused Mr. Sessoms’ request to fall his father before speaking, telling Mr. Sessoms he was an adult. Only then, the dissent noted, did the detective read Mr. Sessoms his Miranda rights.

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