By Curtis Cartier, Tue., May 24 2011 at 2:16 PM
Categories: Law & Courts
Bellevue police officers would really like to arrest a handful of people that hang out in the Crossroads and Factoria neighborhoods and look like they're selling drugs. Unfortunately the whole "Fourth Amendment of the Constitution" thing requires police to have either a warrant or probable cause to make such arrests.
But what if there was a law that allowed officers to arrest people for "loitering with the intent of engaging in drug-related activity"? And what if instead of probable cause, police only needed "reasonable suspicion" to detain and arrest someone for that crime? The Bellevue City Council wants to find out.
Last night, after hearing from two BPD officers who complained about not being able to arrest known drug dealers because the dealers are hiding their drugs off-site, the council voted to look more closely at a law that would let officers arrest people for simply appearing to be trying to sell drugs.
Bellevue Police Legal Advisor Kyle Aiken explained at the hearing:
"Known convicted drug dealers hang out on public sidewalks... So they're out there, they hold what appear to be innocent conversations and then they escort the person--the customer--out of the sight of officers where it's presumed a drug sale occurs," Aiken testified. "The officers can't do anything because those are all innocent actions."
The proposed law would make those "innocent actions" no longer innocent and allow officers to search and arrest people for "drug-related loitering."
The proposed ordinance is actually based on existing laws in Seattle, Tacoma and Yakima--most closely the law in Tacoma.
Early language from the legislation states:
If an officer observes circumstances that gives the officer a reasonable suspicion that the person is loitering with (the intent of selling drugs). . . The officer will have the ability to arrest this person.
But serious questions remain as to whether such a law would be constitutional. Aiken and Bellevue PD note that the Washington Supreme Court upheld Tacoma's drug-loitering law in 1992.
This is true. But along the way judges have noted that the law is vulnerable to constitutional challenges from higher courts.
The Seattle Times reported in 1990 that when Pierce County Superior Court Judge James Healy upheld Tacoma's drug-loitering law, he did so with the caveat that it may be struck down later.
The law has never been challenged in federal court. But according to Seattle attorney Kurt E. Boehl, a former Seattle city prosecutor and expert in constitutional law, "with the right case" a challenge to this ordinance could go all the way to the U.S. Supreme Court.
"How could a law like this not create profiling? Especially racial profiling?" Boehl tells Seattle Weekly today. "I think it's expanding what officers can use to make contact and make arrests. And it's expanding their arsenal at the expense of our civil rights. What exactly does a drug dealer look like?"
Aiken maintains that she's confident the proposed law is constitutional. But when asked what prevents officers from using normal probable cause procedures to obtain a search warrant and find where the drugs that the alleged dealers in question are hiding, she balks.
"These officers aren't able to develop probable cause for a crime, but they have reasonable suspicion," she says.
Reasonable suspicion and probable cause have, of course, two completely separate legal definitions--the latter requiring much more evidence than the former. But having a law that makes the two terms essentially the same thing would certainly simplify things for cops--never mind what it does to individual liberties.
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Tuesday, May 24, 2011
Case Law Update, 5-20-11
Washington State Supreme Court:
State v. Williams: When stopped on suspicion of first degree theft, Mr. Williams gave officers a false name, apparently to avoid discovery of an outstanding warrant. Mr. Williams was convicted of the theft along with a charge of making a false statement, and one of obstruction. The Court reversed the obstruction charge, finding that some conduct in addition to pure speech is necessary in order to establish obstruction of an officer. The Court observed that it not only had concerns that criminalizing pure speech would implicate freedom of speech, but that it also had concerns that, were it to criminalize pure speech, officers, without probable cause or even reasonable suspicion that a crime is being committed, may engage citizens in conversation, arrest them for obstruction based upon false statements, and then search incident to the arrest. The Court concluded, “Our continued interpretation of obstruction statutes as requiring some conduct ensures these constitutional limits are maintained.” http://www.courts.wa.gov/opinions/pdf/839921.opn.pdf
State v. Martin: The Court affirmed Mr. Martin’s conviction on three counts of first degree kidnapping and one count of second degree robbery, holding that there was no violation of article I, section 22 of the Washington State constitution when a deputy prosecutor, on cross-examination, posed questions to Mr. Martin that inferred he had tailored his testimony to be consistent with police reports, witness statements, and prior witness testimony. In so holding, the Court recognized that, in the context of prosecutorial suggestions of tailoring, article I, section 22 is more protective than the Sixth Amendment. But the Court further recognized that, in this case, questions posed by the prosecutor were posed in response to statements made by Mr. Martin during direct examination that hinted that his testimony was in fact based on prior witness testimony. http://www.courts.wa.gov/opinions/pdf/837091.opn.pdf
In his dissent, Justice Sanders agreed with the majority that article I, section 22 of the Washington Constitution affords greater protection in this instance than the Sixth Amendment to the United States Constitution, but disagreed with the majority’s “ill-reasoned decision which interprets article I, section 22 as being compatible with inferences of tailoring during cross-examination.” The dissent pointed out that the majority opinion would allow the State to implicitly criticize the defendant for exercising the constitutional right to review pre-trial evidence against him, be present at trial, and confront witnesses against him. This, the dissent argued, presents the defendant with the Hobson’s choice of exercising his right to be present at trial and testify, or sequester himself in order to prevent the taint of a tailoring accusation. http://www.courts.wa.gov/opinions/pdf/837091.no1.pdf
In a partial concurrence/partial dissent, Justice Stephens concurred in the result reached by the majority, but solely on the basis of harmless error. Justice Stephens agreed with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial rights. Justice Stevens further shared “without reservation” the observation made by the dissent that "'[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant's fair trial rights], permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.'" However, Justice Stephens agreed with the majority result because she believed that the impermissible cross-examination that occurred in this case was harmless error. http://www.courts.wa.gov/opinions/pdf/837091.ip1.pdf
Division One Court of Appeals
In Re Detention of Aston: The Court upheld Mr. Aston’s civil commitment as a sexually violent predator (SVP). In so doing, the court held that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Aston committed a recent overt act when he admitted to probation officers that he possessed child pornography, that he was fantasizing about sex with minors, and that he had been writing down these fantasies and threatened to reoffend if given the opportunity. Further, the Court held that a unanimity instruction was not required for the jury to decide that Mr. Aston committed a recent overt act, and the trial court did not abuse its discretion in denying Mr. Aston’s motion for a mistrial, nor did it abuse its discretion or violate Mr. Aston’s right to an impartial jury by setting 20 minute time limits for voir dire for each side. http://www.courts.wa.gov/opinions/pdf/64264-2.pub.doc.pdf
State v. Chirinos: The Court held that, where the trial court seats an alternate juror after temporarily excusing that juror, the court must instruct the reconstituted jury to begin deliberations anew, but need not determine on the record that the alternate juror remains impartial, as the rule governing the seating of alternate jurors confers upon the trial court the discretion to determine whether such an inquiry is necessary. Here, the trial court complied with this rule, and thus Mr. Chirinos was not denied his constitutional right to an impartial jury. The Court further found without merit Mr. Chirinos’ remaining claims that 1) there was insufficient evidence presented to support the jury’s verdict finding him guilty of attempted robbery in the second degree, 2) that the trial court erred by admitting evidence that the car in which he was found was stolen, 3)that the prosecutor committed misconduct during Mr. Chirinos' cross-examination by asking questions that, Mr. Chirinos asserts, were intended to elicit from him statements that several of the State's witnesses were lying, and 4) that he was denied a fair trial because the prosecutor in closing argument informed the jury that Mr. Chirinos had proposed instructions on two lesser included offenses. http://www.courts.wa.gov/opinions/pdf/64725-3.pub.doc.pdf
State v. Allen: Mr. Allen appealed his felony harassment conviction, arguing that the trial court deprived him of a fair trial when it refused to give Mr. Allen’s proposed jury instruction on cross-racial eyewitness identification. The Court disagreed and affirmed, following prior cases holding that such an instruction risks violating the constitutional prohibition against comments on the evidence. The Court also disagreed with Mr. Allen’s arguments that the prosecutor improperly vouched for the credibility of the victim, and that the information and to convict instruction were deficient for not containing true threat as an element of felony harassment. http://www.courts.wa.gov/opinions/pdf/64466-1.pub.doc.pdf
In a concurrence, Judge Ellington agreed with the conclusion reached by the majority, but wrote separately to argue that the Court should advise jurors that cross-racial identification should be carefully scrutinized. The concurrence argued that such an instruction could be drafted without making a judicial comment on the evidence, and that an instruction is past due. http://www.courts.wa.gov/opinions/pdf/64466-1.con.doc.pdf
Division Two Court of Appeals
State v. Frasquillo: In this partially published opinion, the Court affirmed Mr. Frasquillo’s conviction for second degree assault and attempted second degree assault, holding that though the Court erroneously gave the jury the transferred intent instruction, but the error was harmless as the instruction as written did not apply to the attempted assault charge. The Court further held that there was sufficient evidence of Mr. Frasquillo’s intent to assault three of his victims. http://www.courts.wa.gov/opinions/pdf/39128-7.11.doc.pdf
State v. Hunley: Mr. Hunley appealed his conviction for attempting to elude a police vehicle, arguing that defense counsel was ineffective in failing to request a lesser included offense instruction for reckless driving, and that provisions of the SRA unconstitutionally relieved the State of its burden of proof at sentencing. The Court held that reckless driving is not a lesser included offense in attempting to elude a police vehicle, and thus there was no ineffective assistance in counsel’s failure to request an instruction. However, the Court held that the challenged SRA provisions do violate due process, and remanded for resentencing to allow the State an opportunity to prove Mr. Hunley’s criminal history. http://www.courts.wa.gov/opinions/pdf/39676-9.11.doc.pdf
Division Three Court of Appeals
State v. McCabe: In this partially published opinion, the Court upheld Mr. McCabe’s conviction for delivery of a controlled substance and possession with intent to deliver a controlled substance. The Court found no error or abuse of discretion in the trial court’s denial of Mr. McCabe’s motion to present telephonic testimony of a witness unwilling to testify in court. http://www.courts.wa.gov/opinions/pdf/288005.opn.doc.pdf
State v. Coristine: The Court affirmed Mr. Coristine’s conviction for second degree rape, holding that a jury instruction that it was an affirmative defense that Mr. Coristine reasonably believed that the victim was not mentally incapacitated or physically helpless, given alongside an instruction that Mr. Coristine could not be found guilty if the victim was in fact capable of consent was proper. The Court found that the instruction was required by the evidence in this record, was not inconsistent with Mr. Coristine’s defenses, and was harmless in any event because the jury concluded that the victim was not capable of consent. http://www.courts.wa.gov/opinions/pdf/288684.cor.doc.pdf
Federal Law
United States Supreme Court
Kentucky v. King: Justice Alito, writing for the Court, and joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, held that the exigent circumstances rule applies when police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. In this case, the Court found that the police properly knocked, announced their presence, and then entered to prevent the destruction of evidence, a valid exigency under which a warrantless search is permitted. The Court found no evidence that officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the residence, but merely knocked an announced, consistent with the Fourth Amendment. In so holding, the Court rejected arguments that by knocking and announcing, rather than lying in wait and first obtaining a warrant, the officers created their own exigency.
In her dissent Justice Ginsburg argued that this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Rather than obtain a warrant, even when time exists to do so, the dissent observed that police may now knock, listen, and then break down the door. The dissent argued that police should not be allowed to dispense with the need to get a warrant by creating exigent circumstances, as was done here; rather, the exigency must exist when police arrive on the scene. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
Brown v. Plata: In a landmark ruling, Justice Kennedy, writing for the Court and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan ruled that the State of California must release approximately 46,000 convicted criminals to reduce overcrowding in the State’s prisons that has resulted in a violation of the inmates’ Eighth Amendment rights.
In his dissent, Justice Scalia, joined by Justice Thomas argued that “the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” Instead, the dissent argued that the Court should have made an effort to read the law so as to avoid the mass release.
In his dissent, Justice Alito, joined by Chief Justice Roberts argued that the Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” However, the dissent argued, undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. Here, the dissent contended, the District Court exceeded its authority under both the Constitution and the Prison Litigation Reform Act of 1995 by ordering a radical reduction in the California prison population without finding that the current population level violates the Constitution. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf
Ninth Circuit Court of Appeals
United States v. Tsosie: The Court vacated and remanded a restitution order directing Mr. Tsosie to pay $31,994 in restitution to the mother of the victim of Mr. Tsosie’s sexual abuse to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away because the victim’s therapist had prescribed a course of treatment that included the victim seeing her mother every weekend. The Court held that the award lacked an evidentiary basis and that the District Court had not adequately explained its reasons for entering the order. The Court further held that Mr. Tsosie had not waived his right to appeal the restitution order when entering his guilty plea, as he had not been given proper notice of the amount of restitution sought.
In a partial dissent and partial concurrence, Judge Bea agreed that the law requires a finding that Mr. Tsosie did not waive his right to appeal the restitution order because he was not aware of the restitution amount at the time he entered the plea agreement on the child molestation charges. However, Judge Bea dissented from the finding that the district court erred in awarding restitution to the victim’s mother based on insufficient evidence when the victim’s mother had provided a detailed spreadsheet showing her expenses. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/10-10030.pdf
Velasquez v. Kirkland: The Court found that the one-year statute of limitations for filing a federal habeas corpus petition is not tolled during a California state prisoner’s delays between his state-court petitions for collateral review. Specifically, the Court found that Mr. Velasquez provided no adequate justification for the delays in his state court filings, and there was no indication that the delays were proper under state law to warrant statutory tolling of the deadline. Further, the Court found Mr. Velasquez did not demonstrate “extraordinary circumstances” to warrant equitable tolling of the deadline. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-55823.pdf
Harrison v. Gillespie: The Court found that under the facts of this case, the trial judge did not abuse her discretion when she excused the deadlocked jury without first polling them, per Mr. Harrison’s request, as to whether they had ruled out the death penalty and was deadlocked on a lesser sentence. The Court found that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. The Court concluded that granting such a right would lead to the risk that the trial court could through polling coerce the jury into reaching a compromise it might not otherwise reach or to encourage the jury to treat a preliminary vote as a final verdict. Here, the Court reasoned, the jurors were deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Mr. Harrison of the death penalty. The Court also held that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.
Judge Thomas, joined by Judges Reinhardt, Fletcher, Fisher, and Berzon, dissented, arguing that it would appear that the jurors in Mr. Harrison’s trial had decided to acquit him of the death penalty, and had informed the judge that they were deadlocked between life with parole and life without parole. The dissent argued that it was improper for the judge to have refused to conduct the requested poll and summarily declared a mistrial, particularly where there was no manifest necessity to discharge the jury without conducting the requested poll that would have answered the question of whether the jurors had reached a death penalty verdict. The dissent argued that the trial judge violated Mr. Harrison’s right to have the “particular tribunal give complete consideration to his case,” and that he should not be subject a second time to the death penalty.
Judge Reinhardt, joined by Judge Thomas, dissented, noting that he joined in Judge Thomas’ dissent but wrote separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on “fundamental misunderstanding of the function of a capital sentencing proceeding.” The trial judge thus precluded Mr. Harrison from obtaining confirmation that the jury had found him ineligible for death and that the double jeopardy clause would bar him from being so sentenced in any subsequent proceedings. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-16602.pdf
United States v. Escamilla-Rojas: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Ms. Escamilla-Rojas’ rights under FRCP 11 and the Fifth and Sixth Amendments. The court reasoned that Ms. Escamilla-Rojas had more than adequate representation by counsel and thus failed to “demonstrate a reasonable probability that . . . the result of the proceeding would have been different,” if counsel had not been temporarily separated from her during the group advisement. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/12/10-10185.pdf
United State v. Diaz-Ramirez: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Mr. Diaz-Ramirez’ rights under FRCP 11 and the Fifth and Sixth Amendments. The Court reasoned that Mr. Diaz-Ramirez did not demonstrate that any error in the proceeding was plain and affected his substantial rights, and that, but for the error, he would not have entered his plea. In short, the Court found that Mr. Diaz-Ramirez did not even suggest, much less show, that he would not have pleaded guilty if the plea hearing had been more individualized, the Court could not conclude that there was any plain error. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-10230.pdf
Leavitt v. Arave: The Court reversed the District Court’s finding that Mr. Leavitt’s counsel’s performance was deficient at the sentencing phase when counsel decided not to seek an MRI or pursue further investigation into Mr. Leavitt’s mental health in an effort to prevent him from being sentenced to death on a gruesome murder case. The Court reasoned that the mental health angle had been tried once by previous counsel and had failed. Further, the Court observed, given the “gruesome nature of the crime, coupled with the relatively weak additional evidence” to be found in an MRI, any ineffectiveness, if present, was harmless.
Judge Reinhart dissented, arguing that Mr. Leavitt’s counsel was incompetent to the point that confidence in the outcome of the case was undermined. The dissent argued that counsel was duty bound to seek the MRI that had been previously denied, and failing to do so prevented him from discovering evidence establishing that Mr. Leavitt suffers from organic brain damage, plainly undermining confidence in the outcome of the case and the sentence imposed. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/08-99002.pdf
United States v. Lettiere: The Court held that the district court did not err in failing to instruct the jury on the dictionary definition of “brandish” in lieu of or in addition to the statutory definition as part of Mr. Lettiere’s trial on charges of robbery affecting commerce and use of a firearm during a crime of violence. The Court found that the statutory definition was the correct and narrower definition and was properly used in this case.
In a concurrence, Judge Tashima agreed with the outcome but wrote separately to explain why it is necessary for the Court to fully review Mr. Lettiere’s challenge to the jury instruction defining “brandish,” expressing concern that readers would be confused as to why the definition was necessary when brandishing is not an element of the offense which must be found by a jury, but is a sentencing factor to be found by the judge. The concurrence explained that the indictment charged that Mr. Lettiere had used and brandished a firearm, and that the defendant and the government had agreed to the use of the definitional instruction at the charge conference. Under these facts, the term “brandish” thus became an element of the offense in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-30101.pdf
Williams v. Cavazos: The Court granted Ms. Williams’ petition for habeas relief, finding that the district court improperly dismissed a known holdout juror and replaced him with an alternate in order to move the trial along and secure a conviction. The Court found that this action violated Ms. Williams’ Sixth Amendment rights. “In view of the reasonable possibility that Juror No. 6’s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal,” the Court found that Ms. Williams was deprived of his right to a fair try by jury. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf
State v. Williams: When stopped on suspicion of first degree theft, Mr. Williams gave officers a false name, apparently to avoid discovery of an outstanding warrant. Mr. Williams was convicted of the theft along with a charge of making a false statement, and one of obstruction. The Court reversed the obstruction charge, finding that some conduct in addition to pure speech is necessary in order to establish obstruction of an officer. The Court observed that it not only had concerns that criminalizing pure speech would implicate freedom of speech, but that it also had concerns that, were it to criminalize pure speech, officers, without probable cause or even reasonable suspicion that a crime is being committed, may engage citizens in conversation, arrest them for obstruction based upon false statements, and then search incident to the arrest. The Court concluded, “Our continued interpretation of obstruction statutes as requiring some conduct ensures these constitutional limits are maintained.” http://www.courts.wa.gov/opinions/pdf/839921.opn.pdf
State v. Martin: The Court affirmed Mr. Martin’s conviction on three counts of first degree kidnapping and one count of second degree robbery, holding that there was no violation of article I, section 22 of the Washington State constitution when a deputy prosecutor, on cross-examination, posed questions to Mr. Martin that inferred he had tailored his testimony to be consistent with police reports, witness statements, and prior witness testimony. In so holding, the Court recognized that, in the context of prosecutorial suggestions of tailoring, article I, section 22 is more protective than the Sixth Amendment. But the Court further recognized that, in this case, questions posed by the prosecutor were posed in response to statements made by Mr. Martin during direct examination that hinted that his testimony was in fact based on prior witness testimony. http://www.courts.wa.gov/opinions/pdf/837091.opn.pdf
In his dissent, Justice Sanders agreed with the majority that article I, section 22 of the Washington Constitution affords greater protection in this instance than the Sixth Amendment to the United States Constitution, but disagreed with the majority’s “ill-reasoned decision which interprets article I, section 22 as being compatible with inferences of tailoring during cross-examination.” The dissent pointed out that the majority opinion would allow the State to implicitly criticize the defendant for exercising the constitutional right to review pre-trial evidence against him, be present at trial, and confront witnesses against him. This, the dissent argued, presents the defendant with the Hobson’s choice of exercising his right to be present at trial and testify, or sequester himself in order to prevent the taint of a tailoring accusation. http://www.courts.wa.gov/opinions/pdf/837091.no1.pdf
In a partial concurrence/partial dissent, Justice Stephens concurred in the result reached by the majority, but solely on the basis of harmless error. Justice Stephens agreed with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial rights. Justice Stevens further shared “without reservation” the observation made by the dissent that "'[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant's fair trial rights], permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.'" However, Justice Stephens agreed with the majority result because she believed that the impermissible cross-examination that occurred in this case was harmless error. http://www.courts.wa.gov/opinions/pdf/837091.ip1.pdf
Division One Court of Appeals
In Re Detention of Aston: The Court upheld Mr. Aston’s civil commitment as a sexually violent predator (SVP). In so doing, the court held that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Aston committed a recent overt act when he admitted to probation officers that he possessed child pornography, that he was fantasizing about sex with minors, and that he had been writing down these fantasies and threatened to reoffend if given the opportunity. Further, the Court held that a unanimity instruction was not required for the jury to decide that Mr. Aston committed a recent overt act, and the trial court did not abuse its discretion in denying Mr. Aston’s motion for a mistrial, nor did it abuse its discretion or violate Mr. Aston’s right to an impartial jury by setting 20 minute time limits for voir dire for each side. http://www.courts.wa.gov/opinions/pdf/64264-2.pub.doc.pdf
State v. Chirinos: The Court held that, where the trial court seats an alternate juror after temporarily excusing that juror, the court must instruct the reconstituted jury to begin deliberations anew, but need not determine on the record that the alternate juror remains impartial, as the rule governing the seating of alternate jurors confers upon the trial court the discretion to determine whether such an inquiry is necessary. Here, the trial court complied with this rule, and thus Mr. Chirinos was not denied his constitutional right to an impartial jury. The Court further found without merit Mr. Chirinos’ remaining claims that 1) there was insufficient evidence presented to support the jury’s verdict finding him guilty of attempted robbery in the second degree, 2) that the trial court erred by admitting evidence that the car in which he was found was stolen, 3)that the prosecutor committed misconduct during Mr. Chirinos' cross-examination by asking questions that, Mr. Chirinos asserts, were intended to elicit from him statements that several of the State's witnesses were lying, and 4) that he was denied a fair trial because the prosecutor in closing argument informed the jury that Mr. Chirinos had proposed instructions on two lesser included offenses. http://www.courts.wa.gov/opinions/pdf/64725-3.pub.doc.pdf
State v. Allen: Mr. Allen appealed his felony harassment conviction, arguing that the trial court deprived him of a fair trial when it refused to give Mr. Allen’s proposed jury instruction on cross-racial eyewitness identification. The Court disagreed and affirmed, following prior cases holding that such an instruction risks violating the constitutional prohibition against comments on the evidence. The Court also disagreed with Mr. Allen’s arguments that the prosecutor improperly vouched for the credibility of the victim, and that the information and to convict instruction were deficient for not containing true threat as an element of felony harassment. http://www.courts.wa.gov/opinions/pdf/64466-1.pub.doc.pdf
In a concurrence, Judge Ellington agreed with the conclusion reached by the majority, but wrote separately to argue that the Court should advise jurors that cross-racial identification should be carefully scrutinized. The concurrence argued that such an instruction could be drafted without making a judicial comment on the evidence, and that an instruction is past due. http://www.courts.wa.gov/opinions/pdf/64466-1.con.doc.pdf
Division Two Court of Appeals
State v. Frasquillo: In this partially published opinion, the Court affirmed Mr. Frasquillo’s conviction for second degree assault and attempted second degree assault, holding that though the Court erroneously gave the jury the transferred intent instruction, but the error was harmless as the instruction as written did not apply to the attempted assault charge. The Court further held that there was sufficient evidence of Mr. Frasquillo’s intent to assault three of his victims. http://www.courts.wa.gov/opinions/pdf/39128-7.11.doc.pdf
State v. Hunley: Mr. Hunley appealed his conviction for attempting to elude a police vehicle, arguing that defense counsel was ineffective in failing to request a lesser included offense instruction for reckless driving, and that provisions of the SRA unconstitutionally relieved the State of its burden of proof at sentencing. The Court held that reckless driving is not a lesser included offense in attempting to elude a police vehicle, and thus there was no ineffective assistance in counsel’s failure to request an instruction. However, the Court held that the challenged SRA provisions do violate due process, and remanded for resentencing to allow the State an opportunity to prove Mr. Hunley’s criminal history. http://www.courts.wa.gov/opinions/pdf/39676-9.11.doc.pdf
Division Three Court of Appeals
State v. McCabe: In this partially published opinion, the Court upheld Mr. McCabe’s conviction for delivery of a controlled substance and possession with intent to deliver a controlled substance. The Court found no error or abuse of discretion in the trial court’s denial of Mr. McCabe’s motion to present telephonic testimony of a witness unwilling to testify in court. http://www.courts.wa.gov/opinions/pdf/288005.opn.doc.pdf
State v. Coristine: The Court affirmed Mr. Coristine’s conviction for second degree rape, holding that a jury instruction that it was an affirmative defense that Mr. Coristine reasonably believed that the victim was not mentally incapacitated or physically helpless, given alongside an instruction that Mr. Coristine could not be found guilty if the victim was in fact capable of consent was proper. The Court found that the instruction was required by the evidence in this record, was not inconsistent with Mr. Coristine’s defenses, and was harmless in any event because the jury concluded that the victim was not capable of consent. http://www.courts.wa.gov/opinions/pdf/288684.cor.doc.pdf
Federal Law
United States Supreme Court
Kentucky v. King: Justice Alito, writing for the Court, and joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, held that the exigent circumstances rule applies when police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. In this case, the Court found that the police properly knocked, announced their presence, and then entered to prevent the destruction of evidence, a valid exigency under which a warrantless search is permitted. The Court found no evidence that officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the residence, but merely knocked an announced, consistent with the Fourth Amendment. In so holding, the Court rejected arguments that by knocking and announcing, rather than lying in wait and first obtaining a warrant, the officers created their own exigency.
In her dissent Justice Ginsburg argued that this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Rather than obtain a warrant, even when time exists to do so, the dissent observed that police may now knock, listen, and then break down the door. The dissent argued that police should not be allowed to dispense with the need to get a warrant by creating exigent circumstances, as was done here; rather, the exigency must exist when police arrive on the scene. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf
Brown v. Plata: In a landmark ruling, Justice Kennedy, writing for the Court and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan ruled that the State of California must release approximately 46,000 convicted criminals to reduce overcrowding in the State’s prisons that has resulted in a violation of the inmates’ Eighth Amendment rights.
In his dissent, Justice Scalia, joined by Justice Thomas argued that “the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” Instead, the dissent argued that the Court should have made an effort to read the law so as to avoid the mass release.
In his dissent, Justice Alito, joined by Chief Justice Roberts argued that the Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” However, the dissent argued, undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. Here, the dissent contended, the District Court exceeded its authority under both the Constitution and the Prison Litigation Reform Act of 1995 by ordering a radical reduction in the California prison population without finding that the current population level violates the Constitution. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf
Ninth Circuit Court of Appeals
United States v. Tsosie: The Court vacated and remanded a restitution order directing Mr. Tsosie to pay $31,994 in restitution to the mother of the victim of Mr. Tsosie’s sexual abuse to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away because the victim’s therapist had prescribed a course of treatment that included the victim seeing her mother every weekend. The Court held that the award lacked an evidentiary basis and that the District Court had not adequately explained its reasons for entering the order. The Court further held that Mr. Tsosie had not waived his right to appeal the restitution order when entering his guilty plea, as he had not been given proper notice of the amount of restitution sought.
In a partial dissent and partial concurrence, Judge Bea agreed that the law requires a finding that Mr. Tsosie did not waive his right to appeal the restitution order because he was not aware of the restitution amount at the time he entered the plea agreement on the child molestation charges. However, Judge Bea dissented from the finding that the district court erred in awarding restitution to the victim’s mother based on insufficient evidence when the victim’s mother had provided a detailed spreadsheet showing her expenses. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/10-10030.pdf
Velasquez v. Kirkland: The Court found that the one-year statute of limitations for filing a federal habeas corpus petition is not tolled during a California state prisoner’s delays between his state-court petitions for collateral review. Specifically, the Court found that Mr. Velasquez provided no adequate justification for the delays in his state court filings, and there was no indication that the delays were proper under state law to warrant statutory tolling of the deadline. Further, the Court found Mr. Velasquez did not demonstrate “extraordinary circumstances” to warrant equitable tolling of the deadline. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-55823.pdf
Harrison v. Gillespie: The Court found that under the facts of this case, the trial judge did not abuse her discretion when she excused the deadlocked jury without first polling them, per Mr. Harrison’s request, as to whether they had ruled out the death penalty and was deadlocked on a lesser sentence. The Court found that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. The Court concluded that granting such a right would lead to the risk that the trial court could through polling coerce the jury into reaching a compromise it might not otherwise reach or to encourage the jury to treat a preliminary vote as a final verdict. Here, the Court reasoned, the jurors were deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Mr. Harrison of the death penalty. The Court also held that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.
Judge Thomas, joined by Judges Reinhardt, Fletcher, Fisher, and Berzon, dissented, arguing that it would appear that the jurors in Mr. Harrison’s trial had decided to acquit him of the death penalty, and had informed the judge that they were deadlocked between life with parole and life without parole. The dissent argued that it was improper for the judge to have refused to conduct the requested poll and summarily declared a mistrial, particularly where there was no manifest necessity to discharge the jury without conducting the requested poll that would have answered the question of whether the jurors had reached a death penalty verdict. The dissent argued that the trial judge violated Mr. Harrison’s right to have the “particular tribunal give complete consideration to his case,” and that he should not be subject a second time to the death penalty.
Judge Reinhardt, joined by Judge Thomas, dissented, noting that he joined in Judge Thomas’ dissent but wrote separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on “fundamental misunderstanding of the function of a capital sentencing proceeding.” The trial judge thus precluded Mr. Harrison from obtaining confirmation that the jury had found him ineligible for death and that the double jeopardy clause would bar him from being so sentenced in any subsequent proceedings. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-16602.pdf
United States v. Escamilla-Rojas: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Ms. Escamilla-Rojas’ rights under FRCP 11 and the Fifth and Sixth Amendments. The court reasoned that Ms. Escamilla-Rojas had more than adequate representation by counsel and thus failed to “demonstrate a reasonable probability that . . . the result of the proceeding would have been different,” if counsel had not been temporarily separated from her during the group advisement. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/12/10-10185.pdf
United State v. Diaz-Ramirez: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Mr. Diaz-Ramirez’ rights under FRCP 11 and the Fifth and Sixth Amendments. The Court reasoned that Mr. Diaz-Ramirez did not demonstrate that any error in the proceeding was plain and affected his substantial rights, and that, but for the error, he would not have entered his plea. In short, the Court found that Mr. Diaz-Ramirez did not even suggest, much less show, that he would not have pleaded guilty if the plea hearing had been more individualized, the Court could not conclude that there was any plain error. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-10230.pdf
Leavitt v. Arave: The Court reversed the District Court’s finding that Mr. Leavitt’s counsel’s performance was deficient at the sentencing phase when counsel decided not to seek an MRI or pursue further investigation into Mr. Leavitt’s mental health in an effort to prevent him from being sentenced to death on a gruesome murder case. The Court reasoned that the mental health angle had been tried once by previous counsel and had failed. Further, the Court observed, given the “gruesome nature of the crime, coupled with the relatively weak additional evidence” to be found in an MRI, any ineffectiveness, if present, was harmless.
Judge Reinhart dissented, arguing that Mr. Leavitt’s counsel was incompetent to the point that confidence in the outcome of the case was undermined. The dissent argued that counsel was duty bound to seek the MRI that had been previously denied, and failing to do so prevented him from discovering evidence establishing that Mr. Leavitt suffers from organic brain damage, plainly undermining confidence in the outcome of the case and the sentence imposed. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/08-99002.pdf
United States v. Lettiere: The Court held that the district court did not err in failing to instruct the jury on the dictionary definition of “brandish” in lieu of or in addition to the statutory definition as part of Mr. Lettiere’s trial on charges of robbery affecting commerce and use of a firearm during a crime of violence. The Court found that the statutory definition was the correct and narrower definition and was properly used in this case.
In a concurrence, Judge Tashima agreed with the outcome but wrote separately to explain why it is necessary for the Court to fully review Mr. Lettiere’s challenge to the jury instruction defining “brandish,” expressing concern that readers would be confused as to why the definition was necessary when brandishing is not an element of the offense which must be found by a jury, but is a sentencing factor to be found by the judge. The concurrence explained that the indictment charged that Mr. Lettiere had used and brandished a firearm, and that the defendant and the government had agreed to the use of the definitional instruction at the charge conference. Under these facts, the term “brandish” thus became an element of the offense in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-30101.pdf
Williams v. Cavazos: The Court granted Ms. Williams’ petition for habeas relief, finding that the district court improperly dismissed a known holdout juror and replaced him with an alternate in order to move the trial along and secure a conviction. The Court found that this action violated Ms. Williams’ Sixth Amendment rights. “In view of the reasonable possibility that Juror No. 6’s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal,” the Court found that Ms. Williams was deprived of his right to a fair try by jury. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf
Wednesday, May 18, 2011
Tuesday, May 17, 2011
Supreme Court OKs warrantless searches
The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.
By Tribune Washington bureau and The New York Times
WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.
The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, Justice Samuel Alito said for an 8-1 majority.
In dissent, Justice Ruth Bader Ginsburg wrote that she feared the ruling in a Kentucky case had handed the police an important new tool.
"The court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases," Ginsburg wrote. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."
She said the Fourth Amendment's "core requirement" is that officers have probable cause and a search warrant before they break into a house.
"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?" Ginsburg asked.
An expert on criminal searches agreed, saying the decision would encourage police to undertake "knock and talk" raids.
"I'm surprised the Supreme Court would condone this, that if the police hear suspicious noises inside, they can break in," said John Wesley Hall, a criminal-defense lawyer in Little Rock, Ark. "I'm even more surprised that nearly all of them went along."
The court in the past has insisted that homes are special preserves. As Alito said, the Fourth Amendment "has drawn a firm line at the entrance to the house." One exception to the search-warrant rule involves an emergency, such as screams coming from a house. Police also may pursue a fleeing suspect who enters a residence.
The Kentucky case arose from a mistake. After seeing a drug deal in a parking lot, Lexington police officers rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.
But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect.
The Kentucky Supreme Court suppressed the evidence, saying any risk of drugs being destroyed was the result of the decision by police to knock and announce themselves rather than obtain a warrant.
The U.S. Supreme Court reversed that decision Monday, saying police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Alito wrote.
King could have chosen not to respond to the knocking in any fashion, Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.
Alito took pains to say the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an "exigent circumstance," in legal jargon — existed. He said the Kentucky Supreme Court "expressed doubt on this issue" and that "any question about whether an exigency actually existed is better addressed" by the state court.
All the U.S. Supreme Court decided, Alito wrote, was when evidence must be suppressed because police had created the exigency. Lower courts had approached that question in five ways.
The standard announced Monday, Alito wrote, had the virtue of simplicity.
"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment," he wrote, "warrantless entry to prevent the destruction of evidence is reasonable and thus allowed."
But "there is a strong argument," Alito added, that evidence would have to be suppressed when police did more than knock and announce themselves. In general, he wrote, "the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted."
Ginsburg, dissenting, said the majority had taken a wrong turn.
"The urgency must exist, I would rule," she wrote, "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct."
The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether police faced an emergency situation in this case.
By Tribune Washington bureau and The New York Times
WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.
The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.
Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, Justice Samuel Alito said for an 8-1 majority.
In dissent, Justice Ruth Bader Ginsburg wrote that she feared the ruling in a Kentucky case had handed the police an important new tool.
"The court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases," Ginsburg wrote. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."
She said the Fourth Amendment's "core requirement" is that officers have probable cause and a search warrant before they break into a house.
"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?" Ginsburg asked.
An expert on criminal searches agreed, saying the decision would encourage police to undertake "knock and talk" raids.
"I'm surprised the Supreme Court would condone this, that if the police hear suspicious noises inside, they can break in," said John Wesley Hall, a criminal-defense lawyer in Little Rock, Ark. "I'm even more surprised that nearly all of them went along."
The court in the past has insisted that homes are special preserves. As Alito said, the Fourth Amendment "has drawn a firm line at the entrance to the house." One exception to the search-warrant rule involves an emergency, such as screams coming from a house. Police also may pursue a fleeing suspect who enters a residence.
The Kentucky case arose from a mistake. After seeing a drug deal in a parking lot, Lexington police officers rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.
But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect.
The Kentucky Supreme Court suppressed the evidence, saying any risk of drugs being destroyed was the result of the decision by police to knock and announce themselves rather than obtain a warrant.
The U.S. Supreme Court reversed that decision Monday, saying police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Alito wrote.
King could have chosen not to respond to the knocking in any fashion, Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.
Alito took pains to say the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an "exigent circumstance," in legal jargon — existed. He said the Kentucky Supreme Court "expressed doubt on this issue" and that "any question about whether an exigency actually existed is better addressed" by the state court.
All the U.S. Supreme Court decided, Alito wrote, was when evidence must be suppressed because police had created the exigency. Lower courts had approached that question in five ways.
The standard announced Monday, Alito wrote, had the virtue of simplicity.
"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment," he wrote, "warrantless entry to prevent the destruction of evidence is reasonable and thus allowed."
But "there is a strong argument," Alito added, that evidence would have to be suppressed when police did more than knock and announce themselves. In general, he wrote, "the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted."
Ginsburg, dissenting, said the majority had taken a wrong turn.
"The urgency must exist, I would rule," she wrote, "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct."
The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether police faced an emergency situation in this case.
Monday, May 16, 2011
The 5 Worst States to Get Busted With Pot
1. Oklahoma — Lawmakers in the Sooner State made headlines this spring when legislators voted 119 to 20 in favor of House Bill 1798, which enhances the state sentencing guidelines for hash manufacturing to a minimum of two years in jail and a maximum penalty of life in prison. (Mary Fallin, the state’s first-ever female governor, signed the measure into law in April; it takes effect on November 1, 2011.) But longtime Oklahoma observers were hardly surprised at lawmakers’ latest “life for pot” plan. After all, state law already allows judges to hand out life sentences for those convicted of cannabis cultivation or for the sale of a single dime-bag.
2. Texas — On an annual basis, no state arrests and criminally prosecutes more of its citizens for pot than does Texas. Marijuana arrests comprise over half of all annual arrests in the Lone Star State. It is easy to see why. In 2009, more than 97 percent of all Texas marijuana arrests — over 77,000 people — were for possession only. Those convicted face up to 180 days in jail and a $2,000 fine, even upon a first conviction.
3. Florida — According to a 2009 state-by-state analysis by researcher and former NORML Director Jon Gettman, no other state routinely punishes minor marijuana more severely than does the Sunshine State. Under Florida law, marijuana possession of 20 grams or less (about two-thirds of an ounce) is a criminal misdemeanor punishable by up to one-year imprisonment and a $1,000 fine. Marijuana possession over 20 grams, as well as the cultivation of even a single pot plant, are defined by law as felony offenses – punishable by up to five years in prison and a $5,000 fine. In recent years, state lawmakers have revisited the state’s marijuana penalties – in each case electing to enhance Florida’s already toughest-in-the-nation criminal punishments.
4. Louisiana — In Louisiana, multi-decade (or even life) sentences for repeat pot offenders are hardly a rare occurrence. Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. According to a 2008 expose published in New Orleans City Business online, district attorneys are not hesitant to “target small-time marijuana users, sometimes caught with less than a gram of pot, and threaten them with lengthy prison sentences.”
5. Arizona — Forty years ago virtually every state in the nation defined marijuana possession as a felony offense. Today, only one state, Arizona, treats first-time pot possession in such an archaic and punitive manner. Under Arizona law, even minor marijuana possession offenses may be prosecuted as felony crimes, punishable by up to 18 months in jail and a $150,000 fine. According to Jon Gettman’s 2009 analysis only Florida consistently treats minor marijuana possession cases more severely.
2. Texas — On an annual basis, no state arrests and criminally prosecutes more of its citizens for pot than does Texas. Marijuana arrests comprise over half of all annual arrests in the Lone Star State. It is easy to see why. In 2009, more than 97 percent of all Texas marijuana arrests — over 77,000 people — were for possession only. Those convicted face up to 180 days in jail and a $2,000 fine, even upon a first conviction.
3. Florida — According to a 2009 state-by-state analysis by researcher and former NORML Director Jon Gettman, no other state routinely punishes minor marijuana more severely than does the Sunshine State. Under Florida law, marijuana possession of 20 grams or less (about two-thirds of an ounce) is a criminal misdemeanor punishable by up to one-year imprisonment and a $1,000 fine. Marijuana possession over 20 grams, as well as the cultivation of even a single pot plant, are defined by law as felony offenses – punishable by up to five years in prison and a $5,000 fine. In recent years, state lawmakers have revisited the state’s marijuana penalties – in each case electing to enhance Florida’s already toughest-in-the-nation criminal punishments.
4. Louisiana — In Louisiana, multi-decade (or even life) sentences for repeat pot offenders are hardly a rare occurrence. Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. According to a 2008 expose published in New Orleans City Business online, district attorneys are not hesitant to “target small-time marijuana users, sometimes caught with less than a gram of pot, and threaten them with lengthy prison sentences.”
5. Arizona — Forty years ago virtually every state in the nation defined marijuana possession as a felony offense. Today, only one state, Arizona, treats first-time pot possession in such an archaic and punitive manner. Under Arizona law, even minor marijuana possession offenses may be prosecuted as felony crimes, punishable by up to 18 months in jail and a $150,000 fine. According to Jon Gettman’s 2009 analysis only Florida consistently treats minor marijuana possession cases more severely.
Wednesday, May 4, 2011
Case Law Update, Week Ending 4-28-11
Washington State Law
Washington State Supreme Court:
Personal Restraint of Martinez: The Court found that Mr. Martinez’ second PRP was properly before the Court as it did not seek similar relief to his first PRP. The court further found that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon at the time of the robbery he committed, when the evidence showed that Mr. Martinez was found wearing an empty knife sheath and the knife itself was found in the mud yards away from Mr. Martinez, and there was further no evidence in the record that Mr. Martinez had ever reached for the knife, unbuttoned the sheath or removed the knife from the sheath. Likewise, there was no evidence that Mr. Martinez would have used the knife as a deadly weapon. http://www.courts.wa.gov/opinions/pdf/832196.opn.pdf
Personal Restraint of Nichols: In a decision that greatly narrowed its 2007 holding in State v. Jorden, the Court held that in cases where police have an individualized and particularized suspicion leading to a search, a search of motel registry information is permissible and constitutional. The Court differentiated Jorden, a case in which City of Lakewood police practices of trolling local hotels to paw through their registries to see if any wanted criminals were on the premises went a step too far and violated the State constitution. Here, Seattle Police obtained registry information from a local Travel Lodge regarding Mr. Nichols after observing a confidential informant enter the room where Mr. Nichols was later found to be staying and complete a controlled drug buy. Officers learned that Mr. Nichols’ license was suspended and, upon observing him behind the wheel, arrested him. A search incident to arrest revealed drugs and cash. http://www.courts.wa.gov/opinions/pdf/837422.opn.pdf
In a dissent, Justice Fairhurst argued that the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement. The dissent argued that the lead opinion effectively creates an exception to the warrant requirement, that of individualized and particularized suspicion which grants officers “authority of law to search an individual's private affairs for purely investigatory purposes despite a complete lack of need for immediate action.” The exception, the dissent urged, undermines the warrant requirement’s purpose of reducing the risk of erroneous searches by involving a neutral magistrate. Justice Fairhurst concluded that Jorden’s holding that motel registry information is a private affair, combined with the structure of article I, section 7, “compels the conclusion that obtaining Nichols' motel registry information without a warrant violated his constitutional right to hold that information free from unjustified government intrusion.” http://www.courts.wa.gov/opinions/pdf/837422.no1.pdf
In a concurrence, Justice Madsen wrote separately to agree with the conclusion of the lead opinion, for the reasons stated by the Justice in State v. Jorden. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=837422Co1
Division Two Court of Appeals:
State v. Carter: The Court reversed the trial court’s dismissal of Mr. Carter’s charges for possession of a machine gun. The Court held that the exemption under RCW 9.41.190(2)(b), allowing possession of a machine gun for those exempt from the prohibition against such weapons or licensed to possess such weapons under federal law if such persons are engaged in the production, manufacture, repair, or testing of machine guns, is not an element of the offense but, rather, a defense that Mr. Carter had the burden of establishing. Further, the Court found that the RCW 9.41.190(2)(b)exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law and that Mr. Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. http://www.courts.wa.gov/opinions/pdf/39392-1.11.doc.pdf
Division Two Court of Appeals:
State v. Martinez: The Court reversed Mr. Martinez’ conviction and remanded to allow Mr. Martinez to withdraw his guilty plea to the crime of possession of a controlled substance with intent to deliver. The Court found that the crime is an aggravated felony that, when committed by Mr. Martinez, an alien, is a deportable offense. The court further found that Mr. Martinez was not notified of the certain deportation consequences of his plea and was deficient under Strickland and Sandoval for this failure. The fact that deportation was a material factor and Mr. Martinez would not have pleaded guilty had he known of the deportation consequences was sufficient to establish prejudice under Sandoval, despite the fact that Mr. Martinez’ plea was entered prior to the entry of the Sandoval decision. http://www.courts.wa.gov/opinions/pdf/290182.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sandoval-Gonzalez: The Court found error when the jury at Mr. Sandoval-Gonzalez’ trial on charges of being an alien who reentered the United States after previously being deported was not required to find beyond a reasonable doubt that Mr. Sandoval-Gonzalez was an alien. Instead, the jury was told that “there is a presumption” of his alienage, and the burden of proof was shifted to Mr. Sandoval-Gonzalez to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The Court held that this was prejudicial error, vacated Mr. Sandoval-Gonzalez’ conviction and remanded. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf
Miller v. Oregon Board of Parole: The Court extended its decision in Hayward v. Marshall, that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution, to a similar liberty interest in early parole created by an Oregon statute. The Court also held that, following Swarthout v. Cooke, the Oregon Board of Parole and Post-Prison Supervision did not violate Mr. Miller’s due process rights when it denied him that eligibility. The court observed that, as in Cooke, Mr. Miller was afforded access to his records in advance of the hearings, and he was given the opportunity to submit information to the Board and to make a statement during the hearing. And, although the Board’s initial decision was not explained, Mr. Miller was eventually provided with a written statement of the reasons why he was denied early eligibility for parole. After Cooke, the court ruled that that is the beginning and the end of the inquiry into whether he received due process, so we need look no further to affirm the district court’s denial of Miller’s petition.
http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/07-36086.pdf
United States v. Maier: The Court affirmed Mr. Maier’s sentence of 210 months and a lifetime term of supervised release for receipt/distribution of child pornography. The Court held that the district court correctly relied upon statutory factors to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and that the district court’s sentence was procedurally and substantively reasonable. The Court reasoned that the district court carefully considered the totality of the circumstances in determining Mr. Maier’s sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/27/09-10397.pdf
United States v. Whitlock: The Court found that Rule 32.1 of the Federal Rules of Criminal Procedure, which primarily governs sentencing procedures for probation and supervised release violations, did not speak to the particular question at issue – whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed. The Court concluded that Rule 32(e)(3) logically fills in the gap, and therefore post-revocation sentencing recommendations, like their post-conviction brethren, must be disclosed unless the district court directs otherwise. The Court held that the district court complied with the requirements of United States v. Baldrich that it disclose any factual information in the confidential recommendation on which it relied in sentencing, and that Rule 32(e)(3) comports with the Equal Protection Clause, so there was no violation of Mr. Whitlock’s constitutional rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-30124.pdf
Kemp v. Ryan: The Court affirmed the district court’s denial of Mr. Kemp’s habeas corpus petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnapping and from his capital sentence. The Court found that Mr. Kemp did not carry his burden of showing that he is entitled to relief on his appeal from the district court’s denial of his habeas petition. Because the petition was filed after the effective date of the AEDPA, the Court noted, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. The Court held that Mr. Kemp failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. The Court further held that Mr. Kemp did not show that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” The Court declined to reach Mr. Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/Tison, because it held that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, the Court found that Mr. Kemp did not show that the trial court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/08-99030.pdf
United States v. Nosal: The Court reversed the district court’s dismissal of several counts of an indictment charging Mr. Nosal with numerous violations of the Computer Fraud and Abuse Act (“CFAA”). Specifically, Mr. Nosal and his co-conspirators were charged with exceeding their authorized access to their employer’s computer system by obtaining information from the computer system for the purpose of defrauding their employer and helping Mr. Nosal set up a competing business. The Court held that under the applicable statute, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer. The court found that a previous opinion, LVRC Holdings LLC v. Brekka, did not mandate the conclusion reached by the district court, that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information under any circumstances.
In a dissent, Judge Campbell argued that construing “exceeds authorized access” to include “violating an employer’s computer access restrictions — including use restrictions” does not further Congress’s stated purpose in enacting the Computer Fraud and Abuse Act, and in fact renders one of the statute’s provisions unconstitutionally vague. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf
United States v. Henderson: Mr. Henderson appealed based on the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States to vary from the Sentencing Guidelines when sentencing him on charges of possession of child pornography based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The court found that it was unclear whether the district judge recognized and exercised his Kimbrough discretion, and reversed and remanded for resentencing. The Court found that the district court judge suggested that Mr. Henderson raise on appeal the argument of whether Kimbrough applied to this case, but also indicated that he was not accepting the argument that he must exercise Kimbrough discretion. For this reason, the Court held it was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the sentencing guidelines on policy grounds, or whether it recognized, but declined to exercise that discretion. The court remanded for resentencing.
In a concurrence, Judge Berzon wrote separately “to emphasize that unjust and sometimes bizarre results will follow if [the sentencing guidelines for possession of child pornography are] applied by district courts without a special awareness of the Guideline’s anomalous history.”
Concurring in the result, Judge Callahan agreed that because the district judge’s ruling on the extent to which he could exercise his discretion in departing from the Guidelines for child pornography was not clear, a remand is appropriate. However, Judge Callahan wrote separately to express disagreement with the majority’s suggestion that the district court is free to disagree with the Guidelines for child pornography on policy grounds without explaining its disagreement. Judge Callahan argued that the Guidelines for child pornography are not similar to the crack cocaine Guideline considered by the Supreme Court in Kimbrough, and therefore disagreed that the Guidelines for possession of child pornography inherently come within the “Kimbrough discretion.” http://www.ca9.uscourts.gov/datastore/opinions/2011/04/29/09-50544.pdf
United States Supreme Court:
Sossamon v. Texas: Mr. Sossamon sued the State of Texas and prison officials, seeking injunctive and monetary relief under the Religious Land Use and Institutionalized Persons Act of 2000 due to prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. In a decision authored by Justice Thomas and joined by Justices Roberts, Scalia, Kennedy, Ginsburg, and Alito, the Court held that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.
Justice Sotomayor dissented, joined by Justice Breyer, arguing that it is “self-evident” that monetary damages are appropriate relief under the RLUIPA for violations of that act’s substantive provisions, and that the States consent to suit for such violations in accepting federal funds.
Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf
Washington State Supreme Court:
Personal Restraint of Martinez: The Court found that Mr. Martinez’ second PRP was properly before the Court as it did not seek similar relief to his first PRP. The court further found that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon at the time of the robbery he committed, when the evidence showed that Mr. Martinez was found wearing an empty knife sheath and the knife itself was found in the mud yards away from Mr. Martinez, and there was further no evidence in the record that Mr. Martinez had ever reached for the knife, unbuttoned the sheath or removed the knife from the sheath. Likewise, there was no evidence that Mr. Martinez would have used the knife as a deadly weapon. http://www.courts.wa.gov/opinions/pdf/832196.opn.pdf
Personal Restraint of Nichols: In a decision that greatly narrowed its 2007 holding in State v. Jorden, the Court held that in cases where police have an individualized and particularized suspicion leading to a search, a search of motel registry information is permissible and constitutional. The Court differentiated Jorden, a case in which City of Lakewood police practices of trolling local hotels to paw through their registries to see if any wanted criminals were on the premises went a step too far and violated the State constitution. Here, Seattle Police obtained registry information from a local Travel Lodge regarding Mr. Nichols after observing a confidential informant enter the room where Mr. Nichols was later found to be staying and complete a controlled drug buy. Officers learned that Mr. Nichols’ license was suspended and, upon observing him behind the wheel, arrested him. A search incident to arrest revealed drugs and cash. http://www.courts.wa.gov/opinions/pdf/837422.opn.pdf
In a dissent, Justice Fairhurst argued that the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement. The dissent argued that the lead opinion effectively creates an exception to the warrant requirement, that of individualized and particularized suspicion which grants officers “authority of law to search an individual's private affairs for purely investigatory purposes despite a complete lack of need for immediate action.” The exception, the dissent urged, undermines the warrant requirement’s purpose of reducing the risk of erroneous searches by involving a neutral magistrate. Justice Fairhurst concluded that Jorden’s holding that motel registry information is a private affair, combined with the structure of article I, section 7, “compels the conclusion that obtaining Nichols' motel registry information without a warrant violated his constitutional right to hold that information free from unjustified government intrusion.” http://www.courts.wa.gov/opinions/pdf/837422.no1.pdf
In a concurrence, Justice Madsen wrote separately to agree with the conclusion of the lead opinion, for the reasons stated by the Justice in State v. Jorden. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=837422Co1
Division Two Court of Appeals:
State v. Carter: The Court reversed the trial court’s dismissal of Mr. Carter’s charges for possession of a machine gun. The Court held that the exemption under RCW 9.41.190(2)(b), allowing possession of a machine gun for those exempt from the prohibition against such weapons or licensed to possess such weapons under federal law if such persons are engaged in the production, manufacture, repair, or testing of machine guns, is not an element of the offense but, rather, a defense that Mr. Carter had the burden of establishing. Further, the Court found that the RCW 9.41.190(2)(b)exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law and that Mr. Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. http://www.courts.wa.gov/opinions/pdf/39392-1.11.doc.pdf
Division Two Court of Appeals:
State v. Martinez: The Court reversed Mr. Martinez’ conviction and remanded to allow Mr. Martinez to withdraw his guilty plea to the crime of possession of a controlled substance with intent to deliver. The Court found that the crime is an aggravated felony that, when committed by Mr. Martinez, an alien, is a deportable offense. The court further found that Mr. Martinez was not notified of the certain deportation consequences of his plea and was deficient under Strickland and Sandoval for this failure. The fact that deportation was a material factor and Mr. Martinez would not have pleaded guilty had he known of the deportation consequences was sufficient to establish prejudice under Sandoval, despite the fact that Mr. Martinez’ plea was entered prior to the entry of the Sandoval decision. http://www.courts.wa.gov/opinions/pdf/290182.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sandoval-Gonzalez: The Court found error when the jury at Mr. Sandoval-Gonzalez’ trial on charges of being an alien who reentered the United States after previously being deported was not required to find beyond a reasonable doubt that Mr. Sandoval-Gonzalez was an alien. Instead, the jury was told that “there is a presumption” of his alienage, and the burden of proof was shifted to Mr. Sandoval-Gonzalez to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The Court held that this was prejudicial error, vacated Mr. Sandoval-Gonzalez’ conviction and remanded. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf
Miller v. Oregon Board of Parole: The Court extended its decision in Hayward v. Marshall, that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution, to a similar liberty interest in early parole created by an Oregon statute. The Court also held that, following Swarthout v. Cooke, the Oregon Board of Parole and Post-Prison Supervision did not violate Mr. Miller’s due process rights when it denied him that eligibility. The court observed that, as in Cooke, Mr. Miller was afforded access to his records in advance of the hearings, and he was given the opportunity to submit information to the Board and to make a statement during the hearing. And, although the Board’s initial decision was not explained, Mr. Miller was eventually provided with a written statement of the reasons why he was denied early eligibility for parole. After Cooke, the court ruled that that is the beginning and the end of the inquiry into whether he received due process, so we need look no further to affirm the district court’s denial of Miller’s petition.
http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/07-36086.pdf
United States v. Maier: The Court affirmed Mr. Maier’s sentence of 210 months and a lifetime term of supervised release for receipt/distribution of child pornography. The Court held that the district court correctly relied upon statutory factors to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and that the district court’s sentence was procedurally and substantively reasonable. The Court reasoned that the district court carefully considered the totality of the circumstances in determining Mr. Maier’s sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/27/09-10397.pdf
United States v. Whitlock: The Court found that Rule 32.1 of the Federal Rules of Criminal Procedure, which primarily governs sentencing procedures for probation and supervised release violations, did not speak to the particular question at issue – whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed. The Court concluded that Rule 32(e)(3) logically fills in the gap, and therefore post-revocation sentencing recommendations, like their post-conviction brethren, must be disclosed unless the district court directs otherwise. The Court held that the district court complied with the requirements of United States v. Baldrich that it disclose any factual information in the confidential recommendation on which it relied in sentencing, and that Rule 32(e)(3) comports with the Equal Protection Clause, so there was no violation of Mr. Whitlock’s constitutional rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-30124.pdf
Kemp v. Ryan: The Court affirmed the district court’s denial of Mr. Kemp’s habeas corpus petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnapping and from his capital sentence. The Court found that Mr. Kemp did not carry his burden of showing that he is entitled to relief on his appeal from the district court’s denial of his habeas petition. Because the petition was filed after the effective date of the AEDPA, the Court noted, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. The Court held that Mr. Kemp failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. The Court further held that Mr. Kemp did not show that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” The Court declined to reach Mr. Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/Tison, because it held that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, the Court found that Mr. Kemp did not show that the trial court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/08-99030.pdf
United States v. Nosal: The Court reversed the district court’s dismissal of several counts of an indictment charging Mr. Nosal with numerous violations of the Computer Fraud and Abuse Act (“CFAA”). Specifically, Mr. Nosal and his co-conspirators were charged with exceeding their authorized access to their employer’s computer system by obtaining information from the computer system for the purpose of defrauding their employer and helping Mr. Nosal set up a competing business. The Court held that under the applicable statute, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer. The court found that a previous opinion, LVRC Holdings LLC v. Brekka, did not mandate the conclusion reached by the district court, that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information under any circumstances.
In a dissent, Judge Campbell argued that construing “exceeds authorized access” to include “violating an employer’s computer access restrictions — including use restrictions” does not further Congress’s stated purpose in enacting the Computer Fraud and Abuse Act, and in fact renders one of the statute’s provisions unconstitutionally vague. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf
United States v. Henderson: Mr. Henderson appealed based on the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States to vary from the Sentencing Guidelines when sentencing him on charges of possession of child pornography based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The court found that it was unclear whether the district judge recognized and exercised his Kimbrough discretion, and reversed and remanded for resentencing. The Court found that the district court judge suggested that Mr. Henderson raise on appeal the argument of whether Kimbrough applied to this case, but also indicated that he was not accepting the argument that he must exercise Kimbrough discretion. For this reason, the Court held it was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the sentencing guidelines on policy grounds, or whether it recognized, but declined to exercise that discretion. The court remanded for resentencing.
In a concurrence, Judge Berzon wrote separately “to emphasize that unjust and sometimes bizarre results will follow if [the sentencing guidelines for possession of child pornography are] applied by district courts without a special awareness of the Guideline’s anomalous history.”
Concurring in the result, Judge Callahan agreed that because the district judge’s ruling on the extent to which he could exercise his discretion in departing from the Guidelines for child pornography was not clear, a remand is appropriate. However, Judge Callahan wrote separately to express disagreement with the majority’s suggestion that the district court is free to disagree with the Guidelines for child pornography on policy grounds without explaining its disagreement. Judge Callahan argued that the Guidelines for child pornography are not similar to the crack cocaine Guideline considered by the Supreme Court in Kimbrough, and therefore disagreed that the Guidelines for possession of child pornography inherently come within the “Kimbrough discretion.” http://www.ca9.uscourts.gov/datastore/opinions/2011/04/29/09-50544.pdf
United States Supreme Court:
Sossamon v. Texas: Mr. Sossamon sued the State of Texas and prison officials, seeking injunctive and monetary relief under the Religious Land Use and Institutionalized Persons Act of 2000 due to prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. In a decision authored by Justice Thomas and joined by Justices Roberts, Scalia, Kennedy, Ginsburg, and Alito, the Court held that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.
Justice Sotomayor dissented, joined by Justice Breyer, arguing that it is “self-evident” that monetary damages are appropriate relief under the RLUIPA for violations of that act’s substantive provisions, and that the States consent to suit for such violations in accepting federal funds.
Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf
Saturday, April 30, 2011
Friday, April 22, 2011
Thursday, April 21, 2011
Thursday, March 31, 2011
Friday, March 18, 2011
Criminal Case Law Update, Week Ending 3-11-11
Washington State Law
Washington State Supreme Court:
State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf
In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf
Division One Court of Appeals:
Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf
Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf
State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf
Division Three Court of Appeals:
State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf
State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf
State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.
In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf
United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf
United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf
United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.
In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf
United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf
Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf
United States Supreme Court:
Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.
Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf
Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.
In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf
Washington State Supreme Court:
State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf
In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf
Division One Court of Appeals:
Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf
Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf
State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf
Division Three Court of Appeals:
State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf
State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf
State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.
In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf
United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf
United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf
United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.
In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf
United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf
Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf
United States Supreme Court:
Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.
Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf
Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.
In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf
Friday, March 11, 2011
Criminal Case Law Update, Week Ending 3-4-11
Washington State Law
Washington State Supreme Court:
State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf
Division One Court of Appeals:
State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf
Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf
Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.
In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf
United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf
United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf
United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf
United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf
United States Supreme Court:
Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.
In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”
In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.
In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf
Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.
In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”
In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.
In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf
Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf
Washington State Supreme Court:
State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf
Division One Court of Appeals:
State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf
Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf
Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.
In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf
United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf
United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf
United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf
United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf
United States Supreme Court:
Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.
In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”
In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.
In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf
Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.
In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”
In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.
In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf
Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf
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