The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court
State v. Eserjose: The Court affirmed Mr. Eserjose’s conviction for second degree burglary, holding that even though officers exceeded the scope of the invitation to enter the home and arrested Mr. Eserjose in a private area, thus rendering the arrest illegal, Mr. Eserjose’s confession was nevertheless properly admitted. The Court found that the confession was sufficiently attenuated from the arrest so as to not be fruit of the poisonous tree, because the confession was not attributable to the illegal arrest. http://www.courts.wa.gov/opinions/pdf/824916.opn.pdf
In a concurrence, Justice Madsen agreed that the Court reached the correct result in admitting Mr. Eserjose’s confession because deputies did not obtain the confession by exploiting any unlawful act. However, the justice wrote separately to argue that the lead opinion applies an attenuation analysis where none is required. http://www.courts.wa.gov/opinions/pdf/824916.co1.pdf
In a dissent, Justice Charles Johnson argued that the lead opinion’s allowance of an attenuation exception to the exclusionary rule “effectively removes the incentive for police officers to secure a warrant before invading a citizen's home and offers no remedy for the constitutional violation.” The dissent further argued that the attenuation exception was at odds with the protections given by article I, section 7 of the Washington State Constitution. The dissent pointed out that, “[j]ust like the inevitable discovery exception rejected in Winterstein and the good faith exception rejected in Afana, this attenuation exception allows illegally obtained evidence to be admitted.” Instead, the dissent argued, any evidence obtained in violation of a person’s constitutional rights lacks authority of law and must be suppressed. http://www.courts.wa.gov/opinions/pdf/824916.no1.pdf
State v. Jones: The Court affirmed the trial court’s denial of credit towards Mr. Jones’ sentence of community custody for time he spent incarcerated in excess of his amended sentence of incarceration. In so holding, the Court overruled Division Three’s 2008 holding in In Re Knippling, under which that court found that community custody begins at completion of the sentence of confinement and the offender is therefore entitled to credit toward a sentence of community custody for time spent incarcerated in excess of the sentence of incarceration. The Court reasoned that Division Three’s holding ignores the plain language of the sentencing reform act, which specifies that any period of community custody shall toll during any period of time the offender is in confinement "for any reason." The Court found that requiring community custody to begin upon release from confinement is consistent with the statutory definition of "community custody" requiring it to be served in the community. http://www.courts.wa.gov/opinions/pdf/834512.opn.pdf
In a dissent, Justice Stephens argued that the statute clearly stated that Mr. Jones term of community custody was set to begin upon the tem of incarceration, and that the additional 30 days that Mr. Jones was wrongfully confined beyond the term of his sentence should have been credited toward his term of community custody. The dissent further pointed out that there were provisions in the sentencing reform act allowing for such wrongful detention to be applied to community custody, but none that required tolling of the term of community custody during incarceration. http://www.courts.wa.gov/opinions/pdf/834512.no1.pdf
State v. Donaghe: The Court affirmed the denial of Mr. Donaghe’s motion for a certificate of discharge to restore his voting rights. The Court found that the trial court had the authority to deny his motion, that the community placement portion of his sentence was properly tolled during his pre-commitment confinement and civil confinement as a sexually violent predator at the Special Commitment Center, and Mr. Donaghe was therefore not unconstitutionally disenfranchised. http://www.courts.wa.gov/opinions/pdf/837384.opn.pdf
In a dissent, Justice Stephens argued that Mr. Donaghe’s detention under a civil commitment scheme should not have triggered the tolling provisions under the SRA. The dissent argued that the tolling statute and the definition of confinement that triggers such tolling are contained in the SRA and apply to provisions therein, not to an unrelated civil commitment scheme. The dissent noted that by extending the tolling provisions to SVP commitment the majority threatened to go down a slippery slope that could include mental health detention or voluntary inpatient treatment at a State-contracted center. The dissent concluded that Mr. Donaghe had served out his term of community placement at the conclusion of his sentence, and should have been granted a certificate of discharge. http://www.courts.wa.gov/opinions/pdf/837384.no1.pdf
Division Two Court of Appeals
State v. Wilson: The court declined to allow Ms. Wilson to withdraw her guilty plea, finding that the trial court did not abuse its discretion in initially denying her motion to withdraw the plea. Though Ms. Wilson’s case was not yet final when the United States Supreme Court issued its ruling in Gant, the Court held that Ms. Wilson’s guilty plea foreclosed subsequent challenges to alleged constitutional violations. The Court held that a “'guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt.'" Citing State v. Amos, 147 Wn. App. 217, 225-26, 195 P.3d 564 (2008). Finally, the Court noted that the United States Supreme Court has also rejected the proposition that a change in law invalidates a guilty plea. The Court found that Ms. Wilson did not challenge her plea on permissible collateral grounds and had waived a Gant challenge. http://www.courts.wa.gov/opinions/pdf/39789-7-11.doc.pdf
State v. Mosteller: In this partially published opinion, the court held that because Mr. Mosteller failed to object to the administration of antipsychotic medications during trial, he waived his right to challenge the trial court’s order on appeal and, further, due to Mr. Mosteller’s failure to object, there was no evidence he was actually forcibly medicated during the trial. Further, the Court found that the trial court’s administration of the medications without first considering all of the Sell factors did not prevent Mr. Mosteller from receiving a fair trial. http://www.courts.wa.gov/opinions/pdf/39954-7.11.doc.pdf
Division Three Court of Appeals
State v. Chavez: The Court found ineffective assistance of counsel in the entry of Mr. Chavez’ guilty plea, and reversed the trial court’s denial of Mr. Chavez’ motion to withdraw the plea. The Court found that the filing of an “Anders brief” by substitute counsel after Mr. Chavez’ original counsel was allowed to withdraw based on a potential conflict of interest that did not develop any potential claim of conflict following the withdrawal of the original lawyer and suggested that counsel believed his client’s claim was frivolous constituted ineffective assistance. The Court observed that an Anders brief is allowed on appeal but there is no precedent or other authority for the use of such a brief in a trial court. http://www.courts.wa.gov/opinions/pdf/289281.opn.doc.pdf
In a dissent, Judge Korsmo argued that Mr. Chavez presented his argument for withdrawing his guilty plea to the trial court, and the trial court correctly determined that no manifest necessity existed for withdrawing the guilty plea. Therefore, the dissent argued that the judgment should have been affirmed. http://www.courts.wa.gov/opinions/pdf/289281.dis.doc.pdf
State v. Contreras: The court upheld Mr. Contreras’ conviction for possession of a stolen car and the suspension of his driver’s license because the crime involved the use of that car. The Court concluded that the statute of limitations had not run on the offense, despite the fact that Mr. Contreras took possession of the car in 2004, because he continued to possess and use the car up to the date he was charged with the crime. Further, the Court found that the car was used for purposes of a statute that required suspension of a driver’s license when a vehicle is used in the commission of a crime when Mr. Contreras drove the vehicle to a licensing station to attempt to relicense the vehicle using false VIN tags from his old car. http://www.courts.wa.gov/opinions/pdf/284417.opn.doc.pdf
Federal Law
United States Supreme Court
United States v. Juvenile Male: In a per Curiam opinion, the Court dismissed as moot an appeal from a Court of Appeals holding that the requirements of SORNA violate the Ex Post Facto Clause of the Constitution when applied to juveniles adjudicated as delinquent before SORNA’s enactment. The Court concluded that the Court of Appeals had no authority to enter such a judgment because it had no live controversy before it, as the defendant at issue had turned 21 and his registration requirement under SORNA had ceased prior to the hearing of the appeal. The court reasoned that there was no continuing injury or collateral consequence to allow the defendant to continue an appeal beyond the expiration of his sentence. Justices Ginsburg, Breyer, and Sotomayor argued for remand to the Ninth Circuit for determination of whether the case was moot in the first instance. Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/09-940.pdf
Garcia v. Texas: In a per Curiam opinion, the Court declined to give Mr. Garcia a stay of execution imposed upon his conviction for rape and murder of a 16-year-old girl. The Court disagreed with Mr. Garcia’s argument that his conviction was obtained in violation of the Vienna Convention on Consular Relations (Vienna Convention). The Court found that Mr. Garcia’s argument is foreclosed by Medellín v. Texas, in which the Supreme Court held that the Avena decision by the International Court of Justice finding that a court had violated the Vienna Convention by failing to advise a defendant of his right to consular assistance was not directly enforceable law, and found similarly with regard to the President’s Memorandum purporting to implement that decision. The Court likewise declined requests by the United States to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision.
In a dissent written by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan argued in favor of the stay of execution. The dissent argued that following through with the execution would place the United States in “irreparable breach of its obligations under international law.” The dissent pointed out that the United States has ratified the Vienna Convention and is therefore bound to inform an arrested foreign national, such as Mr. Garcia, that he has a right to request the assistance of his country’s consulate. The dissent observed that the Court is ignoring “the appeal of the President in a matter related to foreign affairs,” substitutes its own views about the likelihood of congressional action for the views of the Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. http://www.supremecourt.gov/opinions/10pdf/11-5001.pdf
Ninth Circuit Court of Appeals
United States v. Gonzalez-Melchor: The Court reversed and remanded Mr. Gonzalez-Melchor’s conviction and sentence for re-entry after deportation, finding that the immigration judge failed to advise Mr. Gonzalez-Melchor of his eligibility for voluntary departure and remanding for proceedings to determine whether Mr. Gonzalez-Melchor was prejudiced by this failure. The Court further found that the appeal waiver signed by Mr. Gonzalez-Melchor at sentencing in exchange for a reduced sentence is invalid and unenforceable. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/10-50111.pdf
Hurles v. Ryan: The court reversed the district court’s denial of Mr. Hurles’ petition for a writ of habeas corpus from his murder conviction and death sentence. Specifically, the court reversed the district court’s denial of Mr. Hurles’ judicial bias claim, finding that the trial judge’s action in becoming involved as a party in an interlocutory appeal, attempted but was denied standing to appear as an adversary, and then presided over Mr. Hurles’ murder trial and single-handedly determined his death sentence demonstrated bias and forced the court to conclude that Mr. Hurles was denied his right to due process. The Court remanded to the district court with instructions to grant a writ of habeas corpus as to Petitioner’s sentence unless the State of Arizona elects, within 90 days of the issuance of the mandate, to resentence Petitioner before a jury and presided over by a judge other than the original sentencing judge in this case.
In a dissent, Judge Ikuta argued that the Court’s decision ignores AEDPA’s command to defer to a state court decision unless it is objectively unreasonable, and argued that the AEDPA analysis here is straightforward. The dissent reported that, in an appeal of a denial of Mr. Hurles’ motion for appointment of a second attorney, the state Attorney General submitted a brief in the trial judge’s name defending the ruling. It was this participation that Mr. Hurles, over seven years later, claimed violated his due process rights and merited the judge’s recusal from further participation in this case. The trial judge denied that motion. The dissent observed that there is no clearly established Supreme Court authority that even hints the trial court’s decision was wrong, and argued that the court should have deferred to the trial court decision and denied Mr. Hurles’ petition. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/07/08-99032.pdf
United States v. Evanston: In a case of first impression, the Court held that a district court may not, over defense objection after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal. The Court concluded that allowing such a procedure in a criminal trial is an abuse of the discretion accorded district courts in the management of jury deliberations. The Court reasoned that allowing such supplemental argument addressing factual matters permitted counsel to look inside the jury’s deliberations and focus arguments to those factual concerns the court had asked the jury to reveal, the process, in form and substance, invaded the jury’s deliberations, resulting in impermissible coercion. The court vacated the verdict and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10159.pdf
United States v. Rahman: The Court held that Mr. Rahman’s waiver of his right to appeal his conviction extended to the denial of his subsequent motion to withdraw his guilty plea. The Court reasoned that an appeal from the denial of his motion to withdraw his plea is an appeal from his convictions. Further, the Court found that Mr. Rahman’s waiver of his right to appeal was made voluntarily and there was no evidence of ineffective assistance of counsel. However, the Court left open the possibility that Mr. Rahman might raise an ineffective assistance of counsel claim in a subsequent collateral attack. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10293.pdf
Schleining v. Thomas: The Court held that a prisoner is not eligible for federal Good Conduct Time (GCT) for time he served in state prison on state charges, before being sentenced on a related charge in federal court. The Court found that GCT can accrue only on the time a prisoner has “actually served” on his federal sentence, and other jurisdictions have determined that a federal sentence cannot begin before the defendant has been sentenced in federal court. The Court found the logic of those jurisdictions persuasive, and adopted it in this case. The court affirmed the district court’s denial of Mr. Schleining’s petition for a writ of habeas corpus and found that the formerly calculated release date is correct. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-35792.pdf
United States v. Snyder: Mr. Snyder appealed the district court’s determination that second degree burglary in Oregon was a predicate offense under the ACCA for purposes of imposing a sentencing enhancement. The government cross-appealed the district court’s decision that a conviction for felony attempt to elude in Oregon was not a predicate offense under the ACCA. The Court found that the district court was correct that the Oregon burglary conviction was a predicate offense under the modified categorical approach despite precedent to the contrary, as the original indictment together with the judgment of conviction proved that Mr. Snyder necessarily admitted to facts constituting generic burglary, which is a predicate offense under the ACCA. Additionally, the Court found that the felony attempt to elude conviction was a violent felony under the ACCA. The Court then remanded for resentencing under the mandatory minimum sentence of 15 years, with credit for time served. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/30/10-30148.pdf
United States v. Chapman: The Court upheld the district court’s refusal to award Mr. Chapman and his co-defendants attorneys fees under the Hyde Amendment as a result of a dismissed indictment with prejudice for the government’s failure to meet its disclosure obligations under Brady in this securities fraud matter. The defendants had moved to re-open the case after a previous denial of an attorney fee award, citing the discovery of an internal government memorandum written shortly after dismissal of the indictment but not discovered until after the Ninth Circuit had decided the prior appeal. The Court concluded that the district court did not err in declining to reopen the case. In so concluding, the Court reasoned that the memo discovered by the defense “does not provide a sufficient basis to conclude that the government’s failure to disclose impeachment evidence suggested substantive weakness in the merits of the case that made the failure to disclose relevant to innocence.” To the contrary, the Court found that the district court had made clear that the initial dismissal was intended as a sanction for misconduct, and not as a judgment on the merits that could render the defendants prevailing parties for the purposes of an attorney fee award. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-10338.pdf
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Wednesday, June 29, 2011
Case Law Update, Week Ending 6-24-11
The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court
Seattle v. May: The Court affirmed Mr. May’s conviction for violation of a domestic violence protection order, finding Mr. May’s claim that the order was invalid was violated by collateral estoppel. The Court also found that Mr. May’s claim that he lacked notice that violating the no-contact provision of the order was a criminal offense was meritless, as Mr. May in fact had fair notice of this provision. The court explained that if Mr. May believed the order was invalid his remedy was to seek modification of the order; he is not free to violate the order with impunity. http://www.courts.wa.gov/opinions/pdf/836779.opn.pdf
In his dissent, Justice Sanders observed that there must be an explicit and unambiguous statutory finding that the respondent is “likely to resume acts of domestic violence” against the petitioner in order to extend a permanent protection order beyond one year. The dissent argued that the boilerplate finding at issue in this case was vague and inadequate to validly extend the order. Thus, the dissent argued, the order was invalid and could not be admitted into evidence against Mr. May in this case. http://www.courts.wa.gov/opinions/pdf/836779.no1.pdf
Concurring in the dissent, Justice Stephens expressed her agreement with the dissent’s conclusion that the order does not satisfy the statutory requirements for a permanent protection order. However, Justice Stephens wrote separately because she did not feel she could endorse what she termed the dissent’s “gratuitous comments about the misuse of protection orders generally.” http://www.courts.wa.gov/opinions/pdf/836779.no2.pdf
State v. Mullen: The Court held that no Brady violation occurred when the prosecution in this case failed to disclose evidence in a previously sealed deposition of the defendant’s employer’s accountant that supported the defendant’s theory of the case that he had not stolen funds from his employer but had been sanctioned in the use of dealership funds as a reward for assistance with the owner’s dishonest financial dealings. The Court reasoned that the documents were obtained by a private party for the purposes of a separate civil suit, and fall outside the scope of the prosecutor’s duty to diligently seek out evidence favorable to the accused. http://www.courts.wa.gov/opinions/pdf/839816.opn.pdf
Division Two Court of Appeals
State v. Dow: The Court affirmed Mr. Dow’s conviction for first degree burglary, finding that the trial court’s instructions to the jury assigning the burden of proving duress to Mr. Dow was proper, and that the court’s failure to provide a limiting instruction on the use of prior convictions admitted under ER 609 was not in error. Finally, the Court found that counsel was not ineffective in failing to object to the first instruction and in failing to propose the second. http://www.courts.wa.gov/opinions/pdf/39870-2.11.doc.pdf
Federal Law
United States Supreme Court
Freeman v. United States: In an opinion written by Justice Kennedy, and joined by Justices Ginsburg, Breyer, and Kagan, the Court held that plea agreements under FRCP 11(c)(1)(C) may be eligible for sentence modifications under the Sentencing Reform Act of 1984, which authorizes retroactive amendment of a defendant’s term of imprisonment based on a retroactive amendments to the Sentencing Guidelines such as occurred here, when the Guidelines were amended to cure the disparity between sentences for cocaine base and powder cocaine offenses. The Court reasoned that, notwithstanding the fact that the government and Mr. Freeman agreed that the sentencing range dictated by the plea agreement in this case was appropriate and binding upon all parties once the agreement was accepted by the Court, the text of the applicable rules and statutes compel the conclusion that the district court must entertain a motion such as this based on the mandate to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing. The Court reversed the lower courts’ refusal to remand the case for additional sentencing action.
Concurring in the opinion, Justice Sotomayor concluded that if a FRCP 11(c)(1)(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction.
In a dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, argued that pursuant to FRCP 11(c)(1)(C), the proposed sentence in the plea agreement became binding on the district Court once it accepted the plea agreement, and that the parties had agreed on the specific length of the sentence with the apparent understanding that the agreement was immutable and not subject to amendment with changes to the Guidelines. http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf
Bullcoming v. New Mexico: In an opinion written by Justice Ginsburg with respect to all but Part IV and footnote 6, and joined by Justice Scalia in full and Justices Sotomayor and Kagan as to all but Part IV, and Justice Thomas as to all but Part IV and Footnote 6, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. The court reasoned that the certification at issue in this case – blood draw results in a DWI matter – represented more than a machine-generated number, but rather the fact that the analyst had received Mr. Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Mr. Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. The court concluded that these representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. Further, the Court held, that the surrogate testimony of a substitute analyst who had not actually performed the testing in this case could not convey what the analyst who did perform the testing knew or observed about the events he certified, nor expose any lapses or lies on that analyst’s part. The Court observed that “[t]he Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” Finally, the Court cited Melendez-Diaz in finding that the State could not argue that the introduction of the lab report did not implicate the Confrontation Clause, as the report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding.
In a partial concurrence, Justice Sotomayor wrote separately to detail the reasons she believed the report at issue to be testimonial, specifically because its primary purposes was evidentiary, and second to emphasize the differences between the instant matter and Melendez-Diaz, primarily that the State did not attempt to justify the entry of the report under alternate means.
In a dissent, Justice Kennedy, joined by Justices Roberts, Breyer, and Alito argued that the Court had erred in extended the holding in Melendez-Diaz to this case, where a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court found a confrontation violation. The dissent argued that allowing employee testimony as a substitute for the testimony of the actual analyst in the case is fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee. The dissent disagreed that the decision would not place an undue burden on the Prosecution, finding that additional resources would need to be allocated to laboratory personnel to ensure that there was an appropriate representative available for testimony else risk inadmissibility of key evidence, and that those resources would be better spent elsewhere. http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf
Ninth Circuit Court of Appeals
United States v. Flores-Perez: The Court found that there was no jurisdiction for it to consider Mr. Flores-Perez’ double jeopardy claims. Mr. Flores-Perez had moved to dismiss the action against him under a superseding indictment filed after the original indictment resulted in a hung jury. The Court found that the superseding indictment did not nullify the original indictment, and that the issuance of the superseding indictment did not terminate the original jeopardy, and thus no colorable claim of double jeopardy could be made. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/10-50246.pdf
United States v. Martinez: The court found that the life sentences of the defendants in this case, all members of the Mexican Mafia, were justified due to evidence they had participated in conspiracies to commit murder. The court further found that defendant Fernandez had agreed to facilitate a scheme which included the operation or management of a RICO conspiracy and was linked to one of the murders, and this was sufficient for his conviction. The Court found that statements linking defendant Valenzuela to another murder were admissible as statements of a coconspirator advancing the conspiracy’s aim. Additionally, the court held that the district court did not abuse its discretion when it admitted FBI Agent Vitkosky’s testimony as both an agent and an expert in the Mexican Mafia, reasoning that the district court properly identified the testimony as it came in. The Court found, as well, that though the government had not identified Agent Vitkosky as an expert within the time limit prescribed by the Federal Rules, it had done so in sufficient time for the defense to prepare cross-examination against this witness. The Court found that defendant Gonzalez was not prejudiced by significant redactions made in a voluntary statement he made to the government, and that the district court did not err in denying the defense’s motion for a mistrial based on the use of an apprehensive juror. Additionally, the Court found that the use of Mr. Martinez’ sobriquet of “The Evil One” and the shackling of the defendants, disguised as it was, was not in error. The Court further found meritless arguments against lay witnesses allowed to provide opinion testimony and the district court’s denial of defendant Durkin’s request for new counsel. Finally, the Court found it proper that the defendants’ motions for severance were denied, and that a document referred to as a Homicide Book was admitted for trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-50141.pdf
Reina-Rodriguez v. United States: The court concluded that its decision in United States v. Grisel has retroactive effect because it was a non-constitutional decision of substantive law. The court further found that, under Grisel, the defendant’s burglary conviction does not qualify categorically as a predicate offense for a sentence enhancement, and that the documents in the record are not sufficient to sustain the sentence under a modified categorical analysis. The Court therefore reversed the district court and remanded for resentencing. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-16676.pdf
United States v. Renzi: The Court affirmed in part the conviction of former Arizona Congressman Richard G. Renzi for allegedly using his public office to benefit himself rather than his constituents. According to the indictment, Mr. Renzi offered two private parties a quid pro quo deal, promising them his support in favorable future public land exchange legislation in exchange for the parties’ purchase of private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Mr. Renzi. The Court rejected Mr. Renzi’ contention that he is protected by the Speech or Debate Clause, arguing that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.” The Court held that the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility,” and that Mr. Renzi’s actions fall beyond the Clause’s protections. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/23/10-10088.pdf
Washington State Law
Washington State Supreme Court
Seattle v. May: The Court affirmed Mr. May’s conviction for violation of a domestic violence protection order, finding Mr. May’s claim that the order was invalid was violated by collateral estoppel. The Court also found that Mr. May’s claim that he lacked notice that violating the no-contact provision of the order was a criminal offense was meritless, as Mr. May in fact had fair notice of this provision. The court explained that if Mr. May believed the order was invalid his remedy was to seek modification of the order; he is not free to violate the order with impunity. http://www.courts.wa.gov/opinions/pdf/836779.opn.pdf
In his dissent, Justice Sanders observed that there must be an explicit and unambiguous statutory finding that the respondent is “likely to resume acts of domestic violence” against the petitioner in order to extend a permanent protection order beyond one year. The dissent argued that the boilerplate finding at issue in this case was vague and inadequate to validly extend the order. Thus, the dissent argued, the order was invalid and could not be admitted into evidence against Mr. May in this case. http://www.courts.wa.gov/opinions/pdf/836779.no1.pdf
Concurring in the dissent, Justice Stephens expressed her agreement with the dissent’s conclusion that the order does not satisfy the statutory requirements for a permanent protection order. However, Justice Stephens wrote separately because she did not feel she could endorse what she termed the dissent’s “gratuitous comments about the misuse of protection orders generally.” http://www.courts.wa.gov/opinions/pdf/836779.no2.pdf
State v. Mullen: The Court held that no Brady violation occurred when the prosecution in this case failed to disclose evidence in a previously sealed deposition of the defendant’s employer’s accountant that supported the defendant’s theory of the case that he had not stolen funds from his employer but had been sanctioned in the use of dealership funds as a reward for assistance with the owner’s dishonest financial dealings. The Court reasoned that the documents were obtained by a private party for the purposes of a separate civil suit, and fall outside the scope of the prosecutor’s duty to diligently seek out evidence favorable to the accused. http://www.courts.wa.gov/opinions/pdf/839816.opn.pdf
Division Two Court of Appeals
State v. Dow: The Court affirmed Mr. Dow’s conviction for first degree burglary, finding that the trial court’s instructions to the jury assigning the burden of proving duress to Mr. Dow was proper, and that the court’s failure to provide a limiting instruction on the use of prior convictions admitted under ER 609 was not in error. Finally, the Court found that counsel was not ineffective in failing to object to the first instruction and in failing to propose the second. http://www.courts.wa.gov/opinions/pdf/39870-2.11.doc.pdf
Federal Law
United States Supreme Court
Freeman v. United States: In an opinion written by Justice Kennedy, and joined by Justices Ginsburg, Breyer, and Kagan, the Court held that plea agreements under FRCP 11(c)(1)(C) may be eligible for sentence modifications under the Sentencing Reform Act of 1984, which authorizes retroactive amendment of a defendant’s term of imprisonment based on a retroactive amendments to the Sentencing Guidelines such as occurred here, when the Guidelines were amended to cure the disparity between sentences for cocaine base and powder cocaine offenses. The Court reasoned that, notwithstanding the fact that the government and Mr. Freeman agreed that the sentencing range dictated by the plea agreement in this case was appropriate and binding upon all parties once the agreement was accepted by the Court, the text of the applicable rules and statutes compel the conclusion that the district court must entertain a motion such as this based on the mandate to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing. The Court reversed the lower courts’ refusal to remand the case for additional sentencing action.
Concurring in the opinion, Justice Sotomayor concluded that if a FRCP 11(c)(1)(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction.
In a dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, argued that pursuant to FRCP 11(c)(1)(C), the proposed sentence in the plea agreement became binding on the district Court once it accepted the plea agreement, and that the parties had agreed on the specific length of the sentence with the apparent understanding that the agreement was immutable and not subject to amendment with changes to the Guidelines. http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf
Bullcoming v. New Mexico: In an opinion written by Justice Ginsburg with respect to all but Part IV and footnote 6, and joined by Justice Scalia in full and Justices Sotomayor and Kagan as to all but Part IV, and Justice Thomas as to all but Part IV and Footnote 6, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. The court reasoned that the certification at issue in this case – blood draw results in a DWI matter – represented more than a machine-generated number, but rather the fact that the analyst had received Mr. Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Mr. Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. The court concluded that these representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. Further, the Court held, that the surrogate testimony of a substitute analyst who had not actually performed the testing in this case could not convey what the analyst who did perform the testing knew or observed about the events he certified, nor expose any lapses or lies on that analyst’s part. The Court observed that “[t]he Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” Finally, the Court cited Melendez-Diaz in finding that the State could not argue that the introduction of the lab report did not implicate the Confrontation Clause, as the report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding.
In a partial concurrence, Justice Sotomayor wrote separately to detail the reasons she believed the report at issue to be testimonial, specifically because its primary purposes was evidentiary, and second to emphasize the differences between the instant matter and Melendez-Diaz, primarily that the State did not attempt to justify the entry of the report under alternate means.
In a dissent, Justice Kennedy, joined by Justices Roberts, Breyer, and Alito argued that the Court had erred in extended the holding in Melendez-Diaz to this case, where a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court found a confrontation violation. The dissent argued that allowing employee testimony as a substitute for the testimony of the actual analyst in the case is fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee. The dissent disagreed that the decision would not place an undue burden on the Prosecution, finding that additional resources would need to be allocated to laboratory personnel to ensure that there was an appropriate representative available for testimony else risk inadmissibility of key evidence, and that those resources would be better spent elsewhere. http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf
Ninth Circuit Court of Appeals
United States v. Flores-Perez: The Court found that there was no jurisdiction for it to consider Mr. Flores-Perez’ double jeopardy claims. Mr. Flores-Perez had moved to dismiss the action against him under a superseding indictment filed after the original indictment resulted in a hung jury. The Court found that the superseding indictment did not nullify the original indictment, and that the issuance of the superseding indictment did not terminate the original jeopardy, and thus no colorable claim of double jeopardy could be made. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/10-50246.pdf
United States v. Martinez: The court found that the life sentences of the defendants in this case, all members of the Mexican Mafia, were justified due to evidence they had participated in conspiracies to commit murder. The court further found that defendant Fernandez had agreed to facilitate a scheme which included the operation or management of a RICO conspiracy and was linked to one of the murders, and this was sufficient for his conviction. The Court found that statements linking defendant Valenzuela to another murder were admissible as statements of a coconspirator advancing the conspiracy’s aim. Additionally, the court held that the district court did not abuse its discretion when it admitted FBI Agent Vitkosky’s testimony as both an agent and an expert in the Mexican Mafia, reasoning that the district court properly identified the testimony as it came in. The Court found, as well, that though the government had not identified Agent Vitkosky as an expert within the time limit prescribed by the Federal Rules, it had done so in sufficient time for the defense to prepare cross-examination against this witness. The Court found that defendant Gonzalez was not prejudiced by significant redactions made in a voluntary statement he made to the government, and that the district court did not err in denying the defense’s motion for a mistrial based on the use of an apprehensive juror. Additionally, the Court found that the use of Mr. Martinez’ sobriquet of “The Evil One” and the shackling of the defendants, disguised as it was, was not in error. The Court further found meritless arguments against lay witnesses allowed to provide opinion testimony and the district court’s denial of defendant Durkin’s request for new counsel. Finally, the Court found it proper that the defendants’ motions for severance were denied, and that a document referred to as a Homicide Book was admitted for trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-50141.pdf
Reina-Rodriguez v. United States: The court concluded that its decision in United States v. Grisel has retroactive effect because it was a non-constitutional decision of substantive law. The court further found that, under Grisel, the defendant’s burglary conviction does not qualify categorically as a predicate offense for a sentence enhancement, and that the documents in the record are not sufficient to sustain the sentence under a modified categorical analysis. The Court therefore reversed the district court and remanded for resentencing. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-16676.pdf
United States v. Renzi: The Court affirmed in part the conviction of former Arizona Congressman Richard G. Renzi for allegedly using his public office to benefit himself rather than his constituents. According to the indictment, Mr. Renzi offered two private parties a quid pro quo deal, promising them his support in favorable future public land exchange legislation in exchange for the parties’ purchase of private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Mr. Renzi. The Court rejected Mr. Renzi’ contention that he is protected by the Speech or Debate Clause, arguing that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.” The Court held that the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility,” and that Mr. Renzi’s actions fall beyond the Clause’s protections. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/23/10-10088.pdf
Friday, June 24, 2011
Members Of Congress Introduce First Federal Measure Since 1937 To Legalize The Adult Use Of Marijuana -- Bipartisan Coalition Backs The 'Ending Federa
Washington, DC: House lawmakers introduced legislation in Congress today to end the federal criminalization of the personal use of marijuana.
The bipartisan measure -- HR 2306, the 'Ending Federal Marijuana Prohibition Act of 2011' and sponsored by Massachusetts Democrat Barney Frank and Texas Republican Ron Paul along with Reps. Cohen (D-TN), Conyers (D-MI), Polis (D-CO), and Lee (D-CA) -- prohibits the federal government from prosecuting adults who use or possess marijuana by removing the plant and its primary psychoactive constituent, THC, from the five schedules of the United States Controlled Substances Act of 1970. Under present law, all varieties of the marijuana plant are defined as illicit Schedule I controlled substances, defined as possessing 'a high potential for abuse,' and 'no currently accepted medical use in treatment.'
Said Rep. Frank, "We do not believe that the federal government ought to be involved in prosecuting adults for smoking marijuana."
Said Rep. Cohen, "The federal government shouldn’t be spending its time on marijuana."
The 'Ending Federal Marijuana Prohibition Act' seeks to federally deregulate the personal possession and use of marijuana by adults. It marks the first time that members of Congress have introduced legislation to eliminate the federal criminalization of marijuana since the passage of the Marihuana Tax Act of 1937.
Language in this Act mimics changes enacted by Congress to repeal the federal prohibition of alcohol. Passage of this measure would remove the existing conflict between federal law and the laws of those sixteen states that allow for the limited use of marijuana under a physicians' supervision. It would also allow state governments that wish to fully legalize and regulate the responsible use, possession, production, and intrastate distribution of marijuana for all adults to be free to do so without federal interference.
Speaking today at a press conference in support of the measure, NORML Executive Director Allen St. Pierre said, "The federal criminalization of marijuana has failed to reduce the public's demand or access to cannabis, and it has imposed enormous fiscal and human costs upon the American people. It is time to end this failed public policy and to provide state governments with the freedom to enact alternative strategies -- such as medicalization, decriminalization, and/or legalization -- without running afoul of the federal law or the whims of the Department of Justice."
NORML, along with representatives from the Drug Policy Alliance (DPA), Students for Sensible Drug Policy (SSDP), and the Marijuana Policy Project (MPP), worked closely with members of Congress in drafting the measure.
For more information, please contact Allen St. Pierre, NORML Executive Director, or Keith Stroup, NORML Legal Counsel, at (202) 483-5500. Additional information regarding this measure is available online at: http://www.norml.org/index.cfm?Group_ID=8600.
The bipartisan measure -- HR 2306, the 'Ending Federal Marijuana Prohibition Act of 2011' and sponsored by Massachusetts Democrat Barney Frank and Texas Republican Ron Paul along with Reps. Cohen (D-TN), Conyers (D-MI), Polis (D-CO), and Lee (D-CA) -- prohibits the federal government from prosecuting adults who use or possess marijuana by removing the plant and its primary psychoactive constituent, THC, from the five schedules of the United States Controlled Substances Act of 1970. Under present law, all varieties of the marijuana plant are defined as illicit Schedule I controlled substances, defined as possessing 'a high potential for abuse,' and 'no currently accepted medical use in treatment.'
Said Rep. Frank, "We do not believe that the federal government ought to be involved in prosecuting adults for smoking marijuana."
Said Rep. Cohen, "The federal government shouldn’t be spending its time on marijuana."
The 'Ending Federal Marijuana Prohibition Act' seeks to federally deregulate the personal possession and use of marijuana by adults. It marks the first time that members of Congress have introduced legislation to eliminate the federal criminalization of marijuana since the passage of the Marihuana Tax Act of 1937.
Language in this Act mimics changes enacted by Congress to repeal the federal prohibition of alcohol. Passage of this measure would remove the existing conflict between federal law and the laws of those sixteen states that allow for the limited use of marijuana under a physicians' supervision. It would also allow state governments that wish to fully legalize and regulate the responsible use, possession, production, and intrastate distribution of marijuana for all adults to be free to do so without federal interference.
Speaking today at a press conference in support of the measure, NORML Executive Director Allen St. Pierre said, "The federal criminalization of marijuana has failed to reduce the public's demand or access to cannabis, and it has imposed enormous fiscal and human costs upon the American people. It is time to end this failed public policy and to provide state governments with the freedom to enact alternative strategies -- such as medicalization, decriminalization, and/or legalization -- without running afoul of the federal law or the whims of the Department of Justice."
NORML, along with representatives from the Drug Policy Alliance (DPA), Students for Sensible Drug Policy (SSDP), and the Marijuana Policy Project (MPP), worked closely with members of Congress in drafting the measure.
For more information, please contact Allen St. Pierre, NORML Executive Director, or Keith Stroup, NORML Legal Counsel, at (202) 483-5500. Additional information regarding this measure is available online at: http://www.norml.org/index.cfm?Group_ID=8600.
Monday, June 20, 2011
Case Law Update, Week Ending 6-17-11
Washington State Law
Washington State Supreme Court
Personal Restraint of Strandy: The Court granted Mr. Strandy’s motion for discretionary review and remanded to the trial court with directions to vacate two felony murder convictions that the trial court merged with two aggravated first degree murder convictions for sentencing purposes, but did not vacate at the time of sentencing. The Court concluded, and the State conceded, that it was clear from a reading of the judgment and sentence in conjunction with the information that Mr. Strandy was convicted twice for each homicide. http://www.courts.wa.gov/opinions/pdf/823081.opn.pdf
Division Three Court of Appeals
State v. Sweany: The Court held that when an individual commits first degree arson by "knowingly and maliciously . . . [c]aus[ing] a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds," the value of the property to be proved is the “value assigned the property for insurance purposes, whether or not it is (as it should be) a fair reflection of fair market value or replacement value.” In so holding, the Court reasoned that the arson statue’s plain language refers to property “valued at” $10,000 or more, and that the plain and ordinary meaning of "valued at" is of a value that is not inherent or objective but which is, or has been, assigned. Thus, for insurance-motivated arson, where the intent is to collect insurance proceeds, the logical assigned value would be the insured value, or the amount the arsonist hopes to collect. The Court found there was ample evidence to support the insured value as being greater than $10,000 in this case where the owner of the mobile home had taken out a policy insuring the home for $45,000. http://www.courts.wa.gov/opinions/pdf/288609.opn.doc.pdf
State v. King: The Court found that Mr. King’s offender score was incorrectly calculated on one of his two convictions, and reversed both convictions, holding that probation or supervision on an out of state criminal conviction does not count in a Washington offender score calculation. In so doing, the Court reasoned that the command of the SRA to add one point to the offender score if the current offense was committed while the offender was under community custody applies only to the various forms of post-custodial supervision applied to offenders under the SRA. The Court noted that the Legislature understood there were times when Washington supervision needed to equate with the practices of other states, but did not equate other states’ supervision of felons with Washington's supervision for purposes of scoring crimes committed in this state. http://www.courts.wa.gov/opinions/pdf/289052.opn.doc.pdf
Federal Law
United States Supreme Court
Bond v. United States: In an opinion written by Justice Kennedy for a unanimous Court, the Court held that Ms. Bond has standing to challenge the federal statute under which she was indicted, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States, on grounds that the measure interferes with the powers reserved to States. In so holding, the Court found that Article III’s standing requirement has no bearing on Ms. Bond’s capacity to assert defenses in the District Court, and that Article III’s prerequisites are met with regard to Ms. Bond’s standing to appeal. The Court disagreed with the government’s contention that Ms. Bond should be permitted to assert only that Congress cannot enact the challenged statute under its enumerated powers, but not that the statute interferes with state sovereignty.
In a concurrence, Justice Ginsburg, joined by Justice Breyer, wrote separately to observe that Ms. Bond, like any other defendant, has a person right not to be convicted under a constitutionally invalid law, as “[i]f a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free. For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct.” http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
Davis v. United States: In an opinion written by Justice Alito, joined by Justices Roberts, Scalia, Kennedy, Thomas, and Kagan, the Court upheld a good faith exception to the exclusionary rule for searches conducted in violation of a defendant’s Fourth Amendment rights. The Court found that if the search is conducted in objectively reasonable reliance on binding appellate precedent, as was the search in this case, which was conducted prior to the issuance of the Gant decision. The Court reasoned that the exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, and it operation is limited to situations in which this purpose is “thought most efficaciously served.” Thus, the Court concluded, for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Those costs are not outweighed, the Court found, when police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence.
In a concurring opinion, Justice Sotomayor agreed that the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” In this case, the concurrence reasoned, application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence, and thus the exclusionary rule should not apply in this case.
In a dissent, Justice Breyer, joined by Justice Ginsburg, argued that the Gant decision held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have previously removed the automobile’s occupants and placed them securely in a squad car. The dissent noted that the present case involves the same circumstances and, because it was pending while this case was decided, applies in this case, as the majority found. However, the dissent parted ways with the majority with regard to the remedy, arguing that a new “good faith” exception and this Court’s retroactivity decisions are incompatible, as “the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent.” http://www.supremecourt.gov/opinions/10pdf/09-11328.pdf
J.D.B. v. North Carolina: In a unanimous decision written by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, the Court held that a child’s age properly informs Miranda’s custody analysis. Here, a juvenile was not given Miranda warnings or an opportunity to speak to his legal guardian or told he was free to leave the room until after his confession, and was pressured with the threat of juvenile detention to admit his involvement in a robbery. The Court reasoned that a child’s age in some circumstances affects how a reasonable person in the suspect’s position would perceive his or her freedom to leave, the standard for finding a custodial situation for Miranda purposes. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to a reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, nor to “anticipat[e] the frailties or idiosyncrasies of the particular suspect being questioned.” The Court remanded for the state court to address the question of whether J.D.B. was in custody when he was interrogated, taking into account all circumstances, including age.
In a dissent written by Justice Alito, and joined by Justices Roberts, Scalia, and Thomas, Justice Alito argued that the Court’s decision was not sensible, but was “fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases.” The dissent further argued that the holding was not necessary to protect the constitutional rights of minors who are questioned by the police. The dissent posited that this decision was the first step toward a slippery slope that would end in Miranda losing the “clarity and ease of application that has long been viewed as one of its chief justifications. http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf
Tapia v. United States: In a unanimous opinion written by Justice Kagan, the Court held that a federal statute directing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation,” does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Here, Ms. Tapia was convicted of smuggling unauthorized aliens into the United States, and the District Court, in imposing a 51-month prison term, noted its belief that Ms. Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ Residential Drug Abuse Program. The Court reasoned that prior attempts to use an indeterminate sentencing system premised on faith in rehabilitation had failed, resulting in serious sentencing disparities while rehabilitation was not achieved. The court found that the plain language of the statute as well as its context supported the conclusion reached by the Court.
Justice Sotomayor, joined by Justice Alito, concurred in the opinion, but wrote separately to note her skepticism that the District Judge in fact had lengthened Ms. Tapia’s sentence for rehabilitation purposes. However, the concurrence acknowledged that the District Judge’s comments at sentencing were not perfectly clear, and she could therefore not be certain that the judge did not lengthen Ms. Tapia’ sentence to promote rehabilitation. http://www.supremecourt.gov/opinions/10pdf/10-5400.pdf
Ninth Circuit Court of Appeals
United States v. Landa: The Court found that Mr. Landa’s prior conviction for driving with a BAC of .05 or greater while under 21 years of age was similar to a conviction for DUI and thus counted as a criminal history point pursuant to the US Sentencing Guidelines. The Court disagreed with Mr. Landa’s contention that his violation was actually more like a juvenile status offense and should not be counted under the Guidelines.
In a dissent, Circuit Judge Fletcher argued that the Court should have found that Mr. Landa’s offense was similar to a juvenile status offense and should not have been counted as a criminal history point. The dissent argued that the case should be remanded so that Mr. Landa could debrief the government and allow the district court to determine Mr. Landa’s eligibility for safety valve relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/15/09-10429.pdf
United States v. Holmes: The Court vacated and remanded for resentencing on Mr. Holmes’ convictions on six counts of setting public lands afire. Mr. Holmes had argued at sentencing that his crime did not include the destruction or attempted destruction of a place of public use. However, the Court found that Mr. Holmes had conceded the issue of whether the land was a place of public use. The Court then turned to the question of what it means to destroy land, reasoning that, unlike a shattered vase or a shredded document, land will nearly always rebound and be useable again. The Court found that to destroy land, the damage needn’t be total or irreversible and need not eliminate every possible use of the object. Rather, land is destroyed “if it is rendered incapable of being used for one or more of its principal purposes, and can’t be restored swiftly and relatively cheaply… [or] if its aesthetic, environmental, recreational, economic or cultural uses have been eliminated for a significant period of time, generally meaning more than a year.” The Court remanded for further consideration in light of its conclusions, noting that there was insufficient evidence in the record to determine whether or not the fires at issue had destroyed the land.
In a concurrence, Judge Kleinfeld agreed that the sentence should be vacated and the case remanded for resentencing, but argued that the level of sentencing guideline used in this case is that applied to blowing up a government building, an airport, a bus, or a train, and that those acts cannot be compared to the arson in this case. Rather, the concurrence argued, a lower sentencing level is appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/16/09-30211.pdf
United States v. Park: The court reversed and remanded for resentencing of Mr. Park’s 47-month sentence for a charge of being a felon in possession of a firearm, finding that the district court erred when it refused to impose a “crime of violence” sentencing enhancement based on Mr. Park’s prior conviction for first-degree burglary in California. The Court agreed with the government that the crime is categorically a crime of violence under the sentencing guidelines, and should have been so considered when sentence was imposed in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/09-50609.pdf
United States v. Wiles: The Court held that a conviction for attempted sexual assault constitutes a prior conviction for sentencing purposes of a law relating to aggravated sexual abuse, sexual abuse, or abusive conduct involving a minor, such that the district court should apply the enhanced sentencing range of fifteen to forty years to Mr. Wiles, who had been convicted in the present case of transporting or receiving child pornography. The Court reasoned that to be convicted of attempted sexual assault, the sexual assault must “be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” Further, the Court noted, Montana statutes and case law make clear than an attempt under Montana law relates to the competed offense. Thus, the Court concluded that a conviction for attempted sexual assault us under Montana law relates to sexual abuse for the purposes of the sentencing enhancement in this case, and that the district court did not err in imposing the enhancement. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/10-30224.pdf
Notices
Proposed court rule re: Access to judicial branch administrative records ready for public comments: A proposed new court rule governing public access to judicial branch administrative records has been released for public input by the Washington State Supreme Court. The rule presumes open access to judicial administrative records, within the standards and guidelines of the rule. Comments on the proposed rule must be received no later than November 30, 2011.
To read the proposed rule, go to http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=258 .
Washington State Supreme Court
Personal Restraint of Strandy: The Court granted Mr. Strandy’s motion for discretionary review and remanded to the trial court with directions to vacate two felony murder convictions that the trial court merged with two aggravated first degree murder convictions for sentencing purposes, but did not vacate at the time of sentencing. The Court concluded, and the State conceded, that it was clear from a reading of the judgment and sentence in conjunction with the information that Mr. Strandy was convicted twice for each homicide. http://www.courts.wa.gov/opinions/pdf/823081.opn.pdf
Division Three Court of Appeals
State v. Sweany: The Court held that when an individual commits first degree arson by "knowingly and maliciously . . . [c]aus[ing] a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds," the value of the property to be proved is the “value assigned the property for insurance purposes, whether or not it is (as it should be) a fair reflection of fair market value or replacement value.” In so holding, the Court reasoned that the arson statue’s plain language refers to property “valued at” $10,000 or more, and that the plain and ordinary meaning of "valued at" is of a value that is not inherent or objective but which is, or has been, assigned. Thus, for insurance-motivated arson, where the intent is to collect insurance proceeds, the logical assigned value would be the insured value, or the amount the arsonist hopes to collect. The Court found there was ample evidence to support the insured value as being greater than $10,000 in this case where the owner of the mobile home had taken out a policy insuring the home for $45,000. http://www.courts.wa.gov/opinions/pdf/288609.opn.doc.pdf
State v. King: The Court found that Mr. King’s offender score was incorrectly calculated on one of his two convictions, and reversed both convictions, holding that probation or supervision on an out of state criminal conviction does not count in a Washington offender score calculation. In so doing, the Court reasoned that the command of the SRA to add one point to the offender score if the current offense was committed while the offender was under community custody applies only to the various forms of post-custodial supervision applied to offenders under the SRA. The Court noted that the Legislature understood there were times when Washington supervision needed to equate with the practices of other states, but did not equate other states’ supervision of felons with Washington's supervision for purposes of scoring crimes committed in this state. http://www.courts.wa.gov/opinions/pdf/289052.opn.doc.pdf
Federal Law
United States Supreme Court
Bond v. United States: In an opinion written by Justice Kennedy for a unanimous Court, the Court held that Ms. Bond has standing to challenge the federal statute under which she was indicted, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States, on grounds that the measure interferes with the powers reserved to States. In so holding, the Court found that Article III’s standing requirement has no bearing on Ms. Bond’s capacity to assert defenses in the District Court, and that Article III’s prerequisites are met with regard to Ms. Bond’s standing to appeal. The Court disagreed with the government’s contention that Ms. Bond should be permitted to assert only that Congress cannot enact the challenged statute under its enumerated powers, but not that the statute interferes with state sovereignty.
In a concurrence, Justice Ginsburg, joined by Justice Breyer, wrote separately to observe that Ms. Bond, like any other defendant, has a person right not to be convicted under a constitutionally invalid law, as “[i]f a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free. For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct.” http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
Davis v. United States: In an opinion written by Justice Alito, joined by Justices Roberts, Scalia, Kennedy, Thomas, and Kagan, the Court upheld a good faith exception to the exclusionary rule for searches conducted in violation of a defendant’s Fourth Amendment rights. The Court found that if the search is conducted in objectively reasonable reliance on binding appellate precedent, as was the search in this case, which was conducted prior to the issuance of the Gant decision. The Court reasoned that the exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, and it operation is limited to situations in which this purpose is “thought most efficaciously served.” Thus, the Court concluded, for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Those costs are not outweighed, the Court found, when police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence.
In a concurring opinion, Justice Sotomayor agreed that the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” In this case, the concurrence reasoned, application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence, and thus the exclusionary rule should not apply in this case.
In a dissent, Justice Breyer, joined by Justice Ginsburg, argued that the Gant decision held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have previously removed the automobile’s occupants and placed them securely in a squad car. The dissent noted that the present case involves the same circumstances and, because it was pending while this case was decided, applies in this case, as the majority found. However, the dissent parted ways with the majority with regard to the remedy, arguing that a new “good faith” exception and this Court’s retroactivity decisions are incompatible, as “the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent.” http://www.supremecourt.gov/opinions/10pdf/09-11328.pdf
J.D.B. v. North Carolina: In a unanimous decision written by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, the Court held that a child’s age properly informs Miranda’s custody analysis. Here, a juvenile was not given Miranda warnings or an opportunity to speak to his legal guardian or told he was free to leave the room until after his confession, and was pressured with the threat of juvenile detention to admit his involvement in a robbery. The Court reasoned that a child’s age in some circumstances affects how a reasonable person in the suspect’s position would perceive his or her freedom to leave, the standard for finding a custodial situation for Miranda purposes. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to a reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, nor to “anticipat[e] the frailties or idiosyncrasies of the particular suspect being questioned.” The Court remanded for the state court to address the question of whether J.D.B. was in custody when he was interrogated, taking into account all circumstances, including age.
In a dissent written by Justice Alito, and joined by Justices Roberts, Scalia, and Thomas, Justice Alito argued that the Court’s decision was not sensible, but was “fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases.” The dissent further argued that the holding was not necessary to protect the constitutional rights of minors who are questioned by the police. The dissent posited that this decision was the first step toward a slippery slope that would end in Miranda losing the “clarity and ease of application that has long been viewed as one of its chief justifications. http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf
Tapia v. United States: In a unanimous opinion written by Justice Kagan, the Court held that a federal statute directing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation,” does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Here, Ms. Tapia was convicted of smuggling unauthorized aliens into the United States, and the District Court, in imposing a 51-month prison term, noted its belief that Ms. Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ Residential Drug Abuse Program. The Court reasoned that prior attempts to use an indeterminate sentencing system premised on faith in rehabilitation had failed, resulting in serious sentencing disparities while rehabilitation was not achieved. The court found that the plain language of the statute as well as its context supported the conclusion reached by the Court.
Justice Sotomayor, joined by Justice Alito, concurred in the opinion, but wrote separately to note her skepticism that the District Judge in fact had lengthened Ms. Tapia’s sentence for rehabilitation purposes. However, the concurrence acknowledged that the District Judge’s comments at sentencing were not perfectly clear, and she could therefore not be certain that the judge did not lengthen Ms. Tapia’ sentence to promote rehabilitation. http://www.supremecourt.gov/opinions/10pdf/10-5400.pdf
Ninth Circuit Court of Appeals
United States v. Landa: The Court found that Mr. Landa’s prior conviction for driving with a BAC of .05 or greater while under 21 years of age was similar to a conviction for DUI and thus counted as a criminal history point pursuant to the US Sentencing Guidelines. The Court disagreed with Mr. Landa’s contention that his violation was actually more like a juvenile status offense and should not be counted under the Guidelines.
In a dissent, Circuit Judge Fletcher argued that the Court should have found that Mr. Landa’s offense was similar to a juvenile status offense and should not have been counted as a criminal history point. The dissent argued that the case should be remanded so that Mr. Landa could debrief the government and allow the district court to determine Mr. Landa’s eligibility for safety valve relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/15/09-10429.pdf
United States v. Holmes: The Court vacated and remanded for resentencing on Mr. Holmes’ convictions on six counts of setting public lands afire. Mr. Holmes had argued at sentencing that his crime did not include the destruction or attempted destruction of a place of public use. However, the Court found that Mr. Holmes had conceded the issue of whether the land was a place of public use. The Court then turned to the question of what it means to destroy land, reasoning that, unlike a shattered vase or a shredded document, land will nearly always rebound and be useable again. The Court found that to destroy land, the damage needn’t be total or irreversible and need not eliminate every possible use of the object. Rather, land is destroyed “if it is rendered incapable of being used for one or more of its principal purposes, and can’t be restored swiftly and relatively cheaply… [or] if its aesthetic, environmental, recreational, economic or cultural uses have been eliminated for a significant period of time, generally meaning more than a year.” The Court remanded for further consideration in light of its conclusions, noting that there was insufficient evidence in the record to determine whether or not the fires at issue had destroyed the land.
In a concurrence, Judge Kleinfeld agreed that the sentence should be vacated and the case remanded for resentencing, but argued that the level of sentencing guideline used in this case is that applied to blowing up a government building, an airport, a bus, or a train, and that those acts cannot be compared to the arson in this case. Rather, the concurrence argued, a lower sentencing level is appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/16/09-30211.pdf
United States v. Park: The court reversed and remanded for resentencing of Mr. Park’s 47-month sentence for a charge of being a felon in possession of a firearm, finding that the district court erred when it refused to impose a “crime of violence” sentencing enhancement based on Mr. Park’s prior conviction for first-degree burglary in California. The Court agreed with the government that the crime is categorically a crime of violence under the sentencing guidelines, and should have been so considered when sentence was imposed in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/09-50609.pdf
United States v. Wiles: The Court held that a conviction for attempted sexual assault constitutes a prior conviction for sentencing purposes of a law relating to aggravated sexual abuse, sexual abuse, or abusive conduct involving a minor, such that the district court should apply the enhanced sentencing range of fifteen to forty years to Mr. Wiles, who had been convicted in the present case of transporting or receiving child pornography. The Court reasoned that to be convicted of attempted sexual assault, the sexual assault must “be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” Further, the Court noted, Montana statutes and case law make clear than an attempt under Montana law relates to the competed offense. Thus, the Court concluded that a conviction for attempted sexual assault us under Montana law relates to sexual abuse for the purposes of the sentencing enhancement in this case, and that the district court did not err in imposing the enhancement. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/10-30224.pdf
Notices
Proposed court rule re: Access to judicial branch administrative records ready for public comments: A proposed new court rule governing public access to judicial branch administrative records has been released for public input by the Washington State Supreme Court. The rule presumes open access to judicial administrative records, within the standards and guidelines of the rule. Comments on the proposed rule must be received no later than November 30, 2011.
To read the proposed rule, go to http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=258 .
Wednesday, June 8, 2011
Case Law Update, Week Ending 6-3-11
The following criminal cases of note were decided this week:
Washington State Law
Division One Court of Appeals
State v. J. M.: The Court upheld a school resource officer’s warrantless post-arrest search of a high school student’s backpack on school grounds. The Court found that the school resource officer fit the definition of “school official” conducting a school search and therefore the officer needed only reasonable grounds to search the backpack rather than probable cause. The Court held that under that standard, there was sufficient grounds for the search where the search, which revealed an air pistol, was conducted after the officer saw the student holding suspected marijuana. http://www.courts.wa.gov/opinions/pdf/64699-1.pub.doc.pdf
Division Two Court of Appeals
State v. Damiani: The Court entered an order publishing this February 1, 2011 opinion in which it held that the sentencing court erred in including in a judgment on a domestic violence matter a provision allowing Mr. Damiani to possess a firearm in a military formation or in combat. The Court held that the superior court does not have discretion in sentencing when a firearm restriction is statutorily mandated and the legislature included no discretion to waive or limit the firearm restriction, and ordered the provision stricken from the judgment and sentence. http://www.courts.wa.gov/opinions/pdf/39730-7.11.cor.doc.pdf
Division Three Court of Appeals
State v. Turnipseed: In this partially published opinion, the Court affirmed Mr. Turnipseed’s conviction for first degree manslaughter with a deadly weapon enhancement, finding that there was error in presentation of a partially inaudible videotaped testimony to the jury where the court lacked information on the substance of the omissions, but that the error was harmless. In the unpublished portion of the opinion, the Court found that the trial court properly gave a first aggressor instruction where Mr. Turnipseed had initially turned his car around to contact the victim to renew an exchange from the prior afternoon and then, although the victim had escalated the largely verbal dispute between the parties by pulling out a tire iron, he had, when threatened with Mr. Turnipseed's gun, dropped the iron, at which point Mr. Turnipseed continued to hold him at gunpoint to prevent him from leaving. Finally, the Court held that the error in the sentencing enhancement instruction established by Bashaw cannot be raised for the first time on appeal. http://www.courts.wa.gov/opinions/pdf/287556.opn.doc.pdf
In a concurrence, Judge Sweeney argued that the holding of the court with regard to the partially audible testimony admitted into evidence was probably correct, but that the issue was not one of constitutional magnitude, but rather was an evidentiary issue. http://www.courts.wa.gov/opinions/pdf/287556.con.doc.pdf
State v . Walters: The Court reversed Mr. Walters’ theft conviction for allegedly taking the keys belonging to a bar at which he was drinking. The Court declined to consider Mr. Walters’ argument that the seizure of the keys from his front pants pocket was illegal, as the issue was not raised at trial, and further declined to consider Mr. Walters’ argument that his counsel was ineffective for failing to raise that argument, finding that the record lacked a factual basis for determining the merits of the suppression argument, and finding that it was impossible to determine if that argument would have prevailed. However, the Court did reverse the theft conviction on the grounds that it was prejudicial error for the court to decline to give an intoxication instruction when there was evidence that Mr. Walters consumed at least nine drinks over the course of the evening and was affected thereby. http://www.courts.wa.gov/opinions/pdf/289915.opn.doc.pdf
In a dissent, Judge Sweeney argued that it was prejudicial error for the trial court to fail to give the intoxication instruction not just on the theft charge, but on the resisting arrest and assault charges against Mr. Walters as well. The dissent argued that the majority could not possible divine what a jury would have determined on those charges given the proper instruction. http://www.courts.wa.gov/opinions/pdf/289915.dis.doc.pdf
Federal Law
United States Supreme Court
United States v. Tinklenberg: Justice Breyer, joined by Justices Kennedy, Ginsburg, Alito, and Sotomayor, and Justices Roberts and Thomas as to parts I and III, found that “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” for purposes of the Speedy Trial Act of 1974 does not mean that there is a requirement that the filing of a pretrial motion actually cause, or is expected to cause, delay of a trial. Instead, the Court found, the clause stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. The Court reasoned that the language of the clause, taken together with the fact that all courts of appeal save the Sixth Circuit, from whence this appeal originated, have held thusly, as well as the fact that the Sixth Circuit’s interpretation is needlessly complicating and difficult to square if the “automatic application” rule of Henderson v. U.S., and the fact that the interpretation is supported by legislative history, mitigate in favor of the Court’s holding. However, the Court found that the Sixth Circuit nevertheless reached the proper conclusion, and upheld the dismissal of Mr. Tinklenberg’s case, finding that speedy trial had been violated prior to the first day of trial.
Justice Scalia, joined by Justices Roberts and Thomas filed an opinion concurring in the judgment of the Court that a pretrial motion need not actually postpone a trial, or create an expectation of postponement, in order for its pendency to be excluded under the Speedy Trial Act of 1974. However, the concurrence argued, the conclusion is “entirely clear from the text of the Speedy Trial Act,” and there is no need to look beyond the text. http://www.supremecourt.gov/opinions/10pdf/09-1498.pdf
Fowler v. United States: Mr. Fowler was convicted of violating a federal witness tampering statute making it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense.” The Eleventh Circuit upheld the conviction, finding that a showing of a possible or potential communication to federal authorities was sufficient. Writing for the Court, Justice Breyer, joined by Justices Roberts, Kennedy, Thomas, Sotomayor, and Kagan, held that in such circumstances, the government must establish that there was a “reasonable likelihood” that a relevant communication would have been made to a federal officer, not just any law enforcement officer or any other person. The Court reasoned that the language of the statute, given its ordinary meaning, supports a conclusion that, where a defendant kills another person with an intent to prevent communication with any law enforcement officer, that intent “includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer.” The Court explained that the Government need not show that the communication would have reached a federal officer beyond a reasonable doubt, or that it was more likely than not, but must show that it was more than a remote or hypothetical possibility. The Court then found that because this standard was not used as trial, the case should be remanded for a determination of whether, and how, the standard applies in this case.
In an opinion concurring in the judgment, Justice Scalia disagreed with the Court’s interpretation of the statute, arguing that instead the Government must prove that the defendant “intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer.” The concurrence posited that the Court’s “reasonable likelihood” standard “has no basis in the statutory text and will serve only to confuse judges and juries.” Justice Scalia agreed that the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, but argued that there was insufficient evidence to support Fowler’s conviction.
Justice Alito, joined by Justice Ginsburg, dissented, arguing that the Court “effectively amended” the statute at issue by adding an element that is not included in the text of the statute. The dissent argued that the Court’s new element “makes little sense and will create confusion for trial judges and juries.” Instead, the dissent argued, the Court should have found that the evidence in this case was sufficient to establish “all of the elements that Congress saw fit to include.” http://www.supremecourt.gov/opinions/10pdf/10-5443.pdf
McNeill v. United States: In a unanimous opinion written by Justice Thomas, the Court held that a federal sentencing court must determine whether an offense under state law is a serious drug offense for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA) by consulting the maximum term of imprisonment applicable to the offense at the time of conviction for that offense, rather than the maximum term of imprisonment at the time of the federal conviction. Under the ACCA, a “serious drug offense” is “an offense under State law . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law.” The District Court determined that Mr. McNeill qualified for the sentencing enhancement based on six prior North Carolina drug trafficking convictions which, at the time of Mr. McNeill’s conviction carried a ten-year maximum sentence. However, Mr. McNeill argued that he should not have been assessed the sentencing enhancement because the State later reduced the maximum sentence for those offenses to fewer than 10 years. The Court reasoned that its conclusion was mandated by the plain language of the statute, which focuses on convictions that have already occurred, and the sentence at the time of the state conviction. http://www.supremecourt.gov/opinions/10pdf/10-5258.pdf
Ashcroft v. Al-Kidd: In an opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Alito, the Court held that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had improper motive. Therefore, the court concluded, Attorney General Ashcroft had immunity from a suit for money damages. The Court went on to find that the warrant was valid and provided individualized suspicion for the arrest.
In a concurring opinion, Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor (as to Part I only) joined the opinion of the Court in full, but wrote separately to make two additional observations. First, the concurrence noted that the Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. Second, the concurrence observed that the fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case.
Justice Ginsburg, joined by Justices Breyer and Sotomayor also wrote separately, agreeing with the Court that no “clearly established law” renders Mr. Ashcroft answerable in damages for the abuse of authority charged in this case. However, the concurrence objected to the Court’s disposition of Mr. al-Kidd’s Fourth Amendment claim on the merits, agreeing with Justice Sotomayor that the claim “involves novel and trying questions that will have no effect on the outcome of this case,” and that a merits disposition was neither necessary nor proper. The Concurrence argued that the validity of the material witness warrant could not be presumed, when the affidavit on which it was base fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” and does not disclose that al-Kidd had cooperated with FBI agents each of the several times they had asked to interview him. Further, the Concurrence observed, the Magistrate Judge was not told that Mr. al-Kidd’s parents, wife, and children were all citizens and residents of the United States, and misrepresented that Mr. al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.
In a separate concurrence, Justice Sotomayor, joined by Justices Ginsburg and Breyer, concurred in the Court’s judgment, agreeing with the majority’s conclusion that Mr. Ashcroft did not violate clearly established law. However, the concurrence argued that the majority’s opinion additionally and unnecessarily resolved a difficult and novel question of constitutional interpretation that will have no effect on the outcome of the case. The Concurrence argued that whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is a closer question than the majority’s opinion suggests. The Concurrence argued that the court had not yet considered whether an official’s subjective intent is relevant for purposes of the Fourth Amendment in the context of a prolonged detention of an individual without probable cause to believe he had committed any criminal offense, and that the Court need not and should not resolve that question in this case. http://www.supremecourt.gov/opinions/10pdf/10-98.pdf
Ninth Circuit Court of Appeals
United States v. Ellis: The Court affirmed Mr. Ellis’ sentence for seven counts of bank robbery, finding that the government did not breach the plea agreement, as Mr. Ellis contended, and that the sentence imposed by the District Court reasonable and any error in the sentence was harmless. The Court reasoned that the moderately above-Guidelines sentence imposed in this case for a defendant who committed seven bank robberies, after serving prison time for rape and armed robbery, was reasonable under the broad discretion afforded the district court. The Court further concluded that the district court’s characterization of Mr. Ellis’ seven armed bank robberies as “serious [ ]” offenses that traumatized their victims and its emphasis on the need to provide “just punishment,” to deter criminal conduct generally, and to “protect [ ] the public from further crimes of this individual” reflected a “rational and meaningful consideration of the factors enumerated in the sentencing guidelines. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-50652.pdf
Haney v. Adams: The Court held that a petition may not raise a Batson claim in his habeas petition if the petitioner failed to object to the prosecution’s use of peremptory challenges at trial. The Court affirmed the judgment of the district court denying this petitioner’s petition for habeas corpus. In its opinion, the court cited procedural concerns, as well as the opinion that it would be “unwise to allow defendants ‘to manipulate the [trial] system to the extreme prejudice of the prosecution’ by allowing post-conviction Batson claims. The Court reasoned that a defendant would be incentivized to allow the trial to proceed with the selected jury and then if convicted raise a Batson claim on appeal “long after the prosecutor may have forgotten the reasons for his challenges.” http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-16148.pdf
Emery v. Clark: The Court affirmed the denial of Mr. Emery’s habeas petition on robbery and murder convictions with gang enhancements, finding there was sufficient evidence to support the special circumstances finding and the gang enhancements. The Court cited testimony of the prosecution’s gang expert that the shooting was committed over a simple deal that had occurred with one of Mr. Emery’s friends, leading the expert to conclude that the act “shows that he had to go and do something worse than just beating him, . . . because [the victim] disrespected . . . his gang by messing with one of his friends . . . .” The expert testified that the use of lethal force over a small fight would help Mr. Emery retain respect as a hard core gang member and would raise his status within the gangs. The court further found that the California Supreme Court reasonably applied federal law in concluding that the evidence presented at trial was sufficient
to support the jury’s finding that Emery committed the attempted robbery and murder of Henry Chow “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as there was sufficient evidence for a rational trier of fact to find that Mr. Emery acted with the “specific intent to promote, further, or assist in” some type of “criminal conduct by gang members,” which may include the crimes of conviction. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/27/08-55249.pdf
United States v. Baptist: The Court affirmed Mr. Baptist’s statutorily mandated sixty-month minimum sentence following his guilty plea to conspiracy to possess crack cocaine with intent to distribute, and distribution of at fourteen grams of crack cocaine. The Court, while sympathizing with Mr. Baptist and clearly abhorring the outcome to which they were constrained, nevertheless declined to apply the Fair Sentencing Act retroactively, which would eliminate the mandatory minimum sentence implied in this case due to the clear sentencing disparity for crack over other drugs. The Court reasoned that there was no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment, and therefore the Court was prohibited from a retroactive application of the Act. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/09-50315.pdf
United States v. Buckles: The Court held that Mr. Buckles’ 28 U.S.C. § 2255 motion was untimely, finding that the Ninth Circuit’s order recalling the mandate so that the Court could consider Mr. Buckles’ motion for appointment of certiorari counsel did not restart the clock for the 90-day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. However, the Court remanded for further proceedings to determine whether Mr. Buckles did in fact receive misinformation from someone in the Ninth Circuit Clerk’s office regarding the time limits for filing, which may entitle Mr. Buckles to equitable tolling. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/08-36031.pdf
United States v. Rodriguez-Castro: The Court affirmed Mr. Rodriguez-Castro’s 57-month sentence, finding that the district court did not abuse its discretion when it declined to decrease the base offender level as recommended by the plea agreement between Mr. Rodriguez-Castro and the government. The Court reasoned that the district court considered Mr. Rodriguez-Castro’s work history, the lack of a criminal record in Mexico, his role as a “conscientious father,” and the need to avoid unwarranted sentence disparities, but was also cognizant of the need to deter the importation of huge amounts of cocaine, and assessed a proper sentence in this case after finding that Mr. Rodriguez-Castro failed to demonstrate that he was a minor participant in the offense.
In a concurrence, Judge Silverman, joined by Judge Tallman, defendant the district court’s decision in this case, arguing that the district judge is obligated to accurately calculate the sentencing guidelines no matter what the parties would like it to be. The Concurrence agreed with the majority that the District Court was well within its discretion in the sentence in this case.
http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/10-50273.pdf
Sessoms v. Runnels: The Court affirmed the denial of Mr. Sessoms’ habeas corpus petition challenging his California felony murder conviction. The Court held that Mr. Sessoms was unable to show that “the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Specifically, the Court held that there was insufficient evidence that Mr. Sessoms had unequivocally asserted his right to counsel when he asked Sacramento homicide detectives whether he had a right to an attorney and subsequently told those detectives that his father had asked him to inquire about an attorney, and there was no obligation for the detectives to ask him about any assertion of rights prior to proceeding with an interrogation. Finally, the Court held that there was insufficient evidence that detectives violated Mr. Sessoms’ right to remain silent when they interviewed him without objection five days after he invoked his right to remain silent to different officers from a different police department after he was arrested.
In a strongly-worded dissent, Judge Fletcher argued that while a federal court review of a state petition for writ of habeas corpus is significantly limited by AEDPA, such review “is not toothless,” and that when the government “take[s] a butcher knife to Miranda . . . a federal court can’t sit idly by.” The dissent observed that after 19-year-old Tio Dinero Sessoms turned himself in at the police station, he asked detectives for an attorney, first asking, “There wouldn’t be any possible way that I could have a — a lawyer present while we do this?” As the detective paused, Mr. Sessoms explained that his father had told him to ask the police to give him a lawyer, and expressed his concerns that his words might be misrepresented if he did not have an attorney present. Detectives did not call counsel, but dissuaded Mr. Sessoms from exercising that right, telling him that counsel was unnecessary because the detective was an “upfront and honest” guy who would not try to play “switch games,” and because the conversation would be recorded. Once recording, the detective informed Mr. Sessoms that two other suspects had “waived [their] rights” and given statements incriminating Mr. Sessoms, but that he understood that there are “two sides to every story.” The detective advised that a lawyer would probably prevent Mr. Sessoms from making a statement and being able to tell the police his “version of it.” The detective then refused Mr. Sessoms’ request to fall his father before speaking, telling Mr. Sessoms he was an adult. Only then, the dissent noted, did the detective read Mr. Sessoms his Miranda rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/03/08-17790.pdf
Washington State Law
Division One Court of Appeals
State v. J. M.: The Court upheld a school resource officer’s warrantless post-arrest search of a high school student’s backpack on school grounds. The Court found that the school resource officer fit the definition of “school official” conducting a school search and therefore the officer needed only reasonable grounds to search the backpack rather than probable cause. The Court held that under that standard, there was sufficient grounds for the search where the search, which revealed an air pistol, was conducted after the officer saw the student holding suspected marijuana. http://www.courts.wa.gov/opinions/pdf/64699-1.pub.doc.pdf
Division Two Court of Appeals
State v. Damiani: The Court entered an order publishing this February 1, 2011 opinion in which it held that the sentencing court erred in including in a judgment on a domestic violence matter a provision allowing Mr. Damiani to possess a firearm in a military formation or in combat. The Court held that the superior court does not have discretion in sentencing when a firearm restriction is statutorily mandated and the legislature included no discretion to waive or limit the firearm restriction, and ordered the provision stricken from the judgment and sentence. http://www.courts.wa.gov/opinions/pdf/39730-7.11.cor.doc.pdf
Division Three Court of Appeals
State v. Turnipseed: In this partially published opinion, the Court affirmed Mr. Turnipseed’s conviction for first degree manslaughter with a deadly weapon enhancement, finding that there was error in presentation of a partially inaudible videotaped testimony to the jury where the court lacked information on the substance of the omissions, but that the error was harmless. In the unpublished portion of the opinion, the Court found that the trial court properly gave a first aggressor instruction where Mr. Turnipseed had initially turned his car around to contact the victim to renew an exchange from the prior afternoon and then, although the victim had escalated the largely verbal dispute between the parties by pulling out a tire iron, he had, when threatened with Mr. Turnipseed's gun, dropped the iron, at which point Mr. Turnipseed continued to hold him at gunpoint to prevent him from leaving. Finally, the Court held that the error in the sentencing enhancement instruction established by Bashaw cannot be raised for the first time on appeal. http://www.courts.wa.gov/opinions/pdf/287556.opn.doc.pdf
In a concurrence, Judge Sweeney argued that the holding of the court with regard to the partially audible testimony admitted into evidence was probably correct, but that the issue was not one of constitutional magnitude, but rather was an evidentiary issue. http://www.courts.wa.gov/opinions/pdf/287556.con.doc.pdf
State v . Walters: The Court reversed Mr. Walters’ theft conviction for allegedly taking the keys belonging to a bar at which he was drinking. The Court declined to consider Mr. Walters’ argument that the seizure of the keys from his front pants pocket was illegal, as the issue was not raised at trial, and further declined to consider Mr. Walters’ argument that his counsel was ineffective for failing to raise that argument, finding that the record lacked a factual basis for determining the merits of the suppression argument, and finding that it was impossible to determine if that argument would have prevailed. However, the Court did reverse the theft conviction on the grounds that it was prejudicial error for the court to decline to give an intoxication instruction when there was evidence that Mr. Walters consumed at least nine drinks over the course of the evening and was affected thereby. http://www.courts.wa.gov/opinions/pdf/289915.opn.doc.pdf
In a dissent, Judge Sweeney argued that it was prejudicial error for the trial court to fail to give the intoxication instruction not just on the theft charge, but on the resisting arrest and assault charges against Mr. Walters as well. The dissent argued that the majority could not possible divine what a jury would have determined on those charges given the proper instruction. http://www.courts.wa.gov/opinions/pdf/289915.dis.doc.pdf
Federal Law
United States Supreme Court
United States v. Tinklenberg: Justice Breyer, joined by Justices Kennedy, Ginsburg, Alito, and Sotomayor, and Justices Roberts and Thomas as to parts I and III, found that “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” for purposes of the Speedy Trial Act of 1974 does not mean that there is a requirement that the filing of a pretrial motion actually cause, or is expected to cause, delay of a trial. Instead, the Court found, the clause stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. The Court reasoned that the language of the clause, taken together with the fact that all courts of appeal save the Sixth Circuit, from whence this appeal originated, have held thusly, as well as the fact that the Sixth Circuit’s interpretation is needlessly complicating and difficult to square if the “automatic application” rule of Henderson v. U.S., and the fact that the interpretation is supported by legislative history, mitigate in favor of the Court’s holding. However, the Court found that the Sixth Circuit nevertheless reached the proper conclusion, and upheld the dismissal of Mr. Tinklenberg’s case, finding that speedy trial had been violated prior to the first day of trial.
Justice Scalia, joined by Justices Roberts and Thomas filed an opinion concurring in the judgment of the Court that a pretrial motion need not actually postpone a trial, or create an expectation of postponement, in order for its pendency to be excluded under the Speedy Trial Act of 1974. However, the concurrence argued, the conclusion is “entirely clear from the text of the Speedy Trial Act,” and there is no need to look beyond the text. http://www.supremecourt.gov/opinions/10pdf/09-1498.pdf
Fowler v. United States: Mr. Fowler was convicted of violating a federal witness tampering statute making it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense.” The Eleventh Circuit upheld the conviction, finding that a showing of a possible or potential communication to federal authorities was sufficient. Writing for the Court, Justice Breyer, joined by Justices Roberts, Kennedy, Thomas, Sotomayor, and Kagan, held that in such circumstances, the government must establish that there was a “reasonable likelihood” that a relevant communication would have been made to a federal officer, not just any law enforcement officer or any other person. The Court reasoned that the language of the statute, given its ordinary meaning, supports a conclusion that, where a defendant kills another person with an intent to prevent communication with any law enforcement officer, that intent “includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer.” The Court explained that the Government need not show that the communication would have reached a federal officer beyond a reasonable doubt, or that it was more likely than not, but must show that it was more than a remote or hypothetical possibility. The Court then found that because this standard was not used as trial, the case should be remanded for a determination of whether, and how, the standard applies in this case.
In an opinion concurring in the judgment, Justice Scalia disagreed with the Court’s interpretation of the statute, arguing that instead the Government must prove that the defendant “intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer.” The concurrence posited that the Court’s “reasonable likelihood” standard “has no basis in the statutory text and will serve only to confuse judges and juries.” Justice Scalia agreed that the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, but argued that there was insufficient evidence to support Fowler’s conviction.
Justice Alito, joined by Justice Ginsburg, dissented, arguing that the Court “effectively amended” the statute at issue by adding an element that is not included in the text of the statute. The dissent argued that the Court’s new element “makes little sense and will create confusion for trial judges and juries.” Instead, the dissent argued, the Court should have found that the evidence in this case was sufficient to establish “all of the elements that Congress saw fit to include.” http://www.supremecourt.gov/opinions/10pdf/10-5443.pdf
McNeill v. United States: In a unanimous opinion written by Justice Thomas, the Court held that a federal sentencing court must determine whether an offense under state law is a serious drug offense for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA) by consulting the maximum term of imprisonment applicable to the offense at the time of conviction for that offense, rather than the maximum term of imprisonment at the time of the federal conviction. Under the ACCA, a “serious drug offense” is “an offense under State law . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law.” The District Court determined that Mr. McNeill qualified for the sentencing enhancement based on six prior North Carolina drug trafficking convictions which, at the time of Mr. McNeill’s conviction carried a ten-year maximum sentence. However, Mr. McNeill argued that he should not have been assessed the sentencing enhancement because the State later reduced the maximum sentence for those offenses to fewer than 10 years. The Court reasoned that its conclusion was mandated by the plain language of the statute, which focuses on convictions that have already occurred, and the sentence at the time of the state conviction. http://www.supremecourt.gov/opinions/10pdf/10-5258.pdf
Ashcroft v. Al-Kidd: In an opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Alito, the Court held that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had improper motive. Therefore, the court concluded, Attorney General Ashcroft had immunity from a suit for money damages. The Court went on to find that the warrant was valid and provided individualized suspicion for the arrest.
In a concurring opinion, Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor (as to Part I only) joined the opinion of the Court in full, but wrote separately to make two additional observations. First, the concurrence noted that the Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. Second, the concurrence observed that the fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case.
Justice Ginsburg, joined by Justices Breyer and Sotomayor also wrote separately, agreeing with the Court that no “clearly established law” renders Mr. Ashcroft answerable in damages for the abuse of authority charged in this case. However, the concurrence objected to the Court’s disposition of Mr. al-Kidd’s Fourth Amendment claim on the merits, agreeing with Justice Sotomayor that the claim “involves novel and trying questions that will have no effect on the outcome of this case,” and that a merits disposition was neither necessary nor proper. The Concurrence argued that the validity of the material witness warrant could not be presumed, when the affidavit on which it was base fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” and does not disclose that al-Kidd had cooperated with FBI agents each of the several times they had asked to interview him. Further, the Concurrence observed, the Magistrate Judge was not told that Mr. al-Kidd’s parents, wife, and children were all citizens and residents of the United States, and misrepresented that Mr. al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.
In a separate concurrence, Justice Sotomayor, joined by Justices Ginsburg and Breyer, concurred in the Court’s judgment, agreeing with the majority’s conclusion that Mr. Ashcroft did not violate clearly established law. However, the concurrence argued that the majority’s opinion additionally and unnecessarily resolved a difficult and novel question of constitutional interpretation that will have no effect on the outcome of the case. The Concurrence argued that whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is a closer question than the majority’s opinion suggests. The Concurrence argued that the court had not yet considered whether an official’s subjective intent is relevant for purposes of the Fourth Amendment in the context of a prolonged detention of an individual without probable cause to believe he had committed any criminal offense, and that the Court need not and should not resolve that question in this case. http://www.supremecourt.gov/opinions/10pdf/10-98.pdf
Ninth Circuit Court of Appeals
United States v. Ellis: The Court affirmed Mr. Ellis’ sentence for seven counts of bank robbery, finding that the government did not breach the plea agreement, as Mr. Ellis contended, and that the sentence imposed by the District Court reasonable and any error in the sentence was harmless. The Court reasoned that the moderately above-Guidelines sentence imposed in this case for a defendant who committed seven bank robberies, after serving prison time for rape and armed robbery, was reasonable under the broad discretion afforded the district court. The Court further concluded that the district court’s characterization of Mr. Ellis’ seven armed bank robberies as “serious [ ]” offenses that traumatized their victims and its emphasis on the need to provide “just punishment,” to deter criminal conduct generally, and to “protect [ ] the public from further crimes of this individual” reflected a “rational and meaningful consideration of the factors enumerated in the sentencing guidelines. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-50652.pdf
Haney v. Adams: The Court held that a petition may not raise a Batson claim in his habeas petition if the petitioner failed to object to the prosecution’s use of peremptory challenges at trial. The Court affirmed the judgment of the district court denying this petitioner’s petition for habeas corpus. In its opinion, the court cited procedural concerns, as well as the opinion that it would be “unwise to allow defendants ‘to manipulate the [trial] system to the extreme prejudice of the prosecution’ by allowing post-conviction Batson claims. The Court reasoned that a defendant would be incentivized to allow the trial to proceed with the selected jury and then if convicted raise a Batson claim on appeal “long after the prosecutor may have forgotten the reasons for his challenges.” http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-16148.pdf
Emery v. Clark: The Court affirmed the denial of Mr. Emery’s habeas petition on robbery and murder convictions with gang enhancements, finding there was sufficient evidence to support the special circumstances finding and the gang enhancements. The Court cited testimony of the prosecution’s gang expert that the shooting was committed over a simple deal that had occurred with one of Mr. Emery’s friends, leading the expert to conclude that the act “shows that he had to go and do something worse than just beating him, . . . because [the victim] disrespected . . . his gang by messing with one of his friends . . . .” The expert testified that the use of lethal force over a small fight would help Mr. Emery retain respect as a hard core gang member and would raise his status within the gangs. The court further found that the California Supreme Court reasonably applied federal law in concluding that the evidence presented at trial was sufficient
to support the jury’s finding that Emery committed the attempted robbery and murder of Henry Chow “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as there was sufficient evidence for a rational trier of fact to find that Mr. Emery acted with the “specific intent to promote, further, or assist in” some type of “criminal conduct by gang members,” which may include the crimes of conviction. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/27/08-55249.pdf
United States v. Baptist: The Court affirmed Mr. Baptist’s statutorily mandated sixty-month minimum sentence following his guilty plea to conspiracy to possess crack cocaine with intent to distribute, and distribution of at fourteen grams of crack cocaine. The Court, while sympathizing with Mr. Baptist and clearly abhorring the outcome to which they were constrained, nevertheless declined to apply the Fair Sentencing Act retroactively, which would eliminate the mandatory minimum sentence implied in this case due to the clear sentencing disparity for crack over other drugs. The Court reasoned that there was no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment, and therefore the Court was prohibited from a retroactive application of the Act. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/09-50315.pdf
United States v. Buckles: The Court held that Mr. Buckles’ 28 U.S.C. § 2255 motion was untimely, finding that the Ninth Circuit’s order recalling the mandate so that the Court could consider Mr. Buckles’ motion for appointment of certiorari counsel did not restart the clock for the 90-day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. However, the Court remanded for further proceedings to determine whether Mr. Buckles did in fact receive misinformation from someone in the Ninth Circuit Clerk’s office regarding the time limits for filing, which may entitle Mr. Buckles to equitable tolling. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/08-36031.pdf
United States v. Rodriguez-Castro: The Court affirmed Mr. Rodriguez-Castro’s 57-month sentence, finding that the district court did not abuse its discretion when it declined to decrease the base offender level as recommended by the plea agreement between Mr. Rodriguez-Castro and the government. The Court reasoned that the district court considered Mr. Rodriguez-Castro’s work history, the lack of a criminal record in Mexico, his role as a “conscientious father,” and the need to avoid unwarranted sentence disparities, but was also cognizant of the need to deter the importation of huge amounts of cocaine, and assessed a proper sentence in this case after finding that Mr. Rodriguez-Castro failed to demonstrate that he was a minor participant in the offense.
In a concurrence, Judge Silverman, joined by Judge Tallman, defendant the district court’s decision in this case, arguing that the district judge is obligated to accurately calculate the sentencing guidelines no matter what the parties would like it to be. The Concurrence agreed with the majority that the District Court was well within its discretion in the sentence in this case.
http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/10-50273.pdf
Sessoms v. Runnels: The Court affirmed the denial of Mr. Sessoms’ habeas corpus petition challenging his California felony murder conviction. The Court held that Mr. Sessoms was unable to show that “the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Specifically, the Court held that there was insufficient evidence that Mr. Sessoms had unequivocally asserted his right to counsel when he asked Sacramento homicide detectives whether he had a right to an attorney and subsequently told those detectives that his father had asked him to inquire about an attorney, and there was no obligation for the detectives to ask him about any assertion of rights prior to proceeding with an interrogation. Finally, the Court held that there was insufficient evidence that detectives violated Mr. Sessoms’ right to remain silent when they interviewed him without objection five days after he invoked his right to remain silent to different officers from a different police department after he was arrested.
In a strongly-worded dissent, Judge Fletcher argued that while a federal court review of a state petition for writ of habeas corpus is significantly limited by AEDPA, such review “is not toothless,” and that when the government “take[s] a butcher knife to Miranda . . . a federal court can’t sit idly by.” The dissent observed that after 19-year-old Tio Dinero Sessoms turned himself in at the police station, he asked detectives for an attorney, first asking, “There wouldn’t be any possible way that I could have a — a lawyer present while we do this?” As the detective paused, Mr. Sessoms explained that his father had told him to ask the police to give him a lawyer, and expressed his concerns that his words might be misrepresented if he did not have an attorney present. Detectives did not call counsel, but dissuaded Mr. Sessoms from exercising that right, telling him that counsel was unnecessary because the detective was an “upfront and honest” guy who would not try to play “switch games,” and because the conversation would be recorded. Once recording, the detective informed Mr. Sessoms that two other suspects had “waived [their] rights” and given statements incriminating Mr. Sessoms, but that he understood that there are “two sides to every story.” The detective advised that a lawyer would probably prevent Mr. Sessoms from making a statement and being able to tell the police his “version of it.” The detective then refused Mr. Sessoms’ request to fall his father before speaking, telling Mr. Sessoms he was an adult. Only then, the dissent noted, did the detective read Mr. Sessoms his Miranda rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/03/08-17790.pdf
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