Thursday, October 28, 2010

Civil Commitment for Sex Offenders

Interesting, though old now, post on Sex Crimes blog regarding civil commitment.

It's from Aug. 30, 2010, and cites a New York Times series discussing the effectiveness (or lack thereof) of civil commitment.

It's definitely "take it with a grain of salt" stuff for various reasons, but it's interesting background material.

ACCA Footnote that Sheds New Light on Juvenile Adjudications

An interesting, unpublished decision came out on October 18, 2010, dealing with prior juvenile adjudications and the ACCA. In United States v. Laferriere, No. 09--1369 (6th Cir. Oct. 18, 2010), the panel of Judges Kennedy, Rogers, and Kethledge addressed the Shepard inquiry as it relates to juvenile adjudications.

The defendant challenged the district court's determination that he qualified for the ACCA sentencing enhancement and 15-year mandatory minimum. One of the prior offenses used to invoke the enhancement was a juvenile adjudication for "assault with intent to rob---armed." The Court rejected the defense's two main arguments, but it decided, on its own, to remand the case for a third, and interesting, reason. (The defense argued 1) that the order of juvenile disposition was ambiguous as to the adjudication, and 2) that the judicial determination that the defendant had been adjudicated of the offense violated Apprendi.)

The Court concluded that "[w]hile Laferriere's primary arguments on appeal lack merit, he is nonetheless entitled to resentencing because of a particular requirement of the ACCA. Laferriere's conviction of armed assault with intent to rob cannot be counted as a sentence-enhancement predicate offense under the ACCA because the evidence fails to establish that the conviction was for a crime that actually involved the use or carrying of a firearm, knife, or destructive device, as required for an act of juvenile delinquncy."

Juvenile adjudications must involve a firearm/knife/destructive device to count as violent felonies for ACCA purposes. Shepard governs to prove whether or not the offense did involve such a weapon.

Under Michigan law, one could be convicted of armed assault with intent to rob by using a toy gun, a finger, an object hidden in a bag, other objects to simulate a weapon, a bike chain, etc. In this case, there was "no indication on the order of disposition that Laferriere conceded possessing an actual firearm." The charge involving possession of a firearm had not been sustained. Because of the age of the adjudication, the plea transcript was not available to review. The Court stated that "[w]ithout proof that a firearm . . . was involved, this conviction is meaningless for ACCA purposes."

The Court found it could remand because the error was plain and the Court could raise the issue in the interest of justice, even though the issue had not been raised on appeal.

The interesting note comes in footnote 3. The charging petition for the offense mentioned "a 'sawed-off shotgun,' [but] the language of the charge ('an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, a sawed off shotgun') does not preclude the possibility of an article that merely looks like a shotgun." This note provides real food for thought about what the Shepard documents actually show!

Wednesday, October 27, 2010

CDAM Conference

For the Michigan attorneys out there....

Just a friendly reminder that the Criminal Defense Attorneys of Michigan (CDAM) Advanced Criminal Defense Practice Conference is November 11 to 13 in Traverse City. The entire conference should be quite informative. There is a federal practice session from 4:00 p.m. to 6:00 p.m. on Thursday, the 11th. Presenters (from the Federal Defenders' Offices in Detroit and Grand Rapids) will cover plea agreements, Supreme Court updates, Sixth Circuit updates, and guideline developments.

Hope to see you there!

Monday, October 25, 2010

Cert Grants and Issues to Preserve

Just a quick note on some issues to look for and recent grants of cert.

Sykes v. United States, 09--11311 (Sept. 28, 2010): Does fleeing police in a vehicle (under the Indiana fleeing-and-eluding statute) constitute a violent felony for ACCA purposes?

The Seventh Circuit held that fleeing police in a vehicle in violation of the Indiana statute was sufficiently similar to the ACCA's enumerated offenses to counts as a violent felony. United States v. Sykes, 598 F.3d 334 (7th Cir. 2010).

United States v. Tinklenberg, No. 09-1498 (Sept. 28, 2010): Is the time between the filing of a pretrial motion and its disposition automatically excluded from the deadline for starting trial under the Speedy Trial Act (18 U.S.C. § 3161(h)(1)(D)), or is it excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial?

The Sixth Circuit interpreted 18 U.S.C. § 3161(h)(1)(D) to mean time is excluded when pretrial motions are filed and pending if they could possibly cause any delay of trial. United States v. Tinklenberg, 579 F.3d 589 (6th Cir. 2009).

Mr. Tinklenberg is represented by this blog's own Kevin Schad, Appellate Division, Office of the Federal Defender for the Southern District of Ohio.

Friday, October 22, 2010

Michigan court decisions citing Rule 6.508 do not constitute a "reasoned" decision

In an en banc decision, 10a0333p.06 , the Court held that when Michigan courts issue a decision citing to their Rule 6.508(D), this does not constitute a reasoned decision to uphold a procedural bar to habeas relief. The court reviewed the way that Michigan courts utilized the rule, and found ample precedent that such summary orders were used both for decisions on the merits, as well as procedural decisions. The Court found "Michigan’s primary argument that orders citing Rule 6.508(D) can only refer to procedural default is untenable in light of Jackson and the procedural history of cases like Allen and the present case." The Court further found "a duty to protect a state’s interest in its procedural rules is only applicable once we determine that the state has decided a given case on a procedural basis."

Further, the Court found that, once the State had lost this procedural issue, it had failed to preserve a challenge to the district court's holding regarding ineffective assistance on the merits. As such, the Court granted habeas relief.

Thursday, October 21, 2010

Social Media

Social media is becoming more and more of an issue for us and our clients. There are those advocating use of it for sentencing purposes, but in many ways, it seems that social media is more likely to hurt our clients than help. It seems prudent to advise clients not to blog or post anything on-line. Experience and common sense point to mostly negative consequences when clients post things on-line. And there are numerous examples of the government using this media to our clients' disadvantage.

Just something to think about and talk about with clients.

Thursday, October 14, 2010

Suppression Decision Worth a Read---Evidence Suppressed

United States v. Domenech, Nos. 08--1220 & 1221 (6th Cir. Oct. 7, 2010) (published). Judges Cook and Griffin in majority. Judge Norris dissented.

The defendants, two brothers, appealed their convictions for multiple firearm and drug offenses. Court found the brothers' legitimate expectation of privacy entitled them to suppression of certain inculpating evidence and reversed the trial court's denial of the defendant's motion to suppress.
* Man calling himself simply "Rogelio" rented two rooms at motel.
* Officers noted "suspicious activity" in one of the rooms and approached it.
* Two officers knocked on door while another went behind the building and stationed himself behind the frosted bathroom window of the motel room in question.
* Officer by bathroom window saw the lights go on and a figure enter the bathroom and lean over. The frosting on the window prevented the officer from seeing the person or any fixtures in the room.
* Expecting the figure to be disposing of evidence, the officer opened the bathroom window and swung his flashlight at one of the defendants.
* Commotion prompted the officers at the room's front door to burst into the room.
* Officers found the defendants, two women, drugs, guns, and counterfeit money.

State Proceedings:
* State court suppressed the evidence.
* Federal charges then brought.
Federal Suppression Motion:
* Defendants jointly moved to suppress the evidence.
* At hearing, government focused on the defendants' expectation of privacy.
* District court denied motion to suppress, finding the brothers lacked an expectation of privacy in the motel room, as they failed to show that they were the registrants or that they were sharing the room with the registrant.
* Defendants went to trial. At trial, one of the women testified that one of the brothers paid for the rooms and had directed Rogelio to rent the rooms for the group. The brothers were in a state of undress at the time of the officers' entry, had keys to the rooms, and had luggage in the rooms.

Appellate Opinion:
* Government conceded that the defendants had a subjective expectation of privacy in the room, but argued that the expectation was not objectively reasonable because of the criminal activity conducted in the rooms, the use of an agent to rent the rooms, and the agent's use of an alias.
* Court rejected idea that criminality undermines privacy expectations.
* Use of agent to rent rooms did not defeat a legally cognizable expectation of privacy.
* Use of alias by agent did not defeat reasonable expectation of privacy.
* "The Domenech brothers demonstrated lawful control/possession with evidence that they procured the room for their own use through their agent, paid for the room, possessed the key to the room, and occupied it both physically and with belongings."
* Use of an invalid motel registration did not defeat the reasonable expectation of privacy. "Because the Domenech brothers exercised control over Room 22 with this de facto permission of the motel, their lawful possession/control legitimizes their expectation of privacy, even if diminished by their agent’s use of an alias."
* The one brother had a reasonable expectation of privacy in the other brother's room b/c the first brother paid for the room, had personal belongings in the room, and held a key to the room.
* Exigent circumstances did not justify the search. Officers must have reasonably believed that the room's occupants were likely to destroy evidence.
* "Because the trooper could not see through the frosted window, the district court correctly held that he lacked probable cause to believe that the defendant would destroy evidence of a drug crime. Without probable cause, the officers cannot rely on exigent circumstances to justify this warrantless search."

* "This is not a case where appellants, acting on their own behalf used an alias to register as hotel guests. Instead, the appellants instructed a third party to rent a motel room under an assumed name (purportedly for his own use) where they could conduct illegal activity. While defendants had a subjective expectation of privacy, I am unconvinced that they have met their burden to establish that society would recognize that their expectation as legitimate when viewed 'in light of all of the surrounding circumstances.'"

Yikes! Extremely Sad Story of "Justice"

Wilson v. Rees, No. 09--6306 (6th Cir. Oct. 14, 2010). Petition for rehearing en banc denied, but Judge Martin offers a chilling dissent. He writes "to highlight this particularly ugly example of why 'the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.'"

This case, explains Judge Martin, involved a scandal that "is an embarrassment to all segments of the judiciary, from the judge who violated the Code of Judicial Conduct by having a sexual relationship with a defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex." Judge Martin goes on, "When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying."

Judge Martin recounts how "the defense in this case began with a handwritten note begging for volunteers, and ended with Wilson clumsily attempting to defend himself because he lacked competent counsel." Judge Marin reflects on Gideon v. Wainwright and its admonition:

From the very beginning, our state and national constitutions and laws have laid great emphasis

on procedural and substantive safeguards designed to assure fair trials before impartial tribunals

in which every defendant stands equal before the law. This noble ideal cannot be realized if the

poor man charged with crime has to face his accusers without a lawyer to assist him.

Judge Martin finds that "[n]early half a century after Gideon, its promise remains unfulfilled. Capital defendants like Wilson are routinely appointed counsel without the experience, skill, or commitment to adequately represent them. Much of the arbitrary and discriminatory nature of our current death penalty stems from the fact that quality of representation is the single greatest factor in determining when it is applied."

Judge Martin closes, "When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death."

Tuesday, October 05, 2010

When does an informant become an agent?

Today, the Court issued a very helpful opinion in the case of Ayers v. Hudson. 10a0324p.06 The defendant in Ayers was charged with murder, and detained prior to trial. As so happens with many cases, he allegedly confessed to another inmate, who promptly cooperated with authorities against the defendant. Sound familiar? The twist in this case, however, was that after the inmate cooperated with authorities, he went back to the defendant, and obtained additional information. This additional information was used against him at trial, despite the defendant's claim that it was obtained in violation of his right to counsel.

The Court granted habeas relief, finding that the inmate's discussions with the defendant, after initial contact with investigators, violated the defendant's right to counsel. The Court determined that investigators armed the inmate with information, and that the inmate elicited, during a second interview with the defendant, information investigators were looking for to incriminate the defendant. The Court noted "Here, the 'combination of circumstances is sufficient to support the . . . determination' that the State intentionally created a situation likely to violate Ayers’ Sixth Amendment rights when it returned Hutchinson to Ayers’ jail pod and he thereafter deliberately elicited statements from Ayers regarding the murder weapon and the amount of money allegedly taken from Brown’s apartment."
The Court further held that whether or not investigators gave specific instruction to an inmate to elicit information was not determinative of this issue. The Court noted that "we hold that although direct written or oral instructions by the State to a jailhouse informant to obtain evidence from a defendant would be sufficient to demonstrate agency, it is not the only relevant factor. A court must also analyze the facts and circumstances of a particular case to determine whether there exists an express or implied agreement between the State and the informant at the time the elicitation took place that supports a finding of agency. To hold otherwise would
allow the State to accomplish 'with a wink and a nod' what it cannot do overtly
Kudos to the Cuyahoga County Public Defender's office on this significant win, and the precedent it creates!

Friday, October 01, 2010

New Crack Amendments DO NOT apply to pending cases

This may be old news to most of you at this point, but because it bears posting on this blog (and because I was out of town last week), here is the rundown on the Sixth Circuit's FSA decision.

In United States v. Carradine, 10a0305p.06 , issued on September 20, 2010, the Court determined that the Fair Sentencing Act of 2010, which was enacted on August 3, 2010 lowering crack cocaine mandatory penalties, only applied to those defendants whose conduct occurred after the date of enactment. The Court, relying chiefly on 1 U.S.C. 109, found "The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question. We affirm the district court’s imposition of the 60-month mandatory minimum sentence."

The silver lining, if any, in this decision is that the Court did admit that the statute was amended, and not repealed. The Federal Public Defenders office for the Southern District of Ohio, which has this appeal in their appellate division, will be filing for en banc review.