Monday, November 29, 2010
Mr. Sady discusses the evolving area of technology and 4th Amendment jurisprudence. Electronic surveillance, cell-site data, e-mail monitoring, and other forms of technological intrusions into privacy are critical, cutting-edge topics we need to be aware of and ready to address.
Friday, November 19, 2010
Wednesday, November 17, 2010
On appeal, defendant argued that the district court abused its discretion in not allowing him to file a motion to suppress. The Court first provided a definition of "good cause", stating "
Good cause is a flexible standard heavily dependent on the facts of the particular case as found and weighed by the district court in its equitable discretion. At a minimum, it requires the party seeking a waiver to articulate some legitimate explanation for the failure to timely file."
The Court then found that "if the failure to timely file occurred as a result of a lawyer’s
conscious decision not to file a pretrial motion before the deadline, the party seeking a
waiver will not be able to establish good cause." The Court found that under the facts of the case, counsel's decision not to timely preserve a suppression issue was on the defense, and could not provide "good cause" for an untimely motion.
The moral of the story? Make sure you get an extension on the motions deadline, or file the motion to preserve the claim!
Monday, November 15, 2010
Still reviewing opinion, but here's what I understand has gone down in Abbott and Gould regarding the “except” clause of 18 U.S.C. § 924(c).
Unanimous decision (Justice Kagan did not participate). Docket No. 09--479 (Abbott was consolidated with Gould). A defendant subject to a mandatory, consecutive sentence under 924(c) is not spared from that sentence by virtue of receiving a higher mandatory minimum for a different count of conviction.
Abbott was convicted by jury on a 924(c) count and three other counts, namely two predicate drug-trafficking counts and being a felon in possession of a firearm. Under the ACCA, he was subject to a 15-year mandatory minimum sentence for the felon-in-possession conviction. Court sentenced him to 20 years total, stacking the 15-year ACCA mandatory minimum with the 924(c) 5-year mandatory sentence.
Gould pleaded guilty to one 924(c) offense and to conspiracy to possess with intent to distribute cocaine base (10-year mandatory minimum sentence). District court sentenced him to 137 months on the drug count and added the 924(c) 5-year mandatory sentence to that term (for a total of 197 months).
Abbott and Gould argued that the additional 5-year mandatory sentence in 924(c) should not apply to them because of the statute's direction that the 5-year mandatory sentence should be imposed as a consecutive sentence "except" to the extent a greater mandatory minimum sentence is otherwise applicable under any other provision of law.
Supreme Court disagreed, concluding "except" clause applied only to 924(c) and (per a footnote without citation to any provisions other than 18 U.S.C. 3559(c)) that it applies to other provisions imposing greater mandatory minimums for offenses that embody all of the elements of a 924(c) offense. Court reasoned that the "except" clause, which was added in 1998, was part of a bill to throttle criminal use of guns. Bill’s primary objective was expansion of 924(c)'s coverage to reach firearm possession. Court reasoned that the interpretations of the clause offered by Abbott and Gould would produce sentencing anomalies.
Abbott and Gould argued that the then-mandatory Guidelines would have resolved any disparities. Court concluded it would not contradict that Abbott and Gould presented a rational, less harsh, mode of sentencing. But the Court did not think it was the mode Congress had ordered. Court also pointed to the syntax and context as bases for its decision. Court rejected application of the Rule of Lenity.