Thursday, May 26, 2011
Tuesday, May 24, 2011
Friday, May 20, 2011
Double Jeopardy and Child Pornography
In United States v. Ehle, No. 09-5389 (6th Cir. 2011) (Rogers, J., Batchelder, C.J., & Keith, J.) the Court makes clear that possession of child pornography is a lesser-included offense of receiving child pornography and the defendant therefore could not be convicted of both.
Wearing Jail Clothes at Trial
United States v. Williams, No. 09-5256 (6th Cir. 2011) (Martin & Stranch, JJ.; Thapar, D.J. (EDKy.), concurring), explains that, while a defendant cannot be forced to appear at trial in prison clothing, the court is not required to furnish alternate clothing for the defendant. While we are certainly cognizant of the current federal budgetary difficulties, this ruling calls to mind Anatold France's observation that "the Law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." You have a constitutional right to not appear at your trial in jail clothes if you (or your appointed lawyer) can afford to buy something else for you to wear, otherwise you have to hope you look good in orange.
Presence at Sentencing
Also in Williams, the Court held that a defendant's constitutional right to be present at sentencing is not satisfied by the use of video conferencing. The quality of the video connection is irrelevant. Rule 43, F.R.Cr.P., requires that the defendant be present and says nothing about video conferencing. There was no proof in this case that the defendant was persistently unruly enough to justify his exclusion.
Waiver of Presentence Report
Finally, the hapless Mr. Williams helps us to understand that while a district court may, under Rule 32(c), F.R.Cr.P., sentence a defendant without a presentence report, a defendant may not waive preparation of a presentence report. That is, it is up to the district court, not the defendant, to decide whether or not sentencing can proceed without having a PSR done. Here the district court did not make the requisite finding that it could proceed to sentencing without a PSR and was, therefore, error.
Thursday, May 19, 2011
Wednesday, May 18, 2011
Police followed a suspected drug dealer to an apartment complex. Officers smelled marijuana outside an apartment door. They knocked loudly, announcing their presence. As soon as the officers began knocking, they heard noises inside the apartment. The officers thought the noises indicated that evidence was being destroyed. The officers announced they would enter the apartment. They then kicked in the door.
The Court found that the exigent-circumstances rule applies when officers do not create the exigency by engaging in conduct that violates the Fourth Amendment. Assuming exigency existed here, there was no evidence that the police violated the Fourth Amendment or threatened to do so.
8-to-1 opinion with Justice Ginsburg dissenting.
United States v. Garcia-Robles, No. 09–1980 (6th Cir. May 10, 2011) (to be published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.). Opinion by Judge Griffin.
In Garcia-Robles, the Court held "that upon general remand, when a sentence has been vacated on direct appeal, the defendant is entitled to a resentencing hearing where he may exercise the right to be present and allocute." Slip op. at 6. The Court emphasized the right to allocute upon remand. Id. at 7. The Court expressed the importance of the right to allocute: the right to allocute at resentencing, "despite a defendant’s previous opportunity to allocute, is essential." Id. at 8. A failure to afford a defendant this right is not necessarily harmless error. Id. at 11.
The Garcia-Robles court attempted to distinguish the decision in United States v. Mosley, No. 09--2359 (6th Cir. Mar. 29, 2011) (to be published) (discussed earlier in this blog), but the two cases seem to remain somewhat at odds. The Mosley panel included Judges Boggs, Moore, and Sutton. Judge Sutton, who was on the Garcia-Robles panel, wrote the Mosley opinion.
In Mosley, the panel took a narrower view of the right to allocution. While not addressing the government's contention that there is no right to allocution at a resentencing hearing for a limited remand, the court did decide that the defendant could not show prejudice.
Tuesday, May 03, 2011
Build and maintain a standard of review database
If you are going to write appeals, you're going to need to know the standard of review for your issues. I keep a folder of files labeled "sentencing," "motion to suppress," "motion to dismiss," etc. Each file contains a Wordperfect document where I have copied and pasted from 6th Circuit opinions what the standard of review is for that particular issue. When it comes time to write a brief on the issue, all I need to do is copy and paste into my brief.
Keep track of the Bostic objection
I'll probably post later in the week about the moving target that is the Bostic objection. What needs to be said, and when, seems to constantly change and depends greatly on what panel your case ends up in front of (or the mood of the panel that week). Sentencing appeal decisions are on the Sixth Circuit website almost every day. Checking in from time to time will help you make a better guess about what the proper incantations are.
Get a sense of what is going on in other districts and the general mood of the Court
In the Eastern District of Tennesee, many of our plea agreements contain appeal waivers that do not preserve any sentencing issues. Straight up, sentencing is left to the judge and there's no crying about it later. A recent unpublished opinion,on an appeal from the Eastern District of Michigan, gave me new ideas about language that might be put in those waivers. You can find it here (the waiver discussion starts on page three).
I also found it useful to read the Sixth Circuit's take on challenges to the Career Offender guideline. Starting at the last paragraph of page seven of this opinion, Judge Rogers gives a good overview of why such challenges will not have much traction with the Sixth Circuit. This is not to say the argument should not be made, but it gives you a better picture of what wall you are attempting to scale.
So, take some time to read unpublished opinions. Or at least come here to see if any are interesting enough for us appellate geeks to blog about.