U.S. Supreme Court Blog

Boyle v. United States: Not much structure needed for RICO

2009-06-08T15:19:00.000-07:00

The Supreme Court held that an association-in-fact enterprise under RICO, 18 U.S.C. § 1962(c), must have a "structure," but it need not be, as Boyle sought the jury to be instructed in his bank robberies case, "an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages." The "structure" contemplated by the RICO statute has three features: a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise’s purpose. The Court rejected Boyle’s argument the structure required additional features, such as a hierarchical structure or a chain of command. The Court also rejected the argument that its construction would create a merger of the RICO § 1962(c) crime with other federal offenses, pointing out that, in relation to conspiracy, it demands "much more" than proof of a "brief" agreement.

Bobby v. Bies: No Double Jeopardy bar on mental capacity in death cases

2009-06-01T15:17:00.000-07:00

A State court’s determination that a defendant’s mental retardation was a mitigating factor in the penalty phase of a capital case does not trigger Double Jeopardy issue preclusion, and foreclose the question whether, in the wake of the subsequently-decided decision in Atkins v. Virginia, the defendant is ineligible for the death penalty because he is mentally retarded.

Montejo v. Lousiana: Michigan v. Jackson overruled leaving an interrogation free-for-all

2009-05-26T15:13:00.000-07:00

An inculpatory statement given by a defendant to police after the court ordered the appointment of counsel may be introduced at trial as evidence against him. In so holding, the Court overruled Michigan v. Jackson, which presumed that a waiver of the right to counsel was invalid once counsel was appointed at arraignment, and did not require the defendant to invoke the right to counsel. The Court explained that the protections of Miranda, Edwards and Minnick v. Mississippi, sufficed to protect defendants against police badgering that induced them to waive the right to counsel. Under Miranda, the suspect must be advised of his right to counsel. Under Edwards, once a defendant has invoked the right to counsel, interrogation must stop. Under Minnick, no subsequent interrogation may take place until counsel is present. These protections meant that Michigan v. Jackson’s additional prophylactic layer would not be justified by the additional costs of invalidating confessions and letting criminals go free. The Court noted that, on remand, Montejo would be free to argue that he had made a clear assertion of the right to counsel prior to interrogation, and that the subsequent interrogation therefore violated Edwards v. Arizona. Montejo would also be free to argue that any waiver was involuntary because it was based on misrepresentations by police as to whether he was appointed a lawyer.

Abuelhawa v. United States: Drug Telephone Counts Punish Sales Not Purchases

2009-05-26T15:07:00.000-07:00

Whether the use of a telephone to buy drugs for personal use "facilitates" the commission of a drug "felony," in violation of 21 U.S.C. § 843(b), on the theory that the crime facilitated by the buyer is not his purchase of drugs for personal use (a misdemeanor), but is the seller’s distribution of the drugs to him (a felony). The Court answered in the negative, holding that using a telephone to make a misdemeanor drug purchase does not "facilitat[e]" felony drug distribution in violation of §843(b). Stopping with the plain meaning of "facilitate" here would ignore the rule that because statutes are not read as a collection of isolated phrases, "[a] word in a statute may or may not extend to the outer limits of its definitional possibilities." Dolan v. Postal Service, 546 U. S. 481. Here it does not.

Flores-Figueroa v. United States: "Knowingly" applies to all elements of aggravated identity theft law

2009-05-04T10:17:00.000-07:00

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), prescribes a mandatory two-year term of imprisonment for any person who, "during and in relation to" certain other specified crimes, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." Flores-Figueroa, a Mexican native, worked at a steel plant in East Moline, Ill. He was accused of using a phony Social Security card and a phony alien registration card. The two numbers on those cards had been assigned to someone else; he argued that the enhanced mandatory minimum sentence contained in § 1028A(a)(1) did not apply to him because he used the documents without knowing the numbers were actual numbers assigned to another person. He was convicted and sentenced to 75 months in prison, including a consecutive 24 month enhancement required 1029A(a)(1). The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information. In an opinion by Justice Breyer, the Supreme Court reversed, 9-0, holding that ordinary English grammar suggests that the term "knowingly" applies to all of the statutory elements. The court rejected the government’s focus on what the words necessarily imply (that is -- "John knowingly threw away the homework of his sister" does not necessarily imply that John knew the homework belonged to the sister) in favor of a test that looks at the words would ordinarily imply (that is -- that John knew whose homework it was). It then noted that in criminal law, courts typically apply the required mens rea to every element in the statute. The Court rejected the government’s legislative history argument without commenting on whether the statutory language was ambiguous. It rejected the government’s argument about the difficulty of proving such knowledge by reference to the "classic" identity theft case, which in the Court’s opinion involves using someone’s information to get access to their bank account or credit card. Finally, the Court found that "concerns about practical enforceability are insufficient to outweigh the clarity of the [statutory] text." Justice Scalia (joined by Justice Thomas) concurred in part and in the judgment, taking issue with the Court’s statement that courts typically apply the mens rea to all elements of a criminal statute. He pointed out that he hasn’t canvassed all the cases so didn’t know if that was true and that he was not prepared to say that it should be true. He also disagreed with the Court’s legislative history discussion: "[t]he statute’s text is clear, and I would reverse the judgment of the Court of Appeals on that ground alone." Justice Alito also concurred in part and in the judgment, because he felt that the Court’s point about ordinary English usage was overstated and that context was always the paramount indicator of meaning. He noted that the language used in criminal statutes is often formulated differently from ordinary speech. Justice Alito would start with a general presumption that the specified mens rea applies to all of the elements of the offense, but would also recognize that there are instances where context may rebut the presumption. He would not join any part of the opinion that "may be read to adopt an inflexible rule of construction that can rarely be overcome by contextual features pointing to a contrary meaning." The case resolves a circuit split, and overrules contrary precedent in the Fourth, Eighth, and Eleventh circuits. Its reasoning can also be used to renew challenges to other statutes in which courts have not applied the mens rea to all of the elements. Justice Alito’s concurrence offers the following examples: 18 U.S.C. § 2423(a)(knowingly transporting an individual under the age of 18 with the intent that the person engage in criminal sexual activity, where courts have not required proof that the defendant knew the person’s age); 21 U.S.C. § 861(a)(1)(knowingly enticing a person under the age of 18 to violate drug laws, where courts have not required proof that the defendant knew the person’s age); 8 U.S.C. § 1327 (knowingly assisting an alien who is ineligible to enter the US because s/he has been convicted of an aggravated felony, where courts do not require proof that the defendant knew the alien had been convicted of an aggravated felony). [Adapted from summary by Sara Noonan].

Dean v. United States: Accidental discharge sufficient for 924(c) sentencing enhancement

2009-04-29T15:23:00.000-07:00

Dean’s gun accidentally discharged during a bank robbery, but no one was harmed. Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was "discharged" during the robbery, he was sentenced pursuant to 924(c)(1)(A)(iii) to a 10-year mandatory minimum prison term. He appealed, contending that the discharge was accidental, and that 924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required. The Supreme Court affirmed, holding that § 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Kansas v. Ventris: Exclusionary rule unnecessary to protect against Sixth Amendment violation through jailhouse snitch

2009-04-29T12:23:00.001-07:00

Ventris was charged with murder and other crimes. The state planted another defendant in his cell as a "human listening device," even though Ventris’ right to counsel had attached. Predictably, Ventris made incriminating statements to his cellmate. The state later conceded that it violated Ventris’ Sixth Amendment right to counsel when it surreptitiously planted the snitch in Ventris’ jail cell. The state was prohibited from using the confession in its case-in-chief, but was allowed to use it to impeach Ventris’ own testimony at trial. Kansas held that such use was impermissible under the federal exclusionary rule and conceded that it had violated Ventris’ Sixth Amendment rights. The Supreme Court held 7-2 that this violation did not require exclusion of the informant’s testimony when offered for purposes of impeachment, reasoning that the Sixth Amendment violation occurred when the uncounseled interrogation was conducted, not at trial The question whether to exclude the statement at trial was a separate question, involving the "remedy" for the violation. The Court concluded that the interest in exclusion was outweighed by the need to prevent perjury and the integrity of the trial process. The Court found little appreciable police deterrence would occur as a result of exclusion because police, if they opted to obtain uncounseled statements, could not likely anticipate that the defendant would testify at trial, and would testify inconsistently with the prior uncounseled statement. Ominously, the Court refused to confirm Kansas’s concession of a Sixth Amendment violation, opening a wide door in future cases for the state or federal government to argue that no constitutional violation occurs where police obtain a voluntary statement by way of a jailhouse snitch.

Cone v. Bell: No defaults in habeas despite state court holdings to contrary

2009-04-28T13:40:00.000-07:00

After the State discredited Cone’s defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was convicted and sentenced to death. The Tennessee Supreme Court affirmed on direct appeal and the state courts denied postconviction relief. Later, in a second petition for state postconviction relief, Cone raised the claim that the State had violated Brady v. Maryland by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The state postconviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings. The state court of appeals affirmed. Cone filed a petition for a federal writ of habeas corpus, which was denied on two grounds, (1) The Brady claim was procedurally barred because the state courts’ disposition rested on adequate and independent state grounds that Cone had waived it by failing to present his claim in state court; (2) Even if he had not defaulted the claim, it would fail on its merits because none of the withheld evidence would have cast doubt on his guilt. The Sixth Circuit agreed with second point, but considered itself barred from reaching the claim’s merits because the state courts had ruled the claim previously determined or waived under state law. The Supreme Court reversed, holding that the state courts’ rejection of Cone’s Brady claim does not rest on a ground that bars federal review. Neither of the State’s asserted justifications for such a bar–that the claim was decided by the State Supreme Court on direct review or that Cone had waived it by never properly raising it in state court–provides an independent and adequate state ground for denying review of Cone’s federal claim. The state court’s denial of the Brady claim on the ground it had been previously determined in state court rested on a false premise: Cone had not presented the claim in earlier proceedings and, consequently, the state courts had not passed on it. The Sixth Circuit’s rejection of the claim as procedurally defaulted because it had been twice presented to the Tennessee courts was thus erroneous. The Supreme Court found unpersuasive the State’s alternative argument that federal review is barred because the Brady claim was properly dismissed by the state courts as waived. Those courts held only that the claim had been previously determined, and the Supreme Court would not second-guess their judgment. Because the claim was properly preserved and exhausted in state court, it is not defaulted. Although the Court did not believe that the withheld evidence sustained Cone’s insanity defense at the guilt phase, it did hold the lower federal courts failed to adequately consider whether the withheld documents were material to Cone’s sentence. Both the quantity and quality of the suppressed evidence lend support to Cone’s trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State’s contrary arguments were false and misleading. Because the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted.

Arizona v. Gant: Restricting searches of recently occupied vehicles

2009-04-21T13:12:00.000-07:00

Police officers went to a house suspected of being used for narcotics activity. One officer knocked on the door, and Rodney Gant answered the officer’s knock on the door. The officers asked to speak with the homeowner, but Gant told them that the owner was not at home and would not return until later that day. Gant gave the officers information about his identity. The officers left and ran a records check on Gant and discovered that his license was suspended and that he had an outstanding warrant for driving with a suspended license. The officers returned to the house that evening, finding two individuals outside the house. After investigation, they were arrested. While the officers were handcuffing the individuals and placing them in patrol cars, Gant drove up in his car and parked in the driveway. One officer summoned Gant as he got out of his car, and Gant walked approximately 8-12 feet toward the officer. The officer told Gant that he was under arrest for driving with a suspended license, handcuffed him, and placed him in a patrol car. Officers then searched the passenger compartment of Gant’s car and found a plastic baggie containing cocaine. Gant was charged with one count of possession of a narcotic drug for sale and one count of possession of drug paraphernalia. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. The state Supreme Court reversed, distinguishing New York v. Belton, 453 U. S. 454–which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant's lawful arrest–on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U.S. 752 , requires that a search incident to arrest be justified by either (a) the interest in officer safety or (b) the interest in preserving evidence, and the circumstances of Gant’s arrest implicated neither of those interests, the state Supreme Court found the search unreasonable. The U.S. Supreme Court affirmed, holding that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Warrantless searches "are per se unreasonable," "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U. S. 347 . The exception for a search incident to a lawful arrest applies only to "the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." Chimel, 395 U. S., at 763. The Court rejected a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton v. United States, 541 U. S. 615 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license–an offense for which police could not reasonably expect to find evidence in Gant’s car. The search in this case was therefore unreasonable. In the end the Court was unpersuaded by the State’s argument that an expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The Court found that the state seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with the Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103 , and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Finally the court held that stare decisis does not require adherence to a broad reading of Belton, because 28 years of experience has proved that the assumption underpinning that case is unfounded, authorizing "myriad unconstitutional searches."

Corley v. United States - Presentment Delay Still Subject to McNabb-Mallory, as Limited by 3501

2009-04-06T09:15:00.000-07:00

Title 18 U.S.C. § 3501 – read together with Fed. R. Crim. P. Rule 5(a), McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957) – requires that a confession taken more than six hours after arrest and before presentment be suppressed if there was unreasonable or unnecessary delay in bringing the defendant before the magistrate judge. Section 3501 modified McNabb-Mallory but did not supplant it. Johnnie Corley was convicted of bank robbery. The only evidence introduced at trial identifying Mr. Corley as a participant in the robbery consisted of two statements law enforcement obtained from him more than six hours after his arrest, and before he was brought to a federal magistrate. Mr. Corley did not see the magistrate until nearly 30 hours after his arrest. The sequence of events began when Corley was arrested at 8:00 a.m. on September 17, 2003, after federal and state law enforcement identified him as a suspect in the bank robbery. He was arrested on an outstanding bench warrant from state court. During the arrest, Corley resisted and had a physical altercation with an FBI agent. As a result, he was placed under federal arrest for assault on a federal officer and taken to a local police station for processing. At 11:45 a.m., he was taken from the police station to a hospital in Philadelphia, where he was admitted at 12:12 p.m. He received five sutures and was discharged at 3:20 p.m. Corley was next brought to the FBI office in Philadelphia, arriving at 3:30 p.m. Although the FBI offices are located in the same building as the federal magistrate judges’ courtrooms and chambers, he was not presented to a federal magistrate judge. Instead, he was kept in the FBI offices for interrogation regarding the bank robbery. By this point, 7 ½ hours had already elapsed since his arrest. The only apparent reason for the delay in presentment following the hospital discharge was the agents’ desire to question Corley. At 5:07 p.m. – still without being presented to a magistrate judge, and after being informed he was under arrest for assault on a federal officer and under investigation for bank robbery – Corley signed a waiver of rights form. He confessed shortly afterwards, but when asked to put his confession in writing, said that he was tired and asked to continue the following day. The interrogation resumed at 10:30 a.m. on September 18. Corley signed a written confession soon afterwards. He finally appeared before a federal magistrate judge to be informed of his rights at 1:30 p.m. – 29 ½ hours after his arrest. The district court judge found that both the oral and written statements were voluntary and denied a motion to suppress the statements. The district court also found that the oral statement was made within six hours of the arrest. On appeal, the majority decision of the Third Circuit did not dispute that both statements were outside the six-hour period and that the district court erred in this regard, but ruled that governing circuit precedent allowed admission of the statements because they were given voluntarily. The Supreme Court reversed and remanded: "The question here is whether Congress intended 18 U.S.C. § 3501 to discard, or merely to narrow, the rule in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), under which an arrested person’s confession is inadmissible if given after an unreasonable delay in bringing him before a judge. We hold that Congress meant to limit, not eliminate, McNabb-Mallory."

Harbison v. Bell - Right to Federally-Appointed Clemency Counsel

2009-04-01T09:12:00.000-07:00

(1) 18 U.S.C. § 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation, and (2) A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under § 3599 because § 2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits.

Rivera v. Illinois - Improperly Denied Peremptory Challenge Not Structural Error

2009-03-31T09:07:00.000-07:00

Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror.

Puckett v. United States - Breached Plea Agreement Subject to Harmless Error Review

2009-03-25T09:10:00.000-07:00

In exchange for Puckett’s guilty plea, the government agreed to request (1) a three-level acceptance-of-responsibility reduction in his offense level; and (2) a sentence at the low end of the applicable guideline range. The district court accepted the plea, but before Puckett was sentenced he assisted in another crime. As a result, the government opposed any reduction in his offense level, and the judge denied the three-level reduction. On appeal, Puckett raised for the first time the argument that by backing away from its reduction request, the government had broken the plea agreement. The Fifth Circuit found that Puckett had forfeited that claim by failing to raise it below; applied Fed. R. Crim. P. 52(b)’s plain-error standard for unpreserved claims of error; and held that, although the error had occurred and was obvious, Puckett had not satisfied the third prong of plain-error analysis in that he failed to demonstrate that his ultimate sentence was affected, especially since the judge had found that acceptance-of-responsibility reductions for defendants who continued to engage in criminal activity were so rare as "to be unknown." The Supreme Court affirmed, holding that Rule 52(b)’s plain-error test applies to a forfeited claim, like Puckett’s, that the government failed to meet its obligations under a plea agreement.

Vermont v. Brillon: Speedy trial delays caused by PDs are not charged to the State

2009-03-09T13:21:00.000-07:00

Absent a systemic breakdown in a state public defender system, delays caused by appointed counsel are not attributed to the state for purposes of Barker v. Wingo, 407 U.S. 514 (1972), speedy trial analysis.

United States v. Hayes - Domestic Battery Not an Element Under 922(g)(9)

2009-02-24T14:21:00.000-08:00

Following a conditional guilty plea, Hayes was convicted of possession of a firearm after having previously been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. 922(g)(9) and 924(a)(2). Section 922(g)(9) makes it a crime for any person convicted of a misdemeanor crime of domestic violence" to possess a firearm. He was sentenced to five years of probation, including six months of home detention with electronic monitoring. The court of appeals reversed, holding that the indictment must be dismissed because it failed to allege that Hayes’ state misdemeanor battery conviction was based on an offense that has as an element a domestic relationship between the offender and the victim. The Supreme Court reversed the court of appeals, holding that although domestic relationship is something that the government must prove beyond a reasonable doubt as part of its firearms possession prosecution under §922(g)(9), domestic relationship need not be a defining element of the predicate misdemeanor offense. Mr. Hayes’ predicate conviction was for battery on his common law wife. Although the domestic relationship was present, it was not an element of the battery offense under the applicable state law. The Supreme Court pointed out that the federal law was intended to close a loophole in the original act that allowed convicted domestic abusers to keep firearms since those convictions were typically misdemeanors.

Nelson v. United States: Supreme Court Really Meant it in Kimbrough

2009-01-26T20:35:00.000-08:00

The sentencing court clearly applied a presumption of reasonableness to petitioner's Guidelines range, and the circuit court affirmed. The Supreme Court, in a per curiam decision, reversed, re-emphasizing that its cases do not allow a sentencing court (as opposed to an appellate court) to presume that a sentence within the applicable Sentencing Guidelines range is reasonable. "The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson's Guidelines range. Under our recent precedents, that constitutes error." (Court’s emphasis).

Arizona v. Johnson: Search of Auto Passenger Just Like Terry

2009-01-26T20:30:00.000-08:00

In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense? The Supreme Court held that: (1) the first condition of Terry v. Ohio, i.e. a lawful investigatory stop, is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation; (2) police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity; and (3) to justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous

Waddington v. Sarausad: Ambiguous Jury Instruction Not Clearly Established Wrong

2009-01-21T20:39:00.000-08:00

Sarausad drove with fellow gang members to a high school, in order to retaliate against a rival gang. With knowledge that his front-seat passenger was armed and going to shoot, Sarausad drove toward a group of students standing outside the school. The passenger opened fire, killing one student and wounding another. A jury convicted Sarausad of second degree murder, second degree attempted murder, and second degree assault based on accomplice liability. The accomplice liability jury instructions mirrored a state statute and had been upheld by Washington state courts. A federal judge granted habeas relief and the Ninth Circuit affirmed, finding the instruction ambiguous under state law, because there is a reasonable probability that a jury would apply the instructions to relieve the prosecution of its obligation to prove all elements of the crime. The Supreme Court reversed, holding, that the state-court decision did not result in an "unreasonable application of ... clearly established Federal law," as is required for relief under sec.2254(d)(1).

Spears v. United States: Kimbrough Means What it Says

2009-01-21T20:33:00.000-08:00

Spears was found guilty of conspiracy to distribute at least 50 grams of cocaine base and at least 500 grams of powder cocaine. At sentencing, the district court determined that the drug quantities attributable to Spears yielded an offense level of 38, that his criminal history justified placing him in the Guidelines’ criminal history category IV, and that the resulting advisory Guidelines sentencing range was 324 to 405 months’ imprisonment. The District Court was of the view that the Guidelines’ 100:1 ratio between powder cocaine and crack cocaine quantities yielded an excessive sentence in light of the sentencing factors outlined in 18 U. S. C. §3553(a), so the District Court recalculated Spears’ offense level based on a 20:1 crack-to-powder ratio. That yielded an offense level of 34 and a sentencing range of 210 to 262 months’ imprisonment. The District Court sentenced Spears to 240 months in prison, the statutory mandatory minimum. The sentence was reversed on appeal pre-Kimbrough, then GVR’d by the Supreme Court post-Kimbrough. On remand, the Eighth Circuit again reversed Spears’ sentence and remanded for resentencing. concluding, again, that the district court "may not categorically reject the ratio set forth by the Guidelines,"and replace the 100:1 quantity ratio inherent in the advisory Guidelines range with a 20:1 quantity ratio. The Supreme Court reversed in a per curiam decision "[b]ecause the Eighth Circuit’s decision on remand conflicts with our decision in Kimbrough." The Court "clarif[ied] that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines."

Oregon v. Ice: Apprendi Does Not Govern Consecutive Sentences

2009-01-14T09:50:00.000-08:00

Ice was convicted by a jury of two counts of first-degree burglary and four counts of first-degree sexual abuse. The court sentenced him to a total of 340 months, with three of the sentences running consecutively, based on its finding that the two burglaries of which Ice was convicted constituted "separate incidents," and that Ice’s conduct during the burglaries (which formed the basis for four other convictions) demonstrated a "willingness to commit more than one offense" "caus[ing] or creat[ing] a risk of causing greater or qualitatively different loss, injury or harm to the victim." The Oregon Supreme Court reversed and remanded for resentencing, holding that the sentencing court–by imposing consecutive sentences based on its own findings and not based on jury findings–violated respondent’s rights under the Sixth Amendment, as construed in Apprendi and Blakely. The U.S. Supreme Court reversed, holding the Sixth Amendment’s jury trial right does not prohibit a judge from determining the predicate facts necessary to impose consecutive, rather than concurrent, sentences. Justice Ginsburg, writing for the five-Justice majority, held that "twin considerations–historical practice and respect for state sovereignty–counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes." Justice Ginsburg found that the decision of whether to impose consecutive or concurrent sentences has historically been the exclusive province of judges, and thus that permitting judges to find the facts necessary to that decision neither encroaches upon the jury’s historical role as fact finder nor threatens its place as a structural protection between the state and the accused. As for state sovereignty, Justice Ginsburg noted that Oregon’s attempt to "rein in the discretion judges possessed at common law to impose consecutive sentences at will" serves the policy interests in proportionality and guarding against disparities in sentence length. She also noted that extending Apprendi to this context would potentially affect judicial fact finding for other purposes (e.g., setting terms of supervised release, community confinement, fines or restitution, or ordering treatment), that it would be difficult for states to administer (i.e., may require bifurcated trials), and that there was no evidence that Oregon’s law reflected a "pernicious manipulation" of Apprendi’s protections. In a forceful dissent, Justice Scalia, joined by Chief Justice Roberts and Justices Souter and Thomas, argued that "Oregon’s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since." He accused the majority of setting up a "formalistic distinction" between "facts bearing on the number of years a defendant will serve for one count (subject to the rule of Apprendi) and facts bearing on how many years will be served in total (now not subject to Apprendi)," and correctly noted both that the difference between consecutive and concurrent sentences is often more important to a defendant than a finding of guilt on any single count, and that each of the majority’s arguments had been previously rejected by Apprendi, Blakely, and/or Booker.

Herring v. United States: No Exclusionary Rule for Negligent Police Error

2009-01-14T09:48:00.000-08:00

Officers in one jurisdiction checked with employees of a law enforcement agency in another jurisdiction and were told that there is an outstanding warrant for an individual. Acting in good faith on that information the officers arrest the person and find contraband. It turns out the warrant had been recalled. The erroneous information that led to the arrest and search is the result of a good faith mistake by an employee of the agency in the other jurisdiction. The Supreme Court held that the Fourth Amendment does not require suppression of evidence obtained pursuant to a search incident to arrest, despite the fact that the arrest itself violated the Fourth Amendment because it was based on negligent police error.

Jimenez v. Quarterman: Out-of-Time Appeal Tolls Habeas Time

2009-01-13T11:30:00.000-08:00

Where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not "final" for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking certiorari review of that appeal.

Chambers v. United States: Failure to Report to Jail is Not an ACCA Violent Felony

2009-01-13T11:26:00.000-08:00

In a 9-0 decision, the Supreme Court held that a failure to report to penal confinement does not qualify as a "violent felony" for purposes of triggering the mandatory 15-year sentence for felons unlawfully in possession of a firearm who have three prior convictions. Citing Begay v. U.S., the Court concluded that failure to report does not "involve conduct that presents a serous potential risk of physical injury to another" and therefore did not meet this part of the "violent felony" definition. The Court noted that the "inaction" involved in "failure to report" distinguished the crime from the "purposeful, violent," and ‘aggressive’ conduct" at issue in violent felonies. Further, the Court cited a recent Sentencing Commission’s Report which contained statistical data that indicated that failure to report does not involve a serious potential risk of physical injury.

Greenlaw v. United States - Appellate Court Can't Increase Sentence Sua Sponte

2008-06-24T11:12:00.000-07:00

Greenlaw filed a direct appeal of his sentence; the government did not appeal the district court’s failure to make two sentences under 18 U.S.C. § 924(c) – a 5-year sentence and a 25-year sentence – consecutive to each other and to other counts. The appellate court nevertheless remanded for imposition of the enhanced sentence, finding that the effect of the error was not "speculative." The Supreme Court reversed, in a 7-2 (actually, 6¾ - 2¼) decision written by Justice Ginsburg. The Court held that, absent a government appeal or cross-appeal, a court of appeals does not have the power to sua sponte raise a defendant’s sentence, even if it is to correct a plain error. Writing for the majority, Justice Ginsburg relied on "that unwritten but long-standing rule" that "an appellate court may not alter a judgment to benefit a nonappealing party," as well as the express limitations on government appeals in 18 U.S.C. § 3742(b). The majority opinion also rejected the arguments that either Fed. R. Crim. P. 52(b)’s plain error rule, 28 U.S.C. § 2806, or 18 U.S.C. § 3742 confer authority to correct a legal error absent a cross-appeal, particularly for "sentencing errors that the Government refrained from pursuing," and noted that the strict time limits on notices of appeal and cross-appeal would be undermined if an appeals court could modify the judgment in favor of a party who had filed no notice of appeal. The majority opinion recognizes two important protections for defendants who seek to appeal their sentences. First, it makes clear that its holding does not modify standard practice in "sentencing package cases," meaning cases involving multiple counts and a successful appeal of some but not all of the convictions. According to the Court, an appellate court remains free to vacate the entire sentence, and a district court remains free to impose the same or a higher sentence on the remaining counts on remand so long as the new sentence is not longer than the original sentence taken in the aggregate. This provides a crucial protection because, as the Court notes, although such a defendant "ultimately may gain nothing from his limited success on appeal, . . . he will also lose nothing, as he will serve no more time than the trial court originally ordered." Second, the majority rejects the argument that its holding will produce anomalous results by permitting the district court on remand to correct the same legal error that the court of appeals was powerless to correct: "The cross-appeal rule, we of course agree, does not confine the trial court. But default and forfeiture doctrines do. It would therefore be hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule." Justice Alito dissented, joined by Justice Stevens, while Justice Breyer concurred only in part IV of the majority opinion (and the result), but joined Justice Alito’s dissent to the remainder of the decision.

Rothgery v. Gillespie County, TX - Right to Counsel at First Appearance

2008-06-23T10:58:00.000-07:00

Rothgery was arrested without a warrant and booked into jail on suspicion he was a felon in possession of a gun. Apparently unknown to the arresting officer, there was no underlying felony because that earlier charge had been dismissed after the defendant completed a diversionary program. The arresting officer filed with the magistrate an affidavit supporting probable cause (based on his misinformation about the prior felony). Rothgery inquired of the magistrate about appointed counsel, and he was told that if he wanted counsel his bail and probable cause hearings would be delayed until counsel could be appointed; or, in the alternative, he could waive counsel for these hearings and the hearings would go forward. Given those options, Rothgery waived counsel temporarily. The magistrate found probable cause and held Rothgery. Later, he was released on bond. A grand jury indicted him for the felon-in-possession charge. Post-indictment, a lawyer was appointed, investigated the nonexistent prior conviction, and was able to have the erroneous charges dismissed. Rothgery filed a § 1983 action, alleging he was denied appointed counsel pre-indictment, but the Fifth Circuit held that he was not entitled to counsel at that stage because adversary criminal proceedings were not commenced by the officer’s filing of an affidavit of probable cause, especially in a proceeding at which no prosecutor was present. Earlier Supreme Court decisions held that the Sixth Amendment right to counsel attaches when "adversary judicial proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688 (1972) and when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt … that judicial proceedings ha[ve] been initiated." Brewer v. Williams, 430 U.S. 387, 399 (1977). Here, the Supreme court reversed, holding that the Sixth Amendment right to counsel attaches at the initial appearance before the magistrate judge where a subject learns the charges against him and is subject to a potential loss of liberty, even if the proceeding is so preliminary that the prosecutor is unaware of it and uninvolved in it. Writing for the majority, Justice Souter reasoned: "[U]nder the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused’s liberty to facilitate the prosecution. From that point on, the defendant is ‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal. By that point, it is too late to wonder whether he is ‘accused’ within the meaning of the Sixth Amendment, and it makes no practical sense to deny it." Chief Justice Roberts, and Justices Alito and Scalia concurred; Justice Thomas dissented.

Indiana v. Edwards - Right to Self-Represent Limited

2008-06-19T11:03:00.000-07:00

Ahmad Edwards was tried for attempted murder, battery with a deadly weapon, criminal recklessness and theft following a shooting incident outside a store where he had shop-lifted a pair of shoes. He sought to represent himself but the trial judge found him not competent to do so. Evidence showed he suffered from schizophrenia. He had earlier been declared incompetent, but was later found to have his competency restored following a stay at a state mental hospital. Although it appeared he was competent to stand trial, the trial judge did not believe he was competent to defend himself at trial. Appointed counsel was forced upon Edwards. The Indiana Supreme Court ruled he had a right to act as his own defense counsel, ordering a new trial under Faretta v. California (recognizing right of self-representation). Indiana argued that the states should be allowed to impose a higher standard for measuring competency to represent oneself at trial than the Supreme Court has specified for measuring competency to stand trial. Under U.S. Supreme Court precedent, in Dusky v. United States, the Court has held that the standard for competency to stand trial is whether the accused "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him." The question presented was whether states must apply the Dusky standard in evaluating competency to represent oneself, or could a state adopt a higher standard. In a 7-2 decision, the U.S. Supreme Court reversed, although it "declined" to overrule Faretta, and rejected a more specific standard that would "deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury." The majority decision, written by Justice Breyer, held that "the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Justices Scalia and Thomas dissented, arguing that "the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury—a specific right long understood as essential to a fair trial."

Irizarry v. United States: Rule 32(h) does not require notice of contemplated variance

2008-06-13T09:51:00.000-07:00

The Supreme Court held that Fed. R.Crim. P. 32(h), which requires a sentencing court to give the parties advance notice that it is contemplating a departure from the Guidelines, does not require the court to give notice of a contemplated variance from a recommended Guideline range.
The Court explained that Rule 32(h) was premised on protecting a defendant’s expectation that his sentence would be within the applicable Guideline range. This expectation did not survive Booker, and the parties therefore did not have the kind of "expectancy" that required notice. Further, the Rule itself referred to "departures" not "variances."
The Court added that district judges should consider granting a continuance of the sentencing when a party has a legitimate basis for claiming that it was illegitimately surprised by a contemplated variance.

Cueller v. United States: Insufficency of Money Laundering Evidence

2008-06-02T11:25:00.000-07:00

Cuellar was driving a Volkswagen Beetle south on State Highway 77 in Texas, approximately 100 miles from the Mexican border. A police officer stopped him due to his erratic driving. Upon confronting him, police observed odd and inconsistent behavior, including that Cueller crossed himself as police conducted their investigation. Searching the vehicle, police found a hidden compartment underneath the floorboard containing $81,000 wrapped in duct tape bundles inside plastic bags, and animal hair was spread in the rear of the vehicle to possibly cover the smell of marijuana. Cuellar was convicted at trial of international money laundering under § 1956(a)(2)(B)(i), which prohibits transportation of illicit funds. He was not charged with bulk cash smuggling. He was sentenced to 78 months imprisonment and three years supervised release, eighteen months more prison time than the maximum punishment available under the bulk cash smuggling statute. The Supreme Court reversed the money laundering conviction in a unanimous decision written by Justice Thomas, holding that the statute under which petitioner was convicted requires proof that the transportation was "designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control" of the funds. § 1956(a)(2)(B)(i). Although this element does not require proof that the defendant attempted to create the appearance of legitimate wealth, neither can it be satisfied solely by evidence that a defendant concealed the funds during their transport. In this case, the only evidence introduced to prove this element showed that petitioner engaged in extensive efforts to conceal the funds en route to Mexico, and thus his conviction cannot stand." Justice Alito, joined by the Chief Justice and Justice Kennedy, concurred, clarifying that the government could have proved that once the cash got to Mexico that had the effect of being concealed, but in this case the government failed to produce such evidence beyond a reasonable doubt.

United States v. Santos - Only Profits are Proceeds Under Money Laundering Statute

2008-06-02T11:21:00.000-07:00

Santos ran an illegal lottery, from which he paid runners a commission, salary to collectors, and winnings to bettors. He was convicted under the principal federal money laundering statute, 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h), which makes it a crime to engage in a financial transaction using the "proceeds" of certain specified unlawful activities with the intent to promote those activities or to conceal the proceeds. The Seventh Circuit affirmed the conviction in 2000, but the defendant later filed a 2255 petition, relying on an intervening Seventh Circuit decision that held the money laundering statute applies only to criminal profits, not criminal receipts. Applying the intervening decision here, the district court granted 2255 relief. The Seventh Circuit affirmed the 2255 order. In a fragmented 5-4 decision, the Supreme Court held that "proceeds" under the statute means the net receipts, not gross receipts, from the unlawful activities – only the profits, i.e., gross receipts less expenses. Otherwise, every criminal venture that has overhead would necessarily be subject to the heavier sentences allowed by convictions for money laundering. The principal author, Justice Scalia, held that the word "proceeds" lacks a clear definition, especially in light of the lack of legislative history here, so the rule of lenity requires it be interpreted in favor of the defendant: proceeds=profits, not gross receipts. This view garnered only plurality support, getting a majority only with Justice Stevens’ concurrence, which offered a different view on the rule of lenity: Under this statute the rule of lenity means proceeds=profits, but that is not true for all statutes. He would find differently if legislative history supports a different view for another federal law. Justice Scalia concludes that the narrow holding of the case is, therefore, "that ‘proceeds’ means ‘profits’ when there is no legislative history to the contrary. That is all that our judgment holds." He also pointed out that a majority does not join Justice Stevens’ piecemeal view of lenity, so the decision "does not hold that the outcome is different when contrary legislative history does exist." Chief Justice Roberts and Justices Breyer, Kennedy, and Alito dissented, with Justices Alito and Breyer writing dissents: Justice Alito rests on a "fair[] read[ing]" of the money laundering law and Justice Breyer adds that the Sentencing Commission can solve any unfairness arising from the ambiguity under its authority to avoid sentencing disparity.

United States v. Williams - Pandering and Solicitation of Child Pornography Law Constitutional

2008-05-19T10:11:00.000-07:00

Congress passed the 2003 "PROTECT Act" to try to shore up federal controls on child pornography after the Supreme Court struck down a 1996 federal law on the subject in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The new law, 18 U.S.C. § 2252A(a)(3)(B) criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. The Eleventh Circuit held that the new pandering provision is overbroad and vague. The Supreme Court reversed, holding that the provision does not violate the overbreadth proscription of the First Amendment, nor is it vague in violation of the Due Process Clause of the Fifth Amendment. Justice Scalia’s majority opinion rejected both facial unconstitutionality claims on broad grounds, permitting only "as applied" challenges if, and when, the proffered hypothetical constitutional difficulties arise. Justices Stevens and Breyer concurred, but would have rested the Court’s holding on two more traditional (and less broad grounds) grounds: (1) resort should be made to every reasonable construction of a statute to save it from unconstitutionality, and (2) to the extent the text of the statute is unclear, the duty to avoid an interpretation resulting in unconstitutionality requires the court to consider legislative history and the drafters’ intent. This approach, they conclude, also leads to upholding of this statute. Justices Souter and Ginsburg dissented, insisting that the statute is unconstitutional under the Court’s precedents, New York v. Ferber, 458 U.S. 747 (1982) and Free Speech Coalition.

United States v. Ressam - Explosives "in relation to " Any Crime OK

2008-05-19T10:07:00.000-07:00

Ressam was arrested in 1997 as part of the alleged Millennium bombing planned for Los Angeles International airport. He attempted to enter the United States by car ferry at Port Angeles, Washington. Hidden in the trunk of his rental car were explosives that he intended to detonate at the Los Angeles International Airport. After the ferry docked, he was questioned by a customs official, who instructed him to complete a customs declaration form, which he did, identifying himself as a Canadian citizen (he is Algerian) named Benni Noris (his name is Ahmed Ressam). He was then directed to a secondary inspection station, where another official performed a search of his car, finding explosives and related items in the car’s spare tire well. Ressam was subsequently convicted of a number of crimes, including the felony of making a false statement to a United States customs official in violation of 18 U. S. C. §1001 and carrying an explosive "during the commission of" that felony in violation of §844(h)(2)(imposing a 10-year sentencing enhancement). The Ninth Circuit reversed his conviction on the latter count because it read the word "during," as used in §844(h)(2), to include a requirement that the explosive be carried "in relation to" the underlying felony. The Supreme Court reversed, holding that Ressam was "carrying" those explosives "during" the commission of the false statement, finding that Congress "did not intend to require the Government to establish a relationship between the explosive carried and the underlying felony." Justice Stevens wrote for the majority, rejecting a dictionary definition of "during," using instead the "most natural reading" of the statute. He bolstered the holding with statutory analysis and legislative history. Justice Thomas concurred in part and concurred in the judgment, joined by Justice Scalia, agreeing with only the first part of Justice Stevens’ 3-part decision; their concurrence concludes, simply, that the plain language of the statute answers the question, without the need for any further statutory or historical analysis. Justice Breyer dissented, disagreeing with both the majority decision and the Ninth Circuit holding; his concern stems from the fact that under both approaches a person who legally possesses explosives can be convicted of 844(j) if he does so at the time of a wholly unrelated felony. To avoid this anomaly, he would require a "relevant relation[ship]" between the explosives possession and underlying felony.

United States v. Rodriguez - ACCA Predicates Computed on Enhanced Maximum Sentence

2008-05-19T10:04:00.000-07:00

The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e)(2)(A)(ii), imposes a mandatory minimum 15-year sentence for felons-in-possession with three qualifying prior offenses. Under ACCA, a state drug-trafficking conviction qualifies as "a serious drug offense" if "a maximum term of imprisonment of ten years or more is prescribed by law" for the "offense." The Ninth Circuit held that "the maximum term of imprisonment . . . prescribed by law" must be determined without taking recidivist enhancements into account. The Supreme Court reversed, holding that the "maximum term of imprisonment . . . prescribed by law" for the state drug convictions at issue includes state recidivist enhancements, which in this case was a ten-year maximum. Justice Alito wrote for the majority, concluding that its interpretation was consistent with how the "maximum" concept was customarily understood by participants in the criminal justice process. The Court rejected the argument that a prior record of convictions has no bearing on the seriousness of an offense, and that the "maximum" punishment for a prior conviction should be the punishment unenhanced to account for prior convictions. "When a defendant is given a higher sentence under a recidivism statute – or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant’s criminal history – 100% of the punishment is for the offense of conviction." Justice Souter dissented, joined by Justices Stevens and Ginsburg, concluding that the statute’s undisputed ambiguity should have been resolved under the rule of lenity, in the defendant’s favor.

Gonzalez v. United States - Jury Selection by Magistrate OK if Counsel Alone Waives Art. III Judge

2008-05-12T10:05:00.000-07:00

Gonzalez, a Mexican citizen who does not speak English, was represented by counsel at his federal drug-trafficking trial. After appearing before a United States district judge at several pretrial conferences, he was brought before a United States magistrate judge for jury selection. At a bench conference outside of his presence and before he had the assistance of an interpreter, defense counsel orally consented to the magistrate judge’s presiding over the jury selection process. Thereafter, the magistrate judge did not obtain the defendant's personal consent or even mention that his attorney had consented outside of his presence. No objection to this process was ever posited in the trial court. Must a federal criminal defendant explicitly and personally waive his right to have an Article III judge preside over voir dire? The Supreme Court held that such a personal and explicit waiver by the defendant is neither required by the Federal Magistrates Act, nor is it required by the Constitution. Justice Kennedy, writing for the 8-1 majority, held that express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, 28 U. S. C. §636(b)(3)( "A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."). Under Gomez v. United States, 490 U.S. 858, 870, 875–876 (1989) and Peretz v. United States, 501 U.S. 923, 933, 935–936 (1991), such "additional duties" include presiding at voir dire if the parties consent, but not if there is an objection. Although, the Court has indicated in prior cases that the waiver of certain trial rights requires the defendant’s own consent, see, e.g., New York v. Hill, 528 U. S. 110, 114–115 (2000), even in Hill, the Court held that an attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls." Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney’s own decision. To the extent that judges have formal and informal approaches to jury selection, these influencing factors are best known by and sorted through by counsel, who may tactically select a magistrate over the district judge. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense. The Court rejected Gonzalez’s contention that the decision to have a magistrate judge for voir dire is a fundamental choice, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. The majority noted that in this case there were not serious concerns about the Act’s constitutionality and the defendant conceded that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Caveat–The Court notes that its decision does not address two similar but different cases: (1) Whether waiver occurs if counsel consents, but the client makes a timely objection to override counsel’s waiver; (2) Whether waiver may be inferred by failure of a defendant or counsel to object. Justice Scalia concurred, but rejected Justice Kennedy’s tactical-decision vs. fundamental-right test. Instead, he would hold that all constitutional rights are waivable by counsel, except the right to counsel itself. Justice Thomas dissented; he would overrule Peretz and hold that delegation of voir dire violates the Federal Magistrates Act. He would also have held that the unpreserved issue here is cognizable despite lack of a timely objection, in much the same way it was in Nguyen v. United States, 539 U.S. 69, 78 (2003) (reversing federal appellate decision, despite lack of objection to appellate panel consisting of a non-Article III judge). The ruling in Gonzalez overrules contrary Eleventh Circuit precedent, United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 2007), which held that the defendant’s personal and explicit consent was required.

Virginia v. Moore - Search OK Following Arrest Violating State Law

2008-04-23T08:11:00.000-07:00

Rather than issuing the summons required by Virginia law, police arrested Moore for the misdemeanor of driving on a suspended license. A search incident to the arrest yielded crack cocaine, for which Moore was charged and tried. The trial court declined to suppress the evidence on Fourth Amendment grounds. The Virginia Supreme Court reversed, reasoning that the search violated the Fourth Amendment because the arresting officers should have issued a citation under state law, and the Fourth Amendment does not permit search incident to citation. In a unanimous decision written by Justice Scalia, the U.S. Supreme Court reversed, holding that police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest. A unanimous Supreme Court found no historical support for the notion that the Founders intended to incorporate statutes into the Fourth Amendment; neither the common law nor statutes of the Founding era support the defendant’s contention. Where history does not provide a conclusive answer, the Court analyzes a search or seizure in light of traditional reasonableness standards "by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S. 295, 300 (1999); see Wilson v. Arkansas, 514 U. S. 927, 931 (1995). Applying that methodology, the Court has previously held that when an officer has probable cause to believe a person committed even a minor crime, the arrest is constitutionally reasonable. Atwater v. Lago Vista, 532 U. S. 318 (2001). A State’s choice of a more restrictive search-and-seizure policy does not render less restrictive ones unreasonable, and hence unconstitutional. While States are free to require their officers to engage in nuanced determinations of the need for arrest as a matter of their own law, the Fourth Amendment should reflect administrable bright-line rules. Incorporating state arrest rules into the Constitution would make Fourth Amendment protections as complex as the underlying state law, and variable from place to place and time to time. The Court sustained the search, as well as the arrest. Having arrested Moore, the officers were also entitled to search him, as in any other search incident to arrest, to ensure their safety and to safeguard evidence. Only Justice Ginsburg, who filed a separate concurrence, saw historical support for the defendant’s view, but even she was persuaded that Atwater governs the outcome here.

Begay v. United States: DUI not a Violent Felony under ACCA

2008-04-16T11:21:00.000-07:00

ACCA imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who have three or more prior convictions for certain drug crimes or "violent felonies." Begay had 12 prior convictions for driving while intoxicated in violation of New Mexico law. The district court applied three of these convictions as a predicate for an enhanced ACCA sentence. The Supreme Court reversed, holding that felony DUI under New Mexico law is not a "violent felony" for purposes of the Armed Career Criminal Act. The Court held that the determinative question is not how the defendant may have committed the prior crimes, but rather how the statute defines it. Even if DUI involves conduct that presents serious risk of physical injury to another, it is too unlike the example crimes enumerated in ACCA – burglary, arson, extortion, and crimes involving explosives– to be included under the residual clause of ACCA. Moreover, DUI differs in an important respect from the example crimes, in that it does not involve purposeful, violent, and aggressive conduct that is the centerpiece of the example crimes. Justice Scalia’s concurrence highlights that the analytical framework of this decision differs from the Court’s expansively inclusive residual clause analysis last term in James v. United States, 550 U.S. ___ (2007) (holding attempted burglary a violent felony under ACCA’s residual clause), from which he had dissented.

Burgess v. United States: Misdemenaor=Felony

2008-04-16T11:20:00.000-07:00

The federal Controlled Substances Act, 21 U.S.C. § 841(b)(1)(A), doubles the mandatory minimum sentence for certain federal drug crimes if the defendant was previously convicted of a "felony drug offense." Burgess pled guilty to a federal crack charge carrying 10-year mandatory minimum sentence, but that mandatory minimum sentence was doubled to 20 years based on a prior South Carolina misdemeanor drug conviction that carried a maximum sentence of two years. Burgess argued that "felony drug offense" has two components: it must be a felony and it must carry a sentence of in excess of one year; since South Carolina classified his prior offense as a misdemeanor, it could not qualify despite the maximum potential punishment of two years. The Supreme Court rejected this contention, holding instead that the federal statutory definition controls, and that 21 U.S.C. § 802(44) is the exclusive definition of the term "felony drug offense" in § 841(b)(1)(A); under that definition, a state drug offense punishable by more than one year qualifies as a felony drug offense, even if the state law classifies the offense as a misdemeanor.

Baze v. Rees: Lethal Injection Cocktail Constitutional

2008-04-16T11:15:00.000-07:00

In a fractured opinion, a plurality of the Court held that the Eighth Amendment to the United States Constitution does not prohibit the most common method of lethal injection, involving a three-drug cocktail, sodium thiopental, pancuronium bromide, and potassium chloride. Although the final tally of concurrences provided a 7-2 vote, there was no opinion that spoke for five or more justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a "substantial risk of serious harm." It rejected the death row inmate’s proposal that the standard be "unnecessary risk of pain and suffering."

Medellin v. Texas: States' Rights Trump International Law

2008-03-25T15:40:00.000-07:00

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No. 128 Judgment of Mar. 31, 2004), the International Court of Justice determined that 51 named Mexican nationals, including petitioner, were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States without regard for procedural defaults. Petitioner filed a state habeas case challenging his capital conviction, claiming he was not informed of his Vienna Convention right to notify the Mexican consulate. Medellin had not timely raised and preserved the claim in state court so it was procedurally defaulted. While the applicability of Avena to Texas courts was pending in the U.S. Supreme Court, President George W. Bush determined that the United States would comply with its international obligation to give effect to the judgment by giving those 51 individuals review and reconsideration in the state courts. As a result, the Supreme Court case was deemed moot. Medellin filed another habeas petition in state court, relying on both Avena and the President’s decree. In response, the Texas Court of Criminal Appeals held that the President’s determination exceeded his powers, and it refused to give effect to the Avena judgment or the President’s determination. The U.S. Supreme Court affirmed dismissal of the habeas petition, holding that neither an International Court of Justice case, nor a memorandum issued by the President of the United States constitutes directly enforceable federal law that preempts state limitations on the filing of successive habeas petitions.

Snyder v. Louisiana - Successful Batson Challenge

2008-03-13T15:34:00.000-07:00

Allen Snyder, a black man, was convicted and sentenced to death by an all-white jury in Jefferson Parish, Louisiana, for the fatal stabbing of his wife’s male companion. Prior to trial, the prosecutor reported to the media that this was his “O.J. Simpson case.” At trial, the prosecutor peremptorily struck all five African-Americans who had survived cause challenges and then, over objection, urged the resulting all-white jury to impose death because this case was like the O.J. Simpson case, where the defendant “got away with it.” On initial review, a majority of the Louisiana Supreme Court ignored probative evidence of discriminatory intent, including the prosecutor’s O.J. Simpson remarks and argument, and denied Mr. Snyder’s Batson claims by a 5-2 vote. The U.S. Supreme Court then directed the Louisiana court to reconsider Mr. Snyder’s Batson claims in light of Miller-El v. Dretke, 545 U.S. 231 (2005). See Snyder v. Louisiana, 545 U.S. 1137 (2005). On remand, a bare majority adhered to its prior holding, once again disregarding substantial evidence establishing discriminatory intent, including the prosecutor’s references to the O.J. Simpson case, the totality of strikes against African-American jurors, and evidence showing a pattern of practice of race-based peremptory challenges by the prosecutor’s office. In addition, the majority imposed a new and higher burden on Mr. Snyder, asserting that Rice v. Collins, 546 U.S. 333 (2006), permitted reversal only if “a reasonable factfinder [would] necessarily conclude the prosecutor lied” about the reasons for his strikes. The U.S. Supreme Court reversed, relying entirely on one Batson violation, never mentioning the O.J. Simpson race card played by the prosecutor. Writing for a 7-2 majority, Justice Alito reiterated the three-part process for ruling on a Batson objection, then refined the test by adding a clear-error standard of appellate review, and then explained how that review applies in this case. Important principles result from this decision. The three-part test remains: (1) defendant must make a prima facie owing that a peremptory strike was race-based; (2) if so, the prosecutor must a offer race-neutral reason for the challenge; (3) and, in light of these submissions, the trial court must determine if there was purposeful discrimination. The Court clarified that the standard of appellate review of the trial court’s ruling is “clearly erroneous,” but the Court also made clear that an appealing defendant wins if he can show just one race-based challenge that should have been upheld under Batson. In determining if the challenge should be sustained, a trial judge considers the demeanor and credibility of the prosecutor, and an appellate court looks to the record to determine if the prosecutor’s excuse is supported. Here, the reasons given–the juror
was a student teacher who could not miss class for the week of trial, and he acted nervous during questioning–were not supported by the record. The judge’s law clerk had called the prospective juror’s college dean, who said the student teaching could be satisfied even if he missed one week while serving on the jury. The record revealed that the judge made no finding on the nervousness concern. And the record revealed that the prosecutor did not strike other prospective jurors who are white, even though they expressed similar concerns about missing work due to jury service. Having found the prosecutor’s proffered excuses to be implausible, in light of the record, the Court held that equates to purposeful discrimination under Batson. Finally, the Court noted that it does not apply to Batson appeals the causation rule applicable in many other instances that once discriminatory intent is shown, the burden shifts to the defending party to show that the factor was not determinative. In this case, in particular, remand for examination of causation could not be “profitably” explored more than a decade later. As a result, the Court reversed the judgment with no opportunity for further appellate review by the state court.

Boulware v. United States - Return of Capital Defense to Tax Evasion

2008-03-03T15:27:00.000-08:00

Boulware was charged with criminal tax evasion and filing a false income tax return for diverting funds from a closely held corporation, of which he was the president, founder, and controlling shareholder. One element of tax evasion under 26 U. S. C. §7201 is “the existence of a tax deficiency.” Sansone v. United States, 380 U. S. 343. To support his argument that the government could not establish the tax deficiency required to convict him, Boulware sought to introduce evidence that the corporation had no earnings and profits in the relevant taxable years, so he in effect received distributions of property that were returns of capital, up to his basis in his stock, which are not taxable. See 26 U. S. C. §§ 301 and 316(a). Under §301(a), unless the Internal Revenue Code requires otherwise, a “distribution of property” “made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in [§301(c)].” Section 301(c) provides that the portion of the distribution that is a “dividend,” as defined by §316(a), must be included in the recipient’s gross income; and the portion that is not a dividend is, depending on the shareholder’s basis for his stock, either a nontaxable return of capital or a taxable capital gain. Section 316(a) defines “dividend” as a “distribution” out of “earnings and profits.” The District Court granted the government’s in limine motion to bar evidence supporting Boulware’s return-of-capital theory, relying on Ninth Circuit’s precedent holding that a diversion of funds in a criminal tax evasion case may be deemed a return of capital only if the taxpayer or corporation demonstrates that the distributions were intended to be such a return. The court later found Boulware’s proffer of evidence insufficient and declined to instruct the jury on his theory. Affirming his conviction, the Ninth Circuit held that Boulware’s proffer was properly rejected because he offered no proof that the amounts diverted were intended as a return of capital when they were made. The Supreme Court reversed, holding that a distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that, when the distribution occurred, either he or the corporation intended a return of capital.

Watson: Not "Use" to Barter Drugs for Gun

2007-12-10T10:05:00.000-08:00

In Watson v. U.S., No. 06-571 (Dec. 10, 2007), the Supreme Court held that a person who trades drugs for a gun does not "use" a firearm and is therefore not guilty of violating 18 U.S.C. § 924(c), which criminalizes use of a firearm during and in connection with a drug trafficking offense.
The Court noted that in ordinary English, a person who trades an object to acquire another uses the object that he parts with, but not the one he acquires: when a person pays a cashier at a cafeteria one dollar for a cup of coffee, the person "uses" the dollar bill, not the cup of coffee. The Court declined to import meaning from a neighboring statute which criminalizes the mere receipt of a firearm, pointing out that the two statutes speak to different issues.
The Court also rejected the argument that since it had construed § 924(c) to criminalize bartering guns for drugs, it made sense to symmetrically also punish bartering drugs for guns. The Court, however, said that it must respect the "language" of the statute, and left it to Congress to decide whether the language should be change to effectuate more symmetrical results.

Gall: Reasonableness Review is Deferential

2007-12-10T09:47:00.001-08:00

In Gall v. U.S., No. 06-7949 (Dec. 10, 2007), the Supreme Court held that while the extent of the difference between a particular sentence and the recommended Guideline range is relevant, courts of appeal must review all sentences – whether inside, just outside, or significantly outside the Guidelines range – under a deferential abuse of discretion standard. The Eighth Circuit therefore erred when it reversed based only on its disagreement with Gall’s sentence. The Court specifically rejected the Eighth Circuit’s view that a variance requires "extraordinary" circumstances, and its application of a proportionality formula to determine whether a Guideline-variance is justified.
The Court noted that the district court committed no procedural error, because it adequately considered the § 3553(a) sentencing factors and adequately explained its sentence. Turning to substantive "reasonableness" review, Court found that the district court "quite reasonably attached great weight" to a number of factors in imposing a below-Guidelines sentence – Gall’s withdrawal from the conspiracy, his youthful age at the time he committed the offense, and his self-motivated rehabilitation. The Court noted that it is not for courts of appeal to decide de novo whether the justification for a variance is sufficient.

Kimbrough: Crack Guidelines Advisory Only

2007-12-10T08:23:00.000-08:00

In Kimbrough v. U.S., No. 06-6330 (Dec. 10, 2007), the Supreme Court held that under Booker the crack cocaine Guidelines, like all other Guidelines, are advisory only. A district judge therefore may consider the crack/powder disparity when sentencing crack cocaine offenders, and impose a below-Guidelines sentence if a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing set forth at 18 U.S.C. § 3553(a).
The Court rejected the government’s arguments that Congressional policy prohibits sentencing courts from disagreeing with the 100:1 ratio. The Court did not find support for this argument in Congress’ silence on this point, and noted that Neal v. U.S. was consistent with the view that Congressional statutes do not necessarily foreclose a different Guideline approach. The Court also noted that Congress recently acquiesced in the 2007 Guidelines which reduced the crack/powder disparity. The Court also rejected the argument that disagreements with the 100:1 ratio would increase sentencing disparities. The Court noted some departures from uniformity were a necessary result of its Booker decision. The Court further noted that the Sentencing Commission itself had reported that the 100:1 ratio created disproportionately harsh sanctions, thus lending support to the view that a Guidelines-based sentence would be "greater than necessary."
The Court concluded that Kimbrough’s sentence, 4.5 years below the bottom of the Guidelines range, was reasonable.

Logan: Civil Rights Never Lost are not "Restored"

2007-12-04T09:50:00.000-08:00

In Logan v. U.S., No. 06-6911 (Dec. 4, 2007), the Supreme Court held that the ACCA provision which instructs sentencing courts to disregard a prior conviction if a defendant’s civil rights have been "restored" does not apply if, under the state law governing the prior conviction, the defendant retained his civil rights at all times.
The Court noted that the word "restored" describes a measure by which the government relieves an offender of some of the consequences of his conviction.
The Court acknowledged Logan’s argument that a literal reading of the statute would produce the "anomalous" result that those who never lost their civil rights could later be sentenced more harshly than those who did. The Court pointed out, however, that Logan’s reading of the statute would create its own anomalies, for example, dangerous recidivists who never lost their civil rights would be treated more leniently than less dangerous offenders who did. The Court noted that the anomalies resulted from the statute, which looked to the differing laws and policies of the several states. Logan’s reading would also undercut the statute’s express intent to include misdemeanor offenders within its potential scope. Finally, the Court pointed to a more recent Congressional statute which clarified the point, and cast doubt on Logan’s reading.

Government Brief Filed in Gall

2007-08-23T08:25:00.000-07:00

The Solicitor General has filed the government's brief in Gall, arguing that Mr. Gall's probationary sentence is unreasonably lenient under proportionality review, which it contends is the appropriate standard in appeals of below-guidelines sentences.

Gall & Kimbrough Briefs Filed

2007-07-27T13:18:00.000-07:00

A host of remarkable briefs have been filed in the two pending sentencing guidelines cases addressing reasonableness review, Gall v. United States and Kimbrough v. United States. I have a number of them, which you can access for your weekend reading pleasure. Merits briefs in Gall and Kimbrough. Two amicus briefs by the Federal Public & Community Defenders and National Association of Federal Defenders, one in Gall and the other in Kimbrough. Plus FAMM was a friend to Gall, while NACDL was a friend to both. The Sentencing Project and the Center for the Study of Race and Law, ACLU and NAACP-LDF joined to support Kimbrough. Washington Legal Foundation and NYCDL supported Gall. Briefing is diverse and well-crafted, covering the very broad spectrum of issues and concerns these two cases bring to the Court.

Panetti: Remand for Ford Mental Illness Review

2007-07-05T10:20:00.000-07:00

In Panetti v. Quarterman, No. 06-6407 (June 28, 2007), the Supreme Court reversed the denial of habeas relief to a Texas inmate sentenced to death despite his well-documented history of mental illness.
The Court first held that the limitation on "second and successive" habeas petitions did not require dismissal of Panetti’s claim that his mental illness rendered him incompetent to be executed, because Panetti raised the claim as soon as it was ripe – and it became ripe after he had filed his first habeas petition.
Turning to the merits, the Court found that the state courts failed to give Panetti an opportunity to present his expert evidence on his mental condition. The Court further held that the Fifth Circuit had applied too restrictive an interpretation of Ford v. Wainwright, 477 U.S. 399 (1986), when it found that Panetti’s ability to link his punishment to his crime defeated the claim of mental illness. The Court stated that Ford required that the defendant have a rational understanding of the State’s rationale for executing him. The Court therefore remanded the case to develop an evidentiary record on whether Panetti met the Ford criteria.

Rita: Presumption of Reasonableness for Guideline Sentences

2007-06-21T10:02:00.000-07:00

In Rita v. U.S., No. 06-5754 (June 21, 2007), the Supreme Court held that a court of appeals may apply a presumption of reasonableness to a district court sentence within the Guidelines.
The Court noted that the presumption was not binding, and did not reflect judicial deference to the fact-finding leeway of an expert agency. Rather, it reflected the fact that the sentencing court’s analysis of the sentencing factors set forth at 18 U.S.C. § 3553(a) corresponded to the similar analysis by the Sentencing Commission. The presumption only applies on appellate review. It does not apply when a district court determines the merits of arguments that a non-Guideline sentence ought to be applied.
The Court explained that the presumption would not violate the Sixth Amendment because it neither requires nor forbids a Guideline sentence.
Finally, the Court held that the district court properly analyzed the factors in Rita’s case. The Court stated that the brevity or length of what a district court had to say when pronouncing sentence was left to a judge’s own professional judgment. The judge may say less when imposing a Guideline sentence, and normally should go further when rejecting nonfrivolous arguments for a non-Guideline sentence.

Brendlin: Passenger has 4th Amendment standing

2007-06-18T10:59:00.000-07:00

In Brendlin v. California, No. 06-8120 (June 18, 2007), the Supreme Court held that when police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and may challenge the stop’s constitutionality.
The defendant was a passenger in a vehicle that had been pulled over without reason to believe that it was being operated unlawfully, that is, without probably cause or reasonable suspicion to make the stop. A search of the defendant revealed his possession of drug paraphernalia. The defendant moved to suppress, but the California Supreme Court held that suppression was unwarranted because no additional circumstances indicated to a reasonable passenger that he was the subject of the police investigation.
Reversing, the Supreme Court noted that the relevant inquiry was whether a reasonable person would feel free to terminate the encounter. Here, Brendlin would not have felt free to terminate the encounter, because any reasonable passenger would have understood the officers to be exercising control to the point where no one in the car was free to depart without police permission. The Supreme Court rejected the reasoning that the police only intended to investigate the driver of the vehicle, not the passenger, noting that for Fourth Amendment analysis, subjective intent of the police is irrelevant; the relevant objective inquiry was the understanding of a reasonable passenger.

Four New Death Cases: Schriro, Smith, Brewer & Abdul-Kabir

2007-05-22T09:13:00.000-07:00

In Schriro v. Landrigan, No. 05-1575 (May 22, 2007), the Supreme Court held that the district court did not err in denying an evidentiary hearing regarding whether counsel gave ineffective assistance at a capital sentencing, when the defendant opposed counsel putting on mitigating evidence and interrupted counsel when he attempted to do so. The Court found that regardless of what further mitigating evidence counsel might have discovered, the defendant would have opposed counsel’s attempt to present it to the jury. Hence, no ineffective assistance occurred.
In Smith v. Texas, No. 05-11304 (Apr. 25, 2007), Brewer v. Quaterman, No. 05-11287 (Apr. 25, 2007), and Abdul-Kabir v. Quaterman, No. 05-11284 (Apr. 25, 2007) the Supreme Court reversed the denial of federal habeas relief to three Texas death row inmates. In each case, contrary to Penry v. Lynaugh, 492 U.S. 302 (1989), the Texas courts had sentenced a defendant to death without giving the jury instructions enabling them to give effect to a defendant’s mitigating evidence. In each the Fifth Circuit found the error harmless because other instructions enabled the jury to give effect to the mitigating evidence introduced by the defendant . Reversing, the Supreme Court held that the Texas court holdings were clearly contrary to Penry.

James: Florida Attempted Burglary is Violent Felony

2007-04-20T11:40:00.000-07:00

In James v. U.S., No. 05-9264 (April 18, 2006), the Supreme Court held that the offense of attempted burglary, as defined by Florida law, qualifies as a "violent felony" for purposes of the 15-year mandatory minimum of 18 U.S.C. § 924(e).
The Court noted that the statutory definition of "violent felony" did not exclude attempt offenses. The Court further noted that the list of enumerated offenses which qualified as a "violent felony" was not exhaustive. Hence, the issue of whether attempted burglary under Florida law qualified as a "violent felony" depended on whether it "involves conduct that presents a serious potential risk of physical injury to another."
The Court found that the Florida Supreme Court’s decision interpreting the attempted burglary statute made it clear that merely preparatory activity, such as acquiring burglars’ tools or casing a structure, is not enough to be guilty of the offense. An overt act is required. This overt act poses a risk akin to the risk posed by a completed burglary. The main risk of burglary arises not from the simple physical act of wrongfully entering another’s property, but from the possibility that an innocent person might confront the burglar during the crime. Attempted burglary poses the same kind of risk.
The Court rejected James’ reliance on Taylor v. U.S., 495 U.S. 575 (1990). Taylor did not require an offense to present a risk of physical injury to others in every case, but only in "the ordinary case."
Finally, the Court held that even if Florida law defines burglary to encompass a dwelling to include not only a structure but the curtilage thereof, and therefore does not involve entry into a structure, the risk posed by attempted burglary still qualified under § 924(e). A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitors – especially those with criminal motives. Thus, an attempted entry poses a risk of physical injury.
those with criminal motives. Thus, an attempted entry poses a risk of physical injury.

Whorton: No Retroactivity for Crawford

2007-03-05T11:01:00.000-08:00

In Whorton v. Bockting, No. 05-595 (Feb. 28, 2007), the Supreme Court held that it gave no retroactive effect to its Confrontation Clause holding in Crawford v. Washington that testimonial statements of witnesses absent from a trial are admissible only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness.
The Court first noted that Crawford was not an "old" rule, but a "new" rule, as evidenced by the fact that Crawford explicitly overruled Ohio v. Roberts. Thus, as a new rule, Crawford would only apply retroactively if it was a watershed rule that implicated the fundamental fairness and accuracy of judicial proceedings. The Court held that Crawford did not so quality.
First, the hearsay that is now admissibile under Crawford did not, when introduced at trial, create an impermissibly large risk of inaccurate convictions. It is not comparable to Gideon, the rule that entitled a defendant to representation by counsel. The Court noted that it was "unclear" whether Crawford increased or decreased the reliability of trial verdicts, because it eliminated Confrontation Clause protection against out-of-court nontestimonial statements.
Second, Crawford did not alter the bedrock procedural elements essential to the fairness of a criminal proceeding. Crawford, while important, did not institute a "sweeping" change.

Lawrence: AEDPA not tolled during federal certiorari appeal of final state decision

2007-02-20T11:32:00.000-08:00

In Lawrence v. Florida, No. 05-8820 (Feb. 20, 2007), <http://supremecourtus.gov/opinions/06pdf/05-8820.pdf> the Supreme Court affirmed the Eleventh Circuit’s holding that a federal habeas petitioner’s habeas petition was untimely, because the time after the final determination of the Florida state courts, during which the petitioner was seeking (unsuccessfully) certiorari review in the United States Supreme Court, did not toll the one-year statute of limitations for federal habeas petitions.
The Court held that once a State’s highest court has denied, as here, the final appeal of a state court’s denial of state post-conviction relief, the state courts have conclusively spoken on the matter. The subsequent federal certiorari proceeding is a separate proceeding. The final resolution in the state courts has occurred, and the tolling period does not continue to run because no state proceeding is "pending."

Rita and Claiborne Reply Briefs Filed

2007-02-12T08:01:00.000-08:00

With oral argument just days away, petitioners filed their reply briefs, which can be found here: Rita and Claiborne.

Government & Friends File Rita & Claiborne Briefs

2007-01-22T20:31:00.000-08:00

On the heels of the Court's Cunningham decision earlier today, the Solicitor General filed the government's briefs in Rita and Claiborne. In case the SG missed something, the U.S. Sentencing Commission weighed in, adding its self-defense by filing an amicus brief for both cases. Three prominent Senators -Kennedy, Hatch and Feinstein - filed as amici in support of affirmance in the Claiborne case. In addition to briefs, the government filed appendices, including relevant constitutional and statutory provisions and separate statistical analysis in appendix 31a and 32a. The petitioner's filings and their amicus briefs were collected here last month. Oral argument will occur February 20. Preparation of reply briefs and moot courts will fill counsels' days between now and then.

Cunningham: California's DSL Struck Down

2007-01-22T10:21:00.000-08:00

In Cunningham v. California, No. 06-6551 (Jan. 22, 2007), the Supreme Court held that California’s determinate sentencing law (DSL) violates the rule of Apprendi, because it authorizes a judge to enhance a sentence based on aggravating facts found by the judge, not the jury. California’s DSL provides for a middle term and upper term sentence, with the middle term being applicable unless a judge found aggravating facts, in which case the judge was authorized to impose the upper term.

The Court noted that, like the sentencing schemes it had previously struck down, California’s DSL authorized judges to increase sentences based on findings of facts by judges.

The Court rejected the argument that the upper term of a possible sentence, not the middle term, should be viewed as the maximum for constitutional purposes. The Court noted that the jury’s verdict alone would not authorize a sentence above the middle term.

The Court also rejected the argument that California’s DSL survived scrutiny because it preserved jury fact finding for some enhancements. The Court noted that Apprendi established a "bright line rule."

The Court also rejected the attempt to equate California’s DSL with the post-Booker advisory regime of the Federal Sentencing Guidelines. The Court found that the upper limit provision of California’s DSL was not a "reasonableness constraint." Further, the reasonableness constraint is not a substitute for Sixth Amendment constraints, but a requirement for the federal system to operate within constitutional constraints: "Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering this Court’s Sixth Amendment case law toothless." The majority noted that two pending federal cases, Claiborne and Rita, [discussed here] will address the federal reasonableness standard created by Booker. The only dissenters were Justices Kennedy, Breyer and Alito. Chief Justice Roberts joined the majority decision; together with Justice Ginsburg, and the four Booker-remedial dissenters, they formed a new and stronger majority on Apprendi-Blakely jurisprudence that may foretell a different path than originally appeared post-Booker.

Jones v. Bock: PLRA Exhaustion

2007-01-22T07:29:00.000-08:00

Jones v. Bock, 127 S. Ct. ___ (Jan. 22, 2007). Local circuit rules that require an inmate to plead and prove exhaustion in his initial complaint are not required by the Prison Litigation Reform Act. Indeed, Chief Justice Roberts wrote for a unanimous Court, such rules exceed the permissible scope of the PLRA because the exhaustion question is not a pleading requirement, but rather it is an affirmative defense to be raised first by the respondent. Also, the Court held, exhaustion does not require that the inmate name the offending official, nor does the person named in the lawsuit have to have been named at each stage of the exhaustion process. In addition, the Court held that when a petitioner brings a mixed petition with only some exhausted claims, the trial court may not simply dismiss the petition; it must entertain the exhausted claims, while setting the unexhausted claims aside.

Brendlin v. California - 4th Amendment cert grant

2007-01-19T13:15:00.000-08:00

Seizure of Passenger in Vehicle During Traffic Stop. Brendlin v. California, 127 S. Ct. ___ (cert. granted Jan. 19, 2007); decision below at 136 P.3d 845 (Cal. 2006) (en banc). Defendant was a passenger in a vehicle driven by another that was subjected to a traffic stop. A search of the vehicle incident to the stop yielded contraband. The passenger entered a negotiated plea of guilty to manufacturing methamphetamine following denial of his motion to suppress the seized evidence The California Court of Appeal reversed, finding that defendant, as a passenger, could challenge the traffic stop, and that the traffic stop was unlawful. The California Supreme Court overruled the Court of Appeal, holding that a passenger in a vehicle stopped by police is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he was the subject of officer’s investigation or show of authority. The U.S. Supreme Court granted certiorari to review the question: Is a passenger in a vehicle stopped by police seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he was the subject of officer’s investigation or show of authority?

Joseph v. US: Jury Consideration of Voluntariness of Confession

2007-01-16T09:21:00.000-08:00

Joseph v. United States, 127 S. Ct. ___ (cert. denied Jan. 16, 2007); decision below unpublished (3d Cir. 2006). The district court admitted defendant’s confession at trial, but refused to give a jury instruction required by the third sentence of 18 U.S.C. § 3501(a): "If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances." The Court of Appeals reasoned that this entire subsection was invalidated by Dickerson v. United States, 530 U.S. 428 (2000), which explicitly invalidated the first sentence of 3501(a) (Congressional attempt to overrule Miranda v. Arizona). Cert was denied in this case, but Justice Stevens issued this clarifying statement: "In Dickerson v. United States, 530 U. S. 428 (2000), we held that the first sentence of 18 U. S. C. §3501(a) is unconstitutional. In this case the Court of Appeals affirmed the District Court’s rejection of the petitioner’s request for an instruction relating to the voluntariness of her confession—an instruction that the third sentence of §3501(a) requires. The Court of Appeals reasoned that Dickerson had invalidated all of §3501 and not just the first sentence. As the Solicitor General concedes, that holding was erroneous. While I am persuaded that the arguably harmless character of the trial judge’s error provides a proper reason for denying the petition for certiorari, I think it important to note that our denial does not endorse the incorrect reasoning in the opinion of the Court of Appeals."

Burton v. Stewart: Retroactivity of Blakely

2007-01-09T09:28:00.000-08:00

Burton v. Stewart, 127 S. Ct. ___ (2007). Burton received an exceptional sentence of 258 months above the 305 month ceiling of the statutory range. The sentence became final after Apprendi v. New Jersey but before Blakely v. Washington. Questions presented: (1) Is the holding in Blakely a new rule or is it dictated by Apprendi? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively? Rather than answer these questions, the Court issued a per curiam decision holding that the district court lacked jurisdiction to hear the habeas corpus petition because it had not been filed as required by the AEDPA gateway; this was a second or successive petition for which permission had not been granted under 28 U.S.C. § 2244(b). The per curiam decision reversed all proceedings and held that the habeas proceeding must be dismissed, leaving the questions raised to be answered in the future.

US v. Resendiz-Ponce: Omitting Elements from Indictment

2007-01-09T09:25:00.000-08:00

United States v. Resendiz-Ponce, 127 S. Ct. ___ (Jan. 9, 2007). Cert petition by government to determine whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Here, the indictment for unlawful reentry failed to allege an overt act, an essential element of the crime, and Ninth Circuit precedent therefore dictated that the conviction must be reversed even though the government presented uncontested proof of an overt act at trial. After oral argument, the Court asked for additional briefing on the underlying question: Was the indictment defective? Rather than answer the government’s question on harmless error, the Court (Stevens, J.) held there had been no error at all, since the indictment was not defective. This obviated the need to decide the harmless error issue. Justice Scalia dissented, contending that the indictment was defective and that left him as the only justice willing to address the original question. "Since the full Court will undoubtedly have to speak to the point on another day (it dodged the bullet today by inviting and deciding a different constitutional issue—albeit, to be fair, a narrower one) there is little use in my setting forth my views in detail. It should come as no surprise, given my opinions in United States v. Gonzalez-Lopez, 548 U.S. ___ (2006), and Neder v. United States, 527 U.S. 1, 30 (1999) (opinion concurring in part and dissenting in part), that I would find the error to be structural."

Topside Rita and Claiborne Briefs Filed

2006-12-19T06:08:00.000-08:00

The briefing has begun in Rita v. U.S. and Claiborne v. U.S., two pending cases in which the Court will decide if guidelines sentences are presumptively correct and if sentences below the guidelines require extraordinary circumstances. I've collected and stored the topside briefs online -- they are terrific resources for ongoing sentencing litigation as we await argument and decision later this Term. Petitioners' merits briefs are just a click away for both Rita and Claiborne. Many amicus briefs supporting the petitioners are also available for your reading enjoyment and case prep:

Federal Public and Community Defenders/National Association of Federal Defenders (who prepared a statistical analysis of post-Booker sentencing appeals)
FAMM - Families Against Mandatory Minimums
NACDL -National Association of Criminal Defense Lawyers
Law Professors and Former U.S. Attorneys
The Sentencing Project and ACLU
New York Council of Defense Lawyers (separate amicus briefs for Rita and Claiborne, and a statistical analysis of reasonableness cases)
Washington Legal Foundation/Allied Educational Foundation
Veterans organizations

Oral argument will occur on February 20, 2007.

Carey v. Musladin: Absence of Clear Binding Precedent to Allow Habeas

2006-12-11T06:39:00.000-08:00

Carey v. Musladin, 127 S. Ct. 649 (2006). Federal court granted habeas relief in a state first degree murder case because the courtroom spectators included three family members of the victim who wore buttons depicting the deceased family of murder victim. State courts had denied relief on this ground, but the Ninth Circuit concluded that the state court determination was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. The Supreme Court reversed, holding that the Ninth Circuit exceeded its authority under 28 U.S.C. § 2254(d)(1), because there is no Supreme Court precedent clearly establishing that an unfair trial occurs, or habeas should be granted, when spectators wear such buttons.

Lopez v. Gonzales: State Drug Crimes as Aggravated Felonies

2006-12-05T06:27:00.000-08:00

Lopez v. Gonzales, 126 S. Ct. 2557 (2006). Lopez was convicted in South Dakota for helping someone else possess cocaine, which under South Dakota state law was the same as possessing cocaine, a felony under S.D. law, and sentenced to a five-year term of incarceration. He was released after 15 months’ imprisonment. Immigration authorities began removal proceedings against him and the I.J., after a remand from the BIA, held that the S.D. conviction was an aggravated felony. The Supreme Court reversed; Justice Souter’s opinion for the 8-1 majority held that conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is NOT a "felony punishable under the Controlled Substance Act." 18 U.S.C. §924(c)(2). The Court first noted that adopting the government’s position that "drug trafficking" can encompass conduct punishable only as a misdemeanor under the CSA runs counter to the common meaning of the applicable statutory language. It noted that "an offense that necessarily counts as ‘illicit trafficking’ under the INA is a ‘drug trafficking crime’ under §924(c), that is, a ‘felony punishable under the [CSA],’ §924(c)(2)." Because Congress provided no more detailed definition, the Court held that "using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating the cardinal rule that statutory language must be read in context." The common definition of drug trafficking requires some act beyond mere possession. The Court also noted that Congress would not have intended that State law supplant its own definition of drug trafficking, and in turn aggravated felony, especially given the consequences flowing from those designations. "The Government’s reading would render the law of alien removal, see 8 U.S.C. § 1229b(a)(3), and the law of sentencing for illegal reentry into the country, see USSG §2L1.2, dependant on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the Classification itself chose." Justice Thomas was alone in dissent.

Clark v. Arizona: Exclusion of Mental Capacity Evidence

2006-06-30T12:00:00.000-07:00

In Clark v. Arizona, No. 05-5966 (June 28, 2006), the Supreme Court held that Arizona did not violate Due Process when it narrowed the insanity test to inquire only whether the defendant had the capacity to tell right from wrong.
The Arizona legislature amended its insanity statute to drop the portion of the definition of insanity relating to cognitive capacity, that is the ability of the defendant to know what he was doing, leaving only the moral test of whether he could distinguish right from wrong – thereby amending the prior M’Naghten test. Consequently, at Clark’s murder trial, the trial court excluded defense evidence of Clark’s lack of cognitive capacity, evidence that was meant to negate mens rea but would not have been probative of insanity, as now defined.
The Court rejected the claim that Due Process required the full M’Naghten insanity definition. The Court noted that various definitions of insanity have been sustained over the years. Further, as a practical matter, cognitive incapacity will often imply moral incapacity, so the defendant is not significantly prejudiced.
The Court held that excluding evidence of Clark’s mental condition did not violate his Due Process presumption of innocence, and his Due Process right to present evidence showing his innocence. The Court noted that the "presumption of sanity" relieves the government of including as an element of every criminal charge an allegation that the defendant had the capacity to form the mens rea for the crime. The defendant is entitled to present evidence in order to rebut the "presumption of sanity." However the evidence must be relevant and persuasive enough to satisfy the defendant’s burden to establish the defense. Hence, the State can restrict introduction of mental disease evidence which otherwise could be considered for whatever a factfinder might think it was worth on the mens rea issue. Due Process is satisfied if the State has "good reason" to exclude the evidence, e.g. a wish to give the defendant a second, less stringent, avenue for exploring the mental capacity issue. The Court also noted the potential for juror confusion of mental capacity expert testimony, noting that such testimony relies on "judgment" and "judgment is fraught with multiple perils."

Sanchez-Llamas: Vienna Convention Does Not Require Suppression

2006-06-30T11:18:00.000-07:00

In Sanchez-Llamas v. Oregon, No. 04-10566 (June 28, 2006), the Supreme Court held that a violation of Vienna Convention’s requirement that a foreigner’s consulate be notified of his detention did not result in suppression of statements given to police as a remedy for this violation.
The Court noted that the Convention does not mandate suppression, but leaves implementation to domestic law. The Court noted that its supervisory authority did not extend over State courts. Moreover, suppression for a violation of the Vienna Convention, unlike for a violation of a Fourth or Fifth Amendment right, would be a vastly disproportionate remedy.
The Court also held that violations of the Vienna Convention were subject to State procedural default rules. The Court recognized that the International Court of Justice has interpreted the Convention to preclude the application of procedural default rules. But the Court held that it was not bound to follow the ICJ’s decisions.

Beard: No Access To Newspapers, Photos

2006-06-30T07:05:00.000-07:00

In Beard v. Banks, No. 04-1739 (June 28, 2006), the Supreme Court held that the Pennnsylvania Department of Corrections was entitled to summary judgment against inmates in its Long Term Segregation Unit (LTSU) who sued alleging that the policy of denying them any access to newspapers, magazines and photographs violates the First Amendment. The Court noted that prison restrictions are valid if they are reasonably related to legitimate penological interests. Here the undisputed evidence was that the denial of access to the contested materials was an incentive for growth of particularly difficult inmates. Given the deference courts must show to prison officials’ professional judgment, this explanation sufficed.

Hamdan: Military Commissions Invalid

2006-06-29T15:08:00.000-07:00

In Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), the Supreme Court held that the military commission convened by the President to try Hamdan lack the power to proceed because it structure and procedure violates both the Uniform Code of Military Justice (UCMJ) and the Geneva Convention.
The Court first rejected the government’s argument that the recently enacted Detainee Treatment Act deprived it of jurisdiction to decide the case, finding this position unsupported by the language of the law. The Court also rejected the argument that the Court should abstain, noting that this case did not involve a court martial against a member of the Armed Forces.
Turning to the validity of the commission, the Court noted that it was not expressly authorized by any congressional Act. The Court further noted that the procedure would exclude the accused and his civilian counsel from ever learning what evidence was presented against him. Further, the rules allow admission of any evidence, as long as the presiding officer concludes that the evidence is "probative." These rules were not in conformity with the UCMJ, and the Court found no justification from deviating from the ordinary court-martial rules. The Court noted in particular the jettisoning of the basic right to counsel.
The rules also violate the Geneva Conventions. The Court rejected the view that the Geneva Convention did not apply to the fight against Al Queda, noting that Article 3 covered this situation. This provisions requires trials before a "regularly constituted court." This requires at least of barest of trial protections recognized by international law.
The Court noted that it did not address the government’s power to detain Hamdan "for the duration" of hostilities.

Gonzalez-Lopez: Right to Counsel of Choice

2006-06-26T12:01:00.000-07:00

In U.S. v. Gonzalez-Lopez, No. 05-352 (June 26, 2006), the Supreme Court held that a trial court’s erroneous deprivation of a criminal defendant’s choice of counsel is structural error, and automatically entitles him to reversal of his conviction.
For his criminal trial in federal district court, the trial court had erroneously relied on a Rule of Professional Conduct to prohibit the defendant’s counsel of choice from representing him at trial. The Court held that this violated the Sixth Amendment right to counsel, which guarantees that the accused be defended by the counsel he believes to be best. The Court held that the Strickland v. Washington ineffective assistance of counsel analysis was inapposite to the choice of counsel issue, because it addressed the fairness of a trial whereas the selection of counsel is a "root meaning" of the Sixth Amendment.
The Court held that a violation of the right to counsel of one’s choice constituted structural error. The issue was not susceptible to harmless error review, because the error pervaded the trial, and gave rise to unquantifiable inquiries, for example, whether a different lawyer would have pursued a different strategy.

Kansas v. March: Equipoise Ok for Death Penalty

2006-06-26T12:00:00.000-07:00

In Kansas v. Marsh, No. 04-1170 (June 26, 2006), the Supreme Court held that the Kansas death penalty scheme, which directs imposition of the death penalty when mitigating factors stand in equipoise with aggravating factors, is constitutional.
The Court explained that its death penalty jurisprudence mere requires States to narrow the class of death-eligible defendants. The Kansas scheme complied with this requirement.

Recuenco: Blakely Error Not Structural

2006-06-26T10:50:00.000-07:00

In Washington v. Recuenco, No. 05-83 (June 26, 2006), the Supreme Court held that the harmless error standard of review applied to a Blakely violation for failure to submit to the jury a fact that serves as a basis for a sentencing enhancement. The Supreme Court rejected the argument that this error constitutes "structural error."
The Court first rejected the argument that the case only involved a question of Washington State law. The Court noted that while the ultimate harmless error analysis in this particular case might well be affected or determined by State law, the issue whether harmless or structural error applied to a Blakely error was an issue for the Supreme Court.
Citing Neder v. U.S., 527 U.S. 1 (1999), which held that harmless error, not structural error, applied to review of a district court’s failure to submit an element of the offense to the jury, the Court found that the prosecution’s failure to prove a sentencing factor to the jury is also reviewable for harmless error. "Failure to submit a sentencing factor to thejury, like failure to to submit an element to the jury, is not structural error."

Dixon: Duress Burden on Defendant

2006-06-22T15:12:00.000-07:00

In U.S. v.Dixon, No. 05-7053 (June 22, 2006), the Supreme Court held that Due Process is not violated when a jury instruction places the burden of persuasion on a defendant to establish by a preponderance of the evidence a defense of duress to a charge of receiving a firearm while under indictment and making false statements in connection with the acquisition of a firearm. The Court further held tha t, considering the duress defense Congress "may have contemplated" when it created these specific offenses, the Court could presume that Congress intended for a defendant to establish the duress defense by a preponderance of the evidence.
The Court noted that a duress defense may excuse conduct that is otherwise punishable, but normally does not controvert any of the elements of the offense itself. Consequently, shifting the burden to the defendant did not run afoul of the due process requirement that the government prove all elements of the offense.
The Court noted that the long-established common law rule was the defendant bore the burden of proof on duress. The Court rejected the argument that this common-law rule had been uniformly reversed in more recent years, pointing out that Congress did not adopt the different rule proposed by the Model Penal Code, and that the Circuits were split on the burden issue. The Court held that the relevant inquiry was what Congress "may have contemplated" when it enacted the statute. The Court found that Congress most likely contemplated the long-established common law rule.

Samson: Suspicionless Search of Parolees is Ok

2006-06-19T12:48:00.000-07:00

In Samson v. California, No. 04-9728 (June 19, 2006), the Supreme Court held that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.
Pursuant to a California statute which requires a parolee to agree to any search, with or without a search warrant, with or without cause, a police officer searched Samson, a parolee, and found methamphetamine. Samson challenged the search as violative of the Fourth Amendment.
The Court noted the diminished expectation of privacy of parolees, who are released from prison on condition they abide by certain rules during the completion of their jail sentence. Moreover, Samson had signed a document agreeing to his search condition, and he was thus ambiguously aware of it. The State, by contrast, has a substantial interest in supervising parolees because of the risk of recidivism. California’s 60 to 70 percent rate of recidivism among parolees indicates the State’s interest in intense supervision.
The Court rejected the argument that California’s law gave unbridled discretion to police to search parolees, noting the State’s prohibition on arbitrary, capricious, or harrasing searches.

Davis: 911 Nontestimonial

2006-06-19T12:26:00.000-07:00

In Davis v. Washington, (decided with Hammon v. Indiana) Nos. 05-5224 & 05-5705 (June 19, 2006), the Court held that, for purposes of determining whether a statement is "testimonial" and therefore covered by the Confrontation Clause rights recognized in Crawford, statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. The statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Applying its test to the 911 call at issue in Davis, the Court noted that this call is ordinarily designed primarily to describe current circumstances requiring police assistance. In Davis, the declarant was speaking of events as they were actually occurring. She was facing an ongoing emergency. The statements elicited were necessary to enable the police to resolve a present emergency, rather than to learn what happened in the past. Moreover, the frantic answers on the phone indicate that the primary purpose of the call was to obtain assistance, and the declarant was not acting as a witness or testifying.
By contrast, the statements in Hammon were testimonial. The declarant gave the statements to police at her home, while no emergency was in progress. The officer who was asking questions was trying to determine what had happened, not what was happening. The declarant was physically separated from the defendant when she gave the statements, and her statements narrated how potentially criminal past events began and progressed. The Hammon statements were unlike the statements in Davis, where the declarant was unprotected by police, and apparently in immediate danger, seeking aid.
The Court remanded the Hammon case to the Indiana Supreme Court for a determination whether the forfeiture by wrongdoing doctrine meant that the defendant had forfeited his constitutional right to confrontation.

Hudson: Exclusionary Rule Inapplicable to Knock & Announce Violations

2006-06-19T11:56:00.000-07:00

In Hudson v. Michigan, No. 04-1360 (June 15, 2006), the Supreme Court held that a violation of the "knock and announce" rule does not require suppression of all evidence found in the search.
The Court noted that suppression would not serve the interest protected by the constitutional guarantee against unannounced entry. Though the rule protected property and privacy, this interest did not protect against the government seeing or taking evidence described in a warrant. The Court also observed that the social costs of excluding relevant incriminating evidence would outweigh the deterrence benefits. The Court stated that "massive deterrence" was not necessary against unannounced entries. The Court further noted that civil rights suits, and an increased emphasis on internal police discipline, provided adequate deterrence against police misconduct.

House: Habeas Relief on Defaulted Actual Innocence Claim

2006-06-12T12:15:00.000-07:00

In House v. Bell, No. 04-8990 (June 12, 2006), the Supreme Court held that a Tennessee death row inmate had made the stringent showing required of a habeas petitioner who seeks to assert a defaulted challenge to his conviction based on "actual innocence." House was able to show that it was more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, had the juror been aware of new evidence, including evidence that (1) semen found on the victim did not belong to House, and this removed the motive for the crime (sexual assault), (2) substantial doubts had been raised about the origin of blood found on the House’s clothing (the blood had originally been linked to the victim), and (3) the victim’s husband purportedly confessed to her murder.
The Court noted that House had not established "freestanding innocence" that would render his conviction and sentence unconstitutional. He had raised sufficient doubts about his innocence, however, to warrant further consideration of his habeas petition.

Hill: 1983 suit can stop lethal injunction

2006-06-12T11:53:00.000-07:00

In Hill v. McDonough, No. 05-8794 (June 12, 2006), the Supreme Court unanimously reversed the Eleventh Circuit, and held that a death row inmate seeking to enjoin his execution by lethal injunction in Florida could proceed under 42 U.S.C. § 1983.
The Court noted that a proceeding which sought to enjoin a method of execution was not a challenge to a sentence, and therefore need not be characterized as a habeas proceeding, and therefore was not subject to AEDPA’s limitation on "second and successive" petitions.

Zedner: Speedy Trial Violation Can't be Harmless

2006-06-09T12:11:00.000-07:00

In Zedner v. U.S., No. 05-5992 (June 5, 2006), the Supreme Court held that a defendant cannot prospectively waive the application of the Speedy Trial Act.
At the district court’s suggestion, the defendant agreed to waive the application of the Speedy Trial Act "for all time." After a number of delays, Zedner, who had been indicted in April 1996, was not tried until 2003.
The Court noted that the Speedy Trial Act generally requires a trial to commence within 70 days of indictment, with a number of reasons justifying extension of this deadline. But none of these exclusions cover a defendant’s waiver of the Act’s application. The Court noted that it might make sense to permit such waivers if the defendant’s right to a speedy trial were the only consideration in the Act. However, the Act also had in mind the public interest in prompt trials.
The Court recognized that the Act permitted a retrospective waiver of delays, but held that this did not cover prospective waivers. The public interest in avoid delays is not served by prospective waivers. Moreover, the prosecution cannot know whether a defendant will agree to a retrospective waiver, so retrospective waivers keep the pressure on the prosecution to prosecute the case promptly in a way that retrospective waivers do not.
The Court held that estoppel did not bar the defendant from seeking dismissal of the indictment on Speedy Trial grounds notwithstanding his inconsistent waiver. First, estoppel cannot enforce a waiver promise, since this would undercut the Act’s "no-waiver" policy. Second, the district court, not the defendant, requested the waiver. Third, seeking a continuance was not inconsistent with seeking dismissal of the case.
Finally, the Court noted that the Act requires express findings contemporaneously as to why the case should be continued. Therefore these findings could not be supplied on remand. The Court noted that harmless error does not apply to review of Speedy Trial violations, because harmless error review would undercut the 70-day rule and the other rules limiting the grounds for delay. Finding a Speedy Trial violation in Zedner’s case, the Court remanded the case for a determination whether dismissal should be with or without prejudice.

Brigham City: Reasonable Entry into Home

2006-05-22T12:05:00.000-07:00

In Brigham City, Utah v. Stuart, No. 05-502 (May 22, 2006), the Supreme Court held that police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with an injury.
Upon arrving at a house, the police heard schouting from inside, and saw an altercation in which one person was was struck by another. The police entered the house. The Utah Supreme Cvourt held that the police lacked probable cause,because the cirmstances were insufficient to trigger the "emergency aid doctrine."
Reversing, the Supreme Court held that the state of mind of police is irrelevant to the reasonableness of their search. The Court found the entry reaonable in the circumstances. The police had an objective, reasonable basis for believing that an injured adult needed help and that the violence was just beginning. The police was not required to wait at the door while the fight ‘brawled on" and the injuries got more serious.

Holmes v. South Carolina: Right to Put on Defense

2006-05-01T11:35:00.000-07:00

In Holmes v. South Carolina, No. 04-1327 (May 1, 2005), the Supreme Court held that a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that strongly supports a guilty verdict.
The Court noted that the Constitution guarantees criminal defendants the right to present a complete defense. Thus, while evidence rules could keep defendants from putting on evidence of third-party guilt where it does not sufficiently connect the person with the crime, the South Carolina rule applied to Holmes was different. The South Carolina rule focussed on the strength of the prosecution’s case. "[W]here the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have usually been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case."
The Court added that disallowing a defense based on the strength of the prosecution’s case would have as little sense as not allowing the prosecution to put on a case if the defense appeared strong. By evaluating only one side’s evidence, the South Carolina rule was "arbitrary."

Day: Court can invoke time limitations sua sponte

2006-04-25T14:13:00.000-07:00

In Day v. McDonough, No. 04-1324 (Apr. 25, 2006), the Supreme Court held that a federal district court has the discretion, notwithstanding a State’s failure to assert in its answer to a habeas petition a time-bar defense under the one-year statute of limitations of AEDPA, to sua sponte dismiss a petition when it finds the petition to be time-barred.
Day’s federal habeas petition was time-barred under then-existing Circuit precedent (the Supreme Court has granted certiorari in Lawrence v. Florida to determine whether this Circuit should remain good law). The States’s response miscalculated the time limitation, and did not seek dismissal of the petition on limitations grounds. The district court, however, spotted the time-bar, and sua sponte dismissed the petition. The Supreme Court rejected the argument that the district court lacked authority to dismiss the petition when the State had waived the defense.
The Court recognized that a limitations defense is not jurisdictional. However, the Court analogized the limitations defense to a failure to exhaust state remedies, a defense which district courts can raise sua sponte. The Court interpreted the habeas rules to give the district courts flexibility and discretion to apply defenses to habeas petitions, notwithstanding the State’s initial failure to raise them. The Court noted that a district court is not obligated to act on its own initiative and dismiss a time-barred petition, but has discretion to do so.

U.S. v. Grubbs: Triggering Condition Need Not Figure in Warrant

2006-03-28T13:13:00.000-08:00

In U.S. v. Grubbs, No. 04-1414 (March 21, 2006), the Supreme Court reversed the Ninth Circuit which had held that an anticipatory search warrant that fails to contain the operative triggering condition runs afoul of the Fourth Amendment. Here, federal agents requested an anticipatory search warrant for a house where a videotape containing child pornography was going to be delivered as part of a sting operation. An affidavit that was part of the application stated that "Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been taken into the residence." That affidavit was NOT included as part of the search warrant issued by the Magistrate and used by federal agents to search the home for the tape after the tape had been delivered to the home, received by the defendant's wife and taken inside the residence. The Ninth Circuit vacated the conviction holding that "the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant."
Reversing the Ninth Circuit, the Supreme Court first held that conditioned anticipatory search warrants are consistent with the Fourth Amendment. The only limitation placed on such warrants by the Fourth Amendment's requirement of probable cause is that "two prerequisites of probability must be satisfied": 1) if the triggering condition occurs, a fair probability exists that contraband will be found in a particular place; and 2) "probable cause to believe that the triggering condition will occur." Here, both prerequisites of probability were satisfied.
Turning to the issue of whether the Fourth Amendment's particularity requirement was violated by the failure to have the triggering condition included in the search warrant, the Court held that no such violation had occurred. Relying on the express language of the Fourth Amendment, the Court held that the Fourth Amendment "specifies only two matters that must be 'particularly described' in the warrant: 'the place to be searched' and 'the persons or things to be seized." The Court further noted that "neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes [ ] a requirement . . . that the executing officer must present the property owner with a copy of the warrant before conducting his search."

Georgia v. Randolph: Both Spouses' Consent Needed for Warrantless Search

2006-03-28T13:09:00.000-08:00

In Georgia v. Randolph No. 04-1067 (March 22, 2006), the Supreme Court ruled 5-3 that it is unconstitutional for police, without a warrant, to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count. "We have to admit we are drawing a fine line, [but] we think the formalism is justified" and that it will be easier to enforce in practice. Thus, the Court held, if the individual who may be at legal risk of prosecution and thus does not want the police to enter "is in fact at the door and objects," the other occupant's consent to search will not suffice. But, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentialy objecting tenant away from the home in order to be able to make the search with the other occupant's consent. The Court left intact U.S. v. Matlok, in which one occupant was allowed to consent to police entry even though a co-occupant was being held in a squad car not far away, but was not asked for consent to search a jointly used room in the house. The Court also left intact Illinois v. Rodriguez, in which the Court allowed a search with consent of one occupant while the individual who would object to the police entry was asleep in the apartment. The case involved a warrantless police search in July 2001 of a home. It was the home of Scott Fitz Randolph. He and his wife had been having marital problems, and they were separated. He continued to live in the home. On the day of the incident, the wife had returned and was staying, at least temporarily, in the home. She called police about a domestic disturbance. When the officeres arrived, they found the wife to be upset, saying that her husband had taken the child and left. She also accused her husband of using cocaine, causing financial problems for the family. Randolph soon returned, without the child. The child had been taken to a neighbor's house. One officer asked Randolph about his wife's statements about cocaine use, and asked for permission to search. Randolph refused, but his wife consented. The officers found a straw apparently containing cocaine residue, in an upstairs bedroom. That piece of evidence was taken in, and formed the basis for a search warrant application. The police returned and made a search, finding various drug-related items. Randolph moved to suppress the evidence that had led to a charge of illegal drug possession.

Oregon v. Guzek

2006-02-24T13:12:00.000-08:00

In Oregon v. Guzek, No. 04-928 (Feb. 22, 2006), the Supreme Court held that the defendant, after being convicted of murder, did not have an Eighth Amendment right to introduce live testimony of an alibi at his death sentencing proceeding. The Court explained that sentencing proceedings traditionally concern how, not whether, a defendant committed the crime. Alibi evidence, however, concerns only whether, not how, the defendant committed the crime. In addition, the evidence attacks a previously determined matter, something the law typically discourages. Third, the impact of excluding new live testimony concerning an alibi was limited because the defendant was free to re-introduce all the evidence that had been introduced at the original trial, including the transcript of the prior trial.

Rice v. Collins: AEDPA requires more Batson deference

2006-01-18T13:02:00.000-08:00

In Rice v. Warden, No. 04-52 (Jan. 18, 2005), the Supreme Court reversed the Ninth Circuit grant of habeas relief based on a prosecutor’s use of a peremptory challenge in violation of Batson.
The Court explained that under AEDPA, a federal habeas court must find that a state court made an "unreasonable determination of facts" before it can overturn a state conviction and grant habeas relief. Here, the reasons given by the state trial court for finding that the prosecutor’s use of a peremptory challenge to dismiss a black juror were not so unreasonable as to warrant habeas relief. Reasonable minds reviewing the record might disagree with the state court’s credibility findings regarding the prosecutor’s reasons for dismissing the juror. But this does not suffice to supersede the trial court’s determination.

Brown v. Sanders: Invalidated Death Sentence Factors not determinative

2006-01-11T12:34:00.000-08:00

In Brown v. Sanders, No. 04-980 (Jan. 11, 2006), the Supreme Court held that a death penalty jury’s consideration of aggravating factors which were later invalidated by the State’s Supreme Court did not unconstitutionally deprive the defendant to an individualized death sentence. The Court noted that the (new) test for such issues is that invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process, unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. In this case, even though two factors were invalidated, the broad instruction to give weight to the "circumstances of the crime" enabled the sentencer to give weight the same facts and circumstances. Hence, the sentence was valid.

Evans v. Chavis: 3 year AEDPA delay too long

2006-01-11T12:29:00.000-08:00

In Evans v. Chavis, No. 94-721 (Jan. 10, 2006), the Supreme Court, applying Carey v. Saffold, 536 U.S. 214 (2002), held that a state post-conviction proceeding cannot be considered "pending" and thereby toll the one-year AEDPA statute of limitations, when the petitioner delayed for over three years filing his appeal in the California Supreme Court from an adverse decision, and did not have an adequate excuse to explain his inaction during this entire period. The Court reversed the Ninth Circuit’s contrary holding.

Bradshaw v. Richey: Transferred intent in Ohio

2005-12-01T08:23:00.000-08:00

In Bradshaw v. Richey, 2005 WL 3144332 (Nov. 28, 2005), the Supreme Court reversed a grant of habeas relief to an Ohio inmate convicted of aggravated murder and sentenced to death. Richey had set fire to an apartment to kill his ex-girlfriend and her new boyfriend; they escaped unharmed by a two-year old daughter died in the fire. Richey was convicted on a theory of “transferred intent.” Federal habeas relief was granted on the ground that Ohio law does not recognize a transferred intent theory.

Reversing, the Supreme Court held that Ohio law does recognize a transferred intent theory in murder cases. The Sixth Circuit erred in applying the rule that limits transferred intent liability for arson, not murder.

The Court also found that the habeas petitioner had waived his ineffective assistance of counsel claim, but remanded the case to the Sixth Circuit for a determination whether the State had itself waived its waiver objection.

Auspicious Beginning?

2005-10-17T07:48:00.000-07:00

A bit of trivia: For whom did the Roberts Court rule in its historic first published opinion? It ruled in favor of convicted murderer Paul Allen Dye, who sought a writ of habeas corpus based on prosecutorial misconduct. Check out Dye v. Hofbauer, 546 U.S. ___ (2005) (per curiam) here.

Granting Dye's petition for writ of certiorari, the per curiam opinion of the Court reversed a decision of the Sixth Circuit Court of Appeals that had denied habeas corpus relief on two separate procedural grounds: failure to exhaust the claim in state court and failure to allege the claim with specificity in federal court. The justices overruled both procedural bars, holding the claim was both properly exhausted in state court and alleged with particularity in federal court. As to the first purported bar, the Court determined that the Sixth Circuit erroneously based its exhaustion determination on the lack of ruling on the issue by the state court, rather than on the pleading of the petitioner:

The Court of Appeals examined the opinion of the state appellate court and noted that it made no mention of a federal claim. That, however, is not dispositive. Failure of a state appellate court to mention a federal claim does not mean the claim was not presented to it. "It is too obvious to merit extended discussion that whether the exhaustion requirement . . . has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court . . . ." Smith v. Digmon, 434 U. S. 332, 333 (1978) (per curiam).

As to the other purported bar, the Court found that "[t]he habeas corpus petition made clear and repeated references to an appended supporting brief, which presented Dye’s federal claim with more than sufficient particularity. See Fed Rules Civ. Proc. 81(a)(2), 10(c)."

Hardly a harbinger of liberalism, the Dye opinion is nevertheless an interesting and ironic beginning for the Roberts Court.

Halbert: Michigan must provide counsel on first-tier appeal

2005-07-18T07:28:00.000-07:00

In Halbert v. Michigan, No. 03-10198 (U.S. June 23, 2005), the Supreme Court held that the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on based on their pleas, who seek access to first-tier review (direct appeal) in the Michigan Court of Appeals. The Court thus reaffirmed its holding in Douglas v.California, 372 U.S. 353 (1963), that, in criminal proceedings, a State must provide counsel for an indigent defendant in a first appeal as of right. The Court distinguished Ross v. Moffit, 417 U.S. 600 (1974) in which it held that a State need not appoint counsel to aid a poor person seeking to pursue a second-tier discretionary appeal to the State's highest court or certiorari review to the U.S. Supreme Court. The Michigan constitution was amended to provide that "an appeal by an accused who pleads guilty or nolo contendere shall be by leave of court." Mich. Const., art. I, § 20. Despite the discretionary nature of such an appeal, the Court looked at the function of the state appellate court vis-a-vis the state supreme court and ruled that the appellate court fell within the Douglas category rather than the Ross category. Key to its decision was the fact that the appellate court sat as an error-correcting court deciding the merits of the case and that an indigent defendant was ill-equipped to represent himself on direct appeal.

Felix: Petition does not "relate back."

2005-07-18T07:24:00.000-07:00

In Mayle v. Felix, No. 04-563 (U.S. June 23, 2005), the Supreme Court, in another AEDPA statute of limitations case, ruled that Rule 15(c)(2) of the Federal Rules of Civil Procedure, which allows an amended pleading filed after the running of the statute of limitations to relate back to the filing date of the original pleading where the original and amended pleading "arise out of the same conduct, transaction, or occurrence," does not apply where the amended pleading asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. Mr. Felix was convicted of murder and robbery in California state court and sentenced to life. His conviction was affirmed on appeal and became final on August 12, 1997. Under the one-year AEDPA statute of limitations, he had until August 12, 1998 to file a federal habeas petition. He timely filed a pro se habeas petition in federal district court on May 8, 1998 in which he raised a Confrontation Clause challenge to the admission of a videotape recording of testimony of a prosecution witness. The court appointed counsel to represent Mr. Felix and on January 28, 1999, counsel filed an amendment to the habeas petition raising a Fifth Amendment challenge to the admission of statements made by Mr. Felix during a pretrial police interrogation claiming that the statements were coerced. Although the amended claim was filed after the one-year statute of limitations, Mr. Felix claimed that the amended claim related back to his timely-filed petition under Rule 15(c)(2) since both claims dealt with the unconstitutional admission of out-of-court statements during the prosecutor's case-in-chief. Reversing the Ninth Circuits' holding that the "transaction" for Rule 15(c)(2) purposes was Mr. Felix's criminal trial, the Supreme Court ruled that such a reading obliterates the statute of limitations. The Court ruled that relation back under Rule 15(c)(2) depends on the existence of a common core of operative facts uniting the original and newly asserted claim. Here, the Court found no such common core of operative facts.

Gonzalez: Rule 60(b) applies to habeas

2005-06-23T14:31:00.000-07:00

In Gonzalez v. Crosby, 2005 WL 1469516 (June 23, 2005), the Supreme Court (7-2) held that a habeas petitioner can bring a motion under Fed. R. Civ. P. 60(b) which challenges not the substance of a federal court’s prior resolution of a habeas petition on the merits, but "some defect in the integrity of the federal habeas proceedings." The Court rejected the Eleventh Circuit’s blanket rule that all Rule 60(b) motions were prohibited because of their inconsistency with the policies of AEDPA.
The Court noted that AEDPA merely limited "applications" for habeas relief, and held that a "claim" in a Rule 60(b) motion would not necessarily qualify as an "application" for habeas relief. The Court stated that Rule 60(b) "has an unquestionably valid role to play in habeas cases," pointing out that it can enable parties to obtain relief from habeas judgments which were mistakenly entered. The Court further noted that potential friction between AEDPA and Rule 60(b) was limited by the "extraordinary circumstances" required to obtain Rule 60(b) relief.
The Court found that Gonzalez had failed to show "extraordinary circumstances" because his only basis for reopening the judgment was that the statute of limitations ground for denying him habeas relief was incorrect in light of a subsequent Supreme Court interpretation of this limitations provision. The Court explained that changes in law do not always provide a basis for reopening cases long final. The Court further faulted the petitioner for his lack of diligence in seeking appellate review of the adverse limitations ruling. Decision here.

Stumpf: Triggerman identity

2005-06-21T10:17:00.000-07:00

In Bradshaw v. Stumpf, No. 04-637 (June 13, 2005), the Supreme Court held that a defendant entered into a knowing guilty plea, despite the trial court’s failure to explain the specific intent to cause death element of the aggravated murder charge, when the elements of the crime were explained to the defendant by his competent defense counsel, and where the defendant so confirmed on the record.
The Court rejected the argument that Stumpf’s profession of not having been the triggerman was inconsistent with a knowing guilty plea. The Court noted that under Ohio aider and abetter theory, Stumpf could have been guilty of the offense without being the actual triggerman. The Court also rejected the argument that the plea was involuntary because the prosecution later took the inconsistent position that Stumpf was not the triggerman. The Court noted that the precise identity of the triggerman was irrelevant to the conviction.
The Court recognized, however, that the prosecution’s inconsistent position as to whether Stumpf or his accomplice was the triggerman could have affeced his death sentence. The Court pointed out that the Sixth Circuit’s opinion on this subject was ambiguous, because it focused on the validity of the conviction, not of the sentence. The Court therefore remanded the case for further proceedings to address the question of how the prosecutor’s inconsistent position related to the validity of Stumpf’s death sentence.

Rompilla: Ineffective capital counsel

2005-06-20T12:00:00.000-07:00

In Rompilla v. Beard, No. 04-5462 (June 20, 2005), the Supreme Court held that capital counsel’s assistance in the penalty phase was constitutionally ineffective when he failed to examine the material he knew the prosecutor would rely on as evidence of aggravation. Counsel failed to examine the court file on Rompilla’s prior felony convictions – a file which was readily available. This was objectively unreasonable, and counsel’s consultation with the defendant’s and his family was not a sufficient substitute. The Court held that the lawyer’s lapse prejudiced the defendant, because the court record would have unearthed mitigation leads – such as the defendant’s mental disorders and organic brain damage and childhood problems probably related to fetal alcohol syndrome.

Miller-El vindicates Batson challenge

2005-06-20T11:58:00.000-07:00

In Miller-El v. Dretke, No. 03-9659 (June 13, 2005), the Supreme Court held that a Texas inmate was entitled to prevail on a Batson claim, and therefore was entitled to habeas relief.
The prosecutors used peremptory strikes to exclude 91% of the eligible black venire panelists. The Court found the reasons proffered by the prosecution for striking the black venire members to be "unlikely" and "pretextual." The evidence supported a conclusion that race was a significant factor in determining who was struck and who was not.
Moreover, the prosecution’s practice of "shufflng the cards" did not have racially neutral reasons. Instead, Texas was trying to avoid black jurors.
The Court rejected the Fifth Circuit’s contrary conclusion, finding that it "blinked reality."

Dodd: One year limitations period construed

2005-06-20T11:34:00.000-07:00

In Dodd v. U.S., No. 04-5286 (June 20, 2005), the Supreme Court held that the one-year statute of limitations for post-conviction motions pursuant to 28 U.S.C. § 2255 for periods which run from the date on which a right was "newly recognized by the Supreme Court," begins to run on the date the Supreme Court initially recognized the right, not from the date on which the right was "made retroactive."
The Court grounded its interpretation of the limitations provision in the plain language of the statute. The Court recognized "the potential for harsh results" from its interpretation. But the Court held that so long as the result was not "absurd," it was not free to rewrite the statute Congress had written.

Deck: Visible Shackles are Inherently Prejudicial

2005-06-01T09:25:00.000-07:00

In Deck v. Missouri, No. 04-5293 (May 23, 2005), the Supreme Court held that the Fifth and Fourteenth Amendments prohibit using physical restraints on a defendant during the sentencing phase of a capital trial, unless that use is justified by an essential state interest, such as courtroom security specific to the defendant. The Court noted that the accuracy of a life or death decision is important to a defendant, and that the view of shackles inevitably undermines the jury’s ability to weigh accurately all relevant considerations. The Court faulted the trial judge for failing to weigh all the circumstances. The shackles are presumptively prejudicial. Thus, where a court without adequate justification orders the defendant to wear shackles, visible to the jury, the defendant need not demonstrate "actual prejudice." Rather, the State must prove beyond a reasonable doubt that the shackling did not contribute to the verdict.

Arthur Andersen's Corrupt Instruction

2005-05-31T11:27:00.000-07:00

In Arthur Andersen LLP v. U.S., No. 04-368 (May 31, 2005), the Supreme Court reversed Andersen’s conviction for violating 18 U.S.C. § 1512(b)(2)(A), which criminalizes "knowingly" persuading another person "corruptly" to withhold or alter documents for use in an official proceeding. Andersen employees destroyed documents pursuant to a document retention policy while an SEC investigation was getting under way.
The Court held that the jury instruction failed to convey the "corrupt persuasion" element of the offense. The Court noted the need to give this element a narrow meaning, noting that the mere persuasion of someone to withhold a document from a government proceeding is not inherently malign. The Court noted that the term "knowingly" applied to the phrase "corruptly persuades," and that accordingly only persons conscious of wrongdoing could be said to "knowingly . . corruptly persuade."
The words of the jury instruction failed to convey this meaning. The district court instructed the jury, at the government’s insistence and over the defendant’s objection, that the "knowingly" element of the offense would be satisfied if the evidence showed an intent to "impede" an investigation. But to "impede" encompasses conduct which is not "corrupt." The use of the word "impede" meant that the word "corruptly" word in the statute provided no limit on convicting a person merely because he withheld information from the government.
Further, citing U.S. v. Aguilar, the government noted that the impeded proceeding had to be foreseen. "A ‘knowingly corrupt persuader’ cannot be someone who persuades others to shred documents under a document retention policy when he does not have in contemplation any particular official proceeding in which those documents might be material."

Untimely State Petition Doesn't Toll AEDPA Limitations Period

2005-04-27T10:29:00.000-07:00

In Pace v. DiGuglielmo, No. 03-9627 (April 27, 2005), the Supreme Court held that a state post-conviction motion is not "properly filed," within the meaning of the tolling provision of the AEDPA’s statute of limitations, when that motion was denied by the state courts for being untimely under state law. The Court distinguished Artuz v. Bennett, 531 U.S. 4 (2000), which found that a state petition was "properly filed." The Court pointed out that Artuz involved a state dismissal for procedural default, not, with Pace, a state dismissal for untimeliness. A petition dismissed as untimely cannot be considered "properly filed," the Court concluded.

Wire Fraud Based on Scheme to Defraud Foreign Government of Taxes

2005-04-26T10:56:00.000-07:00

In Pasquantino v. U.S., No. 03-725 (April 26, 2005), the Court held that a plot to defraud the Canadian government of tax revenue violates the federal wire fraud statute, 18 U.S.C. § 1343. The plot involved the smuggling of large quantities of liquor from the United States to evade Canada's heavy alcohol import taxes. The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.