December 7, 2009
Changes to the Federal Rules of Appellate and Criminal Procedure Take Effect
A number of significant changes to the rules governing federal criminal prosecutions and appeals took effect on December 1, 2009. The most significant changes involve Criminal Rule 45(a)(1)(B) and Appellate Rule 26(a)(1)(B), which both adopt a new "days-are-days" approach to calculating court deadlines. Previously, Saturdays, Sundays, and holidays were excluded from calculating time periods less than 11 days. Under the new rules all days will count. Federal criminal defense attorneys should determine if, in light of these changes to the Federal Rules, courts in their jurisdiction are proposing changes to local rules. Practitioners should always consult their local rules in addition to the Federal Rules.
View our summary for a list of the most significant changes to the Federal Rules, and read the text of the Amendments to the Federal Rules of Criminal Procedure and Amendments to the Federal Rules of Appellate Procedure.
December 01, 2009
Supreme Court to Hear Cases on Federal Good Time Credits and Double Jeopardy; Issues Per Curiam Opinion Highlighting Post-Traumatic Stress as Mitigation in Death Penalty Case
Yesterday, the Supreme Court granted certiorari in two cases of interest to criminal defense practitioners and issued a per curiam opinion in a death penalty case.
In Barber v. Thomas (09-5201), the Court will clarify how federal good time credits are to be determined. The federal sentencing statute provides for credits "up to 54 days at the end of each year of the prisoner's term of imprisonment." The BOP interprets "term of imprisonment" as unambiguously meaning time served. However, throughout federal sentencing statutes, and elsewhere in the same sentence, "term of imprisonment" means the sentence imposed. For each year of a sentence imposed, the BOP interpretation results in seven fewer days of available credits. The questions presented in Barber are: (1) Does "term of imprisonment" in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. § 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed? (2) If "term of imprisonment" in the federal good time credit statute is ambiguous, does the rule of lenity and the deference appropriate to the United States Sentencing Commission require that good time credits be awarded based on the sentence imposed?
Renico v. Lett (09-338) raises a double jeopardy claim in the context of a habeas case. In Mr. Lett's first state trial, the judge declared a mistrial when the foreperson stated that the jury would not be able to reach a verdict after a little over three hours of deliberation. The Michigan Supreme Court held that Mr. Lett's retrial was not barred by double jeopardy. The Sixth Circuit disagreed, finding that jeopardy had attached under the circumstances.
In addition to the above grants, the Court also issued a per curiam decision in Porter v. McCollum (No. 08-10537), granting a new penalty phase to a decorated Korean War Veteran sentenced to death after he pleaded guilty to killing his girlfriend and her boyfriend. Mr. Porter had initially represented himself at trial, with standby counsel. After pleading guilty, standby counsel was appointed to fully represent Mr. Porter at the penalty phase. Counsel had only one short meeting with Mr. Porter. He did not obtain any of Porter's school, medical, or military service records or interview any members of Porter's family. Counsel thus failed to present any evidence of Porter's mental health or mental impairment, his family background, or his military service.
Had counsel conducted a proper investigation he would have found substantial mitigating evidence, including Mr. Porter's heroic military service in two of the most critical—and horrific—battles of the Korean War; his struggles to regain normality upon his return from war; his childhood history of extreme physical abuse at the hands of his violent father; and limitations from his brain abnormality, difficulty reading and writing, and lack of schooling.
The Supreme Court held that counsel was ineffective, and that the resulting prejudice could not be overcome. According to the Court, the Eleventh Circuit wrongly concluded that Porter's military service and abusive childhood did not support a reasonable probability of a different result. "[I]t is unreasonable to discount to irrelevance the evidence of Porter's abusive childhood, especially when that kind of history may have particular salience for a jury evaluating . . . Porter's behavior in his relationship with [the victim]. It is also unreasonable to conclude that Porter's military service would be reduced to 'inconsequential proportions,' [citation omitted], simply . . . because the jury would also have learned that Porter went AWOL on more than one occasion. Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did." The Court underscored the impact of post-traumatic stress, concluding that "the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter."
For information on all recently decided and pending Supreme Court cases raising issues of criminal law and procedure see Paul Rashkind's Supreme Court Update.
November 3, 2009
Amendments to Sentencing Guidelines Take Effect
The United States Sentencing Commission has published its 2009 Guidelines Manual. Effective November 1, 2009, several amendments to the sentencing guidelines and commentary took effect. The amendments include a change in the definition of "victim" in §2B1.1 to include certain persons who suffer non pecuniary harm; an increase to the base offense level cap in hydrocodone cases; creation of a new guideline in response to the Drug Trafficking Vessel Interdiction Act of 2008, which criminalizes the operation of certain submersibles or semi submersibles; a change in the definition of "counterfeiting" so that bleached notes are included within it; creation of a new enhancement at §2L1.1 where a defendant is a leader or organizer and commits a harboring offense in furtherance of prostitution; and clarification that the undue influence enhancement at §2A3.2 and §2G1.3 applies to attempted conduct, but does not apply where the only "minor" involved is an undercover officer.
For more information on the impact of these amendments, as well as practice pointers, see the amendment summary and analysis prepared by the National Federal Defender Sentencing Resource Counsel.
October 13, 2009
Supreme Court to Hear Cases on Scope of Section 1346 "Honest Services" Law; Pre-Trial Publicity Prejudice; Standard of Review of Ex Post Facto Clause Violation; Equitable Tolling of AEDPA
The Supreme Court today granted certiorari in three cases of interest to federal criminal defense practitioners. In Skilling v. United States (08-1394), the Court will review the conviction on fraud charges of Enron executive Jeffrey K. Skilling. The two issues before the Court are: (1) whether the federal "honest services" fraud statute, 18 U.S.C. § 1346, requires the government to prove that the defendant's conduct was intended to achieve "private gain" rather than to advance the employer's interests, and, if not, whether § 1346 is unconstitutionally vague; and (2) whether the government must rebut the presumption of jury prejudice, which arose because of pretrial publicity and community impact of the alleged conduct, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced. Skilling is one of three "honest services" cases scheduled to be heard this term.
In United States v. Marcus (08-1341), the Court will review the Second Circuit's decision to adopt as the appropriate standard for plain-error review of an alleged ex post facto violation whether there is any possibility that the defendant could have been convicted based exclusively on conduct that took place before the enactment of the statute in question. The defendant in the case had been convicted under the Victims of Trafficking and Violence Protection Act. The Second Circuit overturned the conviction out of concern that the jury had reached its guilty verdict in part on conduct that had allegedly occurred before the statute had taken effect.
Holland v. Florida (09-5327), a death penalty case, raises the issue of whether gross negligence of counsel, resulting in the late filing of the defendant's habeas petition, can justify tolling the statute of limitations under AEDPA.
For more detailed summaries of the above cases, see ScotusBlog. For information on all pending Supreme Court cases raising issues of criminal law and procedure see Paul Rashkind's Supreme Court Update.
October 1, 2009
Supreme Court to Rule on SORNA, Mandatory Minimums Under 18 U.S.C. 924, Gun Control and Terrorism Law; Will Hear Habeas Cases Raising Miranda and Jury Venire Issues
The Supreme Court granted certiorari yesterday in six cases raising issues related to criminal law and procedure. In Carr v. United States (08-1301), the Court will address the retroactive application to certain defendants of 18 U.S.C. § 2250 for failure to register under SORNA. The question presented is whether it is a violation of the Ex Post Facto clause for the U.S. Attorney General to apply the law retroactively to an individual whose underlying crime occurred before the law was enacted by Congress. In United States v. O'Brien and Burgess (08-1569) the Court will address whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.
Additional certiorari grants of interest to criminal defense practitioners appear below. For information on all pending Supreme Court cases raising issues of criminal law and procedure see Paul Rashkind's Supreme Court Update.
Berghuis, Warden v. Smith (08-1402): Addressing whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply "clearly established Federal law" under 28 U.S.C. § 2254 when it rejected a state prisoner's Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).
Berghuis, Warden v. Thompkins (08-1470): Addressing whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.
McDonald, et al. v. City of Chicago (08-1521): Addressing whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.
Holder, Attorney General v. Humanitarian Law Project (08-1498) and Humanitarian Law Project v. Holder (09-89): Addressing whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of "any *** service, *** training, [or] expert advice or assistance," to a designated foreign terrorist organization, is unconstitutionally vague; and whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of "expert advice or assistance" "derived from scientific [or] technical … knowledge" and "personnel" are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.
August 5, 2009
Crack/Powder Cocaine Equalization Bill Passes House Judiciary
On July 29 the House Judiciary Committee approved legislation to eliminate the disparity between crack and powder cocaine sentences, treating 50 grams of crack the same as 50 grams of other forms of cocaine. HR. 3245, the Fairness in Cocaine Sentencing Act of 2009, would eliminate the current 100-1 sentencing disparity between crack and powder cocaine sentences. In its current form, the bill does not appear to apply retroactively. Practitioners may wish to consult with their defender office or panel representative regarding the advisability of applying for continuances of any pending sentencings in crack cocaine cases (see Model Motion for a Continuance). For more information on the bill, including the full text as well as status updates, see the FAMM website.
July 6, 2009
Supreme Court Applies Confrontation Clause to Crime Lab Reports; Issues Decision on Student's Privacy Rights; Grants Cert in Mail Fraud Case and New Lab Report Case
Prior to recessing for the summer, the Supreme Court issued opinions in Melendez-Diaz v. Massachusetts (07-591), and Safford United School District #1 v. Redding (08-479). In Melendez-Diaz, the Court, splitting 5-4, undercut the widespread assumption that crime lab reports are so reliable as to be beyond question. Building on its recent Confrontation Clause opinions, the Court held that if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to make the analyst who prepared the report available for questioning, if the defense insists on the right to confront the analyst. Justice Antonin Scalia wrote for the majority: "There is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts." For more on the opinion, see this blog post.
The Court will have an opportunity to revisit the principles announced in Melendez-Diaz next term, as it recently granted certiorari in Briscoe v. Virginia (Docket: 07-1119). The issue presented in Briscoe is whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state can avoid violating the Confrontation Clause by providing that the accused has a right to call the analyst as his own witness.
In Safford United School District the Court held that the strip search of a 13-year-old public school student by school officials violated the Constitution, but it was not clear that the violation was established at the time of this incident. The decision below, which had ruled in favor of the child, was affirmed in part, reversed in part, and remanded. Justice Souter wrote for the 8-1 majority on the Fourth Amendment question and a 7-2 majority on the qualified immunity question. Justice Souter explained that in order to justify a strip search, school officials must have some evidence that the drug or other item they suspect is being hidden by the student is dangerous in terms of its "power or quantity," and must have some reason to suppose that the forbidden item is hidden in a student's underwear. For more on the opinion, see this blog post.
The Court also recently granted certiorari in Weyrauch v. United States (No. 08-1196), in which it will address whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated adisclosure duty imposed by state law.
June 23, 2009
Supreme Court Issues Opinions on Double Jeopardy Clause, Access to DNA Evidence, and Immigration Consequences of Conviction; Grants Certiorari to Address Civil Commitment of Sex Offenders and Miranda Warnings
On June 18, the Supreme Court issued a decision in Yeager v. United States (No. 08-67), holding, by a vote of six to three, that an apparent inconsistency between acquittals on some counts and a jury's failure to return a verdict on other factually related counts does not diminish the acquittals' potential issue-preclusive force under the Double Jeopardy Clause.
Writing for the Court, Justice Stevens explained that Ashe v. Swenson prevents the government from retrying a defendant on any charges that have as a necessary element any issue that was already decided by a jury's acquittal in a prior trial. To identify which issues the prior jury had necessarily determined, courts should look only to the jury's decisions, rather than its failures to decide; hung counts are unavoidably inscrutable, and "a jury speaks only through its verdict." For more on Yeager, see this blog post.
In another June 18 decision, District Attorney's Office v. Osborne (08-6), the Supreme Court, splitting 5-4, ruled that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence for the purpose of DNA testing to prove his or her innocence. Writing for the majority, Chief Justice Roberts stated that the task of writing rules to control access to DNA evidence "belongs primarily" to the legislature. Pursuing a "freestanding and far-reaching constitutional right of access" to DNA evidence through a civil rights lawsuit, Roberts wrote, would "short-circuit" efforts now being made by the federal government and many states to develop tools on access to such evidence. "There is no reason to constitutionalize" access through the courts when elected officials are making "a prompt and considered" response to the DNA phenomenon, the opinion concluded. For more on the opinion, see this blog post.
On June 15, the Court issued a decision in Nijhawan v. Holder (08-495), holding unanimously that to deport an immigrant for committing an "aggravated felony" that "involves fraud or deceit in which the loss to the . . . victims exceeds $10,000," the underlying fraud offense need not include the minimum loss amount as a statutory element of the crime. Instead, "the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion," which could be determined during removal proceedings before an Immigration Court. The Court distinguished this approach from the "categorical approach" used to determine predicate convictions in ACCA cases. For more on this opinion and its impact in criminal cases, see this blog post.
Yesterday, the Court granted review in two cases relevant to federal criminal law practitioners, U.S. v. Comstock (08-1224) and Florida v. Powell (08-1175). In Comstock the Court will address whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
In Powell the Court will address (1) whether the decision of the Florida Supreme Court, holding that a suspect must be expressly advised of his right to counsel during custodial interrogation, conflicts with Miranda v. Arizona and (2) if so, does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (a) the right to talk to a lawyer "before questioning" and (b) the "right to use" the right to consult a lawyer at any time" during questioning?
June 10, 2009
Supreme Court Defines the "Structure" Requirement of an Association-in-Fact Enterprise Under RICO; Addresses Double Jeopardy Claim Related to Atkins Hearing
On June 8, 2009, the Supreme Court held in a 7-2 ruling in Boyle v. United States (No. 07-1309), that an association-in-fact enterprise under 18 U.S.C. § 1962(c), the Racketeer Influenced and Corrupt Organizations Act (RICO), must have a "structure" distinct from the pattern of racketeering activity in which it engages; however, trial courts need not use the term "structure" in instructing the jury on the evidence needed to prove an association-in-fact enterprise.
Justice Alito wrote for the majority, stating that association-in-fact enterprises must have three structural features: "a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprises's purpose." However, "[s]uch a group need not have a hierarchical structure or a 'chain of command'; decisions may be made on an ad hoc basis and by any number of methods . . . . Members of the group need not have fixed roles . . . . The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence."
Jury instructions need not use the term "structure" or specifically be framed in terms of a requirement that jurors find an "ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages," as Boyle proposed in his case. It was sufficient to tell the jury that they could not convict on the RICO counts unless they found the government had proved the existence of an enterprise, which made clear that the existence of an enterprise is an element distinct from the pattern of racketeering activity. The Court rejected the notion that the existence of an enterprise can never be inferred from evidence showing that persons associated with the enterprise engaged in a pattern of racketeering activity.
The Court also recently issued a decision in Bobby v. Bies (No. 08-598), holding that the guarantee against double jeopardy did not preclude a hearing to determine if Bies' mental retardation prohibited his execution under Atkins v. Virginia, 536 U.S. 304 (2002), notwithstanding the state supreme court's prior recognition of Bies' borderline mental retardation in upholding his death sentence pre-Atkins.
May 27, 2009
Supreme Court Issues Decision on Sixth Amendment Right to Counsel, Overruling Michigan v. Jackson; Addresses Telephone Counts in Drug Cases
In Michigan v. Jackson, 475 U.S. 625 (1986), the Court held that once a defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver of that right during subsequent police initiated interrogation without counsel present is presumed invalid unless the accused initiates communication. Splitting 5-4, the Court overruled this precedent yesterday in Montejo v. Louisiana (07-1529).
Montejo was arrested as a suspect in a robbery-murder. When police sought to question Montejo, he waived his Miranda rights. Three days after initial interrogation, Montejo was brought before a judge for a preliminary hearing required under Louisiana state law. At the hearing, the court ordered the appointment of counsel. After the hearing, but before Montejo met his attorney, the police visited Montejo in prison and convinced him to accompany them on an excursion to locate the murder weapon. Soon after, Montejo wrote an inculpatory letter of apology to the victim's widow. At trial, the letter of apology was admitted over defense objection, and Montejo was convicted. In upholding the conviction, the Louisiana Supreme Court rejected the application of Jackson, reasoning that Jackson is not triggered unless and until the defendant has actually requested a lawyer or otherwise asserted his Sixth Amendment right to counsel, as opposed to passively accepting the routine appointment of counsel.
In an opinion written by Justice Scalia, the Court rejected the approach taken by the Louisiana Supreme Court, reasoning that such an approach would be unworkable given the variations in appointment of counsel procedures among the states. But the Court also rejected Montejo's interpretation of Jackson, i.e., that no represented defendant can ever be approached by the State and asked to consent to interrogation. Instead, the Court concluded, "When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary." In justifying the unusual step to overrule a prior decision, the Court reasoned, "[R]equiring an initial 'invocation' of the right to counsel in order to trigger the Jackson presumption is consistent with the theory of that decision, but . . . would be unworkable in [many states]. On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale." The Court declared that "when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not 'pay its way.'" In remanding the case, the Court noted that Montejo should be given the opportunity to claim that his letter of apology should be suppressed pursuant to the rule in Edwards v. Arizona, 451 U.S. 477 (1981), or on the grounds that his Sixth Amendment waiver was not knowing and voluntary.
In addition to Montejo, the Court also issued a decision in Abuelhawa v. United States (08-192), unanimously ruling that using a telephone to make a misdemeanor drug purchase does not "facilitate" a felony distribution crime under 21 USC § 843(b).
The Court has also recently granted certiorari in three cases presenting issues related to criminal law and procedure. In Black, et al. v. United States (08-876), the Court will address whether the "honest services" clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants "reasonably contemplated identifiable economic harm," and if the defendants' reversal claim is preserved for review after they objected to the government's request for a special verdict. Beard v. Kindler (08-992) raises the question whether a state procedural rule is automatically "inadequate" under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory. And in Wood v. Allen (08-9156), the question presented is whether the state court's conclusion – that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel – was based on an unreasonable determination of the facts and whether the circuit court erred in its application of AEDPA to the review of the state court decision.
May 5, 2009
Supreme Court Determines That "Knowingly" Applies to All Elements of Aggravated Identity Theft
The Supreme Court yesterday issued a decision in Flores-Figueroa v. United States (08-108), clarifying the intent requirement of the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1). The statute 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 by § 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. For more on the Court's reasoning, see the case summary on the Federal Defender Supreme Court Blog.
The Supreme Court also granted certiorari in two cases, Sullivan v. Florida (08-7412) and Graham v. Florida (08-7621), both of which raise constitutional challenges to the imposition of life in prison without possibility of parole on juveniles who commit crimes other than murder.
April 30, 2009
DOJ and the Obama Administration Declare Support for Eliminating the 100:1 Sentencing Disparity Between Crack and Powder Cocaine
In testimony before the Senate Judiciary Subcommittee on Crime and Drugs yesterday, Assistant United States Attorney General Lanny Breuer declared that "Congress's goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine." This is the first time that the Department of Justice has supported equalization of cocaine sentencing.
Noting that a complete end to the sentencing disparity cannot occur without Congressional action, Mr. Breuer offered hope for defendants currently facing sentencing for crack cocaine offenses:
[W]e recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts' attention.
Mr. Breuer was one of several witnesses who testified at yesterday's hearing on "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."
April 30, 2009
Supreme Court Permits Use of Involuntary Statements for Impeachment; Clarifies Scope of Gun Enhancement
The Kansas Supreme Court yesterday issued decisions in Kansas v. Ventris (07-1356), and Dean v. United States (08-5274).
In Kansas v. Ventris, Ventris was arrested for aggravated robbery and burglary. The state planted an informant in his cell, to whom Ventris made incriminating statements. The state later conceded that this was a violation of Ventris' Sixth Amendment right to counsel and, as a result, was prohibited from using the confession in its case-in-chief. It was, however, allowed to use the confession to impeach Ventris' own testimony at trial. Kansas held that such use was impermissible under the exclusionary rule. The U.S. Supreme Court, in an opinion authored by Justice Scalia, held that Ventris' incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant's conflicting statement.
In Dean, the Court addressed the sentencing enhancement of 18 U. S. C. §924(c)(1)(A)(iii), which provides that an individual convicted for using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, receives a 10-year mandatory minimum sentence if the firearm is discharged. Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Although the discharge was accidental and no one was harmed, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. In a 7-2 opinion by Chief Justice Roberts, the Supreme Court held that section 924(c)(1)(A)(iii) requires no separate proof of intent and that 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.
The Court also issued an opinion on Tuesday in Cone v. Bell (07-1114), in which it addressed whether a federal habeas claim is procedurally defaulted if it is presented twice to state courts and whether a federal court has the power to recognize that a state court erred in holding that its law precluded it from reviewing a claim.
April 23, 2009
Sentencing Commission Votes on Proposed Guideline Amendments
The United States Sentencing Commission voted at its public meeting on April 15 to promulgate several amendments to the guidelines and commentary. Amendments include a change in the definition of "victim" in §2B1.1 to include certain persons who suffer non-pecuniary harm; an increase to the base offense level cap in hydrocodone cases; creation of a new guideline in response to the Drug Trafficking Vessel Interdiction Act of 2008, which criminalizes the operation of certain submersibles or semi-submersibles; a change in the definition of "counterfeiting" so that bleached notes are included within it; creation of a new enhancement at §2L1.1 where a defendant is a leader or organizer and commits a harboring offense in furtherance of prostitution; and clarification that the undue influence enhancement at §2A3.2 and §2G1.3 applies to attempted conduct, but does not apply where the only "minor" involved is an undercover officer. These amendments will be sent to Congress on May 1 and, assuming Congressional approval, will take effect on November 1, 2009.
April 22, 2009
Supreme Court Limits Search-Incident-to-Arrest Rule
In a 5-4 decision, the Supreme Court yesterday rejected a broad expansion of the Belton rule allowing police to search the car of a suspect incident to arrest. In Arizona v. Gant (07-542) the Court held 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.
In affirming the judgment for the defendant below, the Court noted that there was no reasonable chance that Gant could have accessed his car after he was arrested by five police officers, handcuffed, and placed in a squad car. Furthermore, the police arrested Gant for driving with a suspended license, a crime for which the police could not have reasonably expected to find evidence in the car. Justice Stevens, joined by Justices Scalia, Thomas, Souter, and Ginsburg, rejected the argument that stare decisis requires a broad interpretation of the Belton rule: "We have never relied on stare decisis to justify the continuance of an unconstitutional police practice."
April 21, 2009
Supreme Court Grants Cert in Cases Addressing Speedy Trial Act and Depiction of Animal Cruelty Statute
On April 20, the Supreme Court granted cert in Bloate v. United States (08-728), and United States v. Stevens (08-769).
In Bloate the Court will address whether time granted at the request of a defendant to prepare pretrial motions qualifies as "delay resulting from other proceedings concerning the defendant" and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.
In Stevens the Court will determine whether 18 U.S.C. § 48 is facially invalid under the Free Speech Clause of the First Amendment. The statue at issue prohibits "the knowing creation, sale, or possession of a depiction of a live animal being intentionally maimed, mutilated, tortured, wounded, or killed, with the intention of placing that depiction in interstate or foreign commerce for commercial gain, where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, and the depiction lacks serious religious, political, scientific, educational, journalistic, historical, or artistic value."
Earlier this term, the Court granted cert in many other cases presenting issues of criminal law and procedure. For more information on these cert grants, and other criminal cases pending before the Supreme Court, see Paul Rashkind's United States Supreme Court Review - Preview - Overview.
April 6, 2009
Supreme Court Enforces Limits on Use of Voluntary Confessions Obtained After Delay in Presentment
In Corley v. United States (07-10441), issued today, the Court addressed the continued applicability of the McNabb-Mallory rule to voluntary confessions. The McNabb-Mallory rule had rendered inadmissible confessions made during periods of detention that violated the prompt presentment requirement of Federal Rule of Criminal Procedure 5(a) (requiring that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge . . . .").
In 1968, Congress enacted 18 U. S. C. §3501, which provides in part that in any federal prosecution, "a confession made . . . by . . . a defendant therein, while such person was under arrest . . . , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge . . . if such confession is found by the trial judge to have been made voluntarily . . . and if such confession was made . . . within six hours [of arrest]." The six-hour time limit is extended when further delay is "reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]." Some federal courts subsequently held that 18 U. S. C. §3501 abrogated the McNabb-Mallory rule.
The Corley majority held that "§3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was 'reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]'). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was "'made voluntarily and . . . the weight to be given [it] is left to the jury.'" Where a confession occurs beyond six hours but before presentment, "the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed."
In addition to Corley, the Court also recently issued opinions in Rivera v. Illinois (07-9995), holding that the a trial court's good-faith error in denying the defendant's peremptory challenge to a juror is not structural error; and Harbison v. Bell (07-8521), holding that 18 U.S.C. § 3599 authorizes federally appointed counsel to represent clients in state clemency proceedings.
March 25, 2009
Supreme Court Rules That Plain-Error Test Applies to Forfeited Claim of Breached Plea Agreement
The Supreme Court today issued an opinion in Puckett v. United States (07-9712), holding that a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure. Applying the plain-error standard to the defendant's claim, the Court ruled the defendant had failed to demonstrate that his ultimate sentence was affected by the government's breach.
Yesterday, the Court issued an opinion in Knowles v. Mirzayance (07-1315), ruling that the defendant's lawyer's recommendation to withdraw an insanity plea did not constitute ineffective assistance of counsel for purposes of federal habeas law. Earlier this month, the Supreme Court held that 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. (See Vermont v. Brillon (08-88))
For information on additional opinions issued earlier this term, see the case summaries on the U.S. Supreme Court Blog.
March 13, 2009
Criminal Justice Act Panel Attorney Rates Increase
Effective March 11, 2009, Criminal Justice Act panel attorney rates increased to $110 per hour for non-capital cases, and to $175 per hour for capital cases. The non-capital case compensation maximums have also been raised. (See AO Director's Memorandum of March 12, 2009 and Current CJA Rates and Case Compensation Maximums.)
February 25, 2009
Supreme Court Interprets Domestic Violence Predicate in Federal Firearms Statute
In United States v. Hayes (07-608), issued on February 24, the Supreme Court addressed 18 U.S.C. §922(g)(9), which prohibits the possession of a firearm by a person convicted of a "misdemeanor crime of domestic violence." The definition of a "misdemeanor crime of domestic violence," contained in §921(a)(33)(A), imposes two requirements: (1) a "misdemeanor crime of domestic violence" must have, "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon;" and (2) it must be "committed by" a person who has a specified domestic relationship with the victim. The Court held that the domestic relationship, although it must be established beyond a reasonable doubt in a §922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.
February 23, 2009
Supreme Court Grants Cert in ACCA Case
The Supreme Court today granted cert on two questions in Johnson v. United States (08-6925), both of which pertain to the status of a state conviction for felony battery as a "violent felony" under the Armed Career Criminal Act. The court declined to hear a third question asking the Court to overrule its decision in Almendarez-Torres v. United States. Earlier this term, the Supreme Court decided Chambers v. United States, 06-1120, holding that failure to report for penal confinement is not a violent felony under ACCA.
The Court also granted cert in a state case, Padilla v. Kentucky (08-651), addressing the duty of an attorney to advise a client facing mandatory deportation from the U.S. after pleading guilty to trafficking in marijuana. Additionally, the Court will hear an AEDPA case, Smith v. Spisak (08-724), and a civil case, Alvarez v. Smith (08-351) raising Due Process claims in conjunction with the seizure of personal property by local law enforcement agencies.
Earlier this term, the Court granted cert in many other cases presenting issues of criminal law and procedure, including Flores-Figueroa v. United States, a case interpreting the scope of the Aggravated Identity Theft statute. For more information on these cert grants, and other criminal cases pending before the Supreme Court, see Paul Rashkind's United States Supreme Court Review - Preview - Overview.
February 18, 2009
The National Research Council Releases Report Criticizing the Nation's Current Forensic Science Methods
The National Research Council (NRC) today released a report Strengthening Forensic Science in the United States: A Path Forward. According to the NRC, the congressionally mandated report "finds serious deficiencies in the nation's forensic science system and calls for major reforms and new research. Mandatory certification programs for forensic scientists are currently lacking, as are strong standards and protocols for analyzing and reporting on evidence. There is also a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods." More information on the report is available on the National Academies of Science web site.
For suggestions on how to use the report, see Forensic Science Exposed as Non-Science: National Academy of Sciences Issues Critical Report
January 27, 2009
Supreme Court's Per Curiam Opinions Reaffirm Post-Booker Limitations on Sentencing Guidelines; New Opinion and Cert Grants Address Auto Stops, Police Interrogations
On January 21, 2009, the Supreme Court issued a per curiam summary reversal in Spears v. United States (08-5721), reaffirming Kimbrough's holding that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines." The Court explained that "even when a particular defendant in a crack cocaine case presents no special mitigating circumstances – no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation – a sentencing court may nonetheless vary downward from the advisory guideline range. The Court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates 'an unwarranted disparity within the meaning of § 3553(a)' and is 'at odds with § 3553(a).'
Spears clarified that Kimbrough's "closer review" dicta does not apply to cases involving guidelines that "do not exemplify the Commission's exercise of its characteristic institutional role" and that "with respect to the crack cocaine Guidelines, a categorical disagreement with and variance from the Guidelines is not suspect." According to the Court, "[a] sentencing judge who is given the power to reject the disparity caused by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant's sentence necessarily permits adoption of a replacement ratio." The Court approved of the district court's reliance on a 20:1 ratio which, it noted, had been accepted by two other courts and recommended by the Sentencing Commission itself.
On January 26 the Court issued another per curiam opinion, Nelson v. United States (08-5657), in which it reiterated the rule, articulated in Rita and Gall, that "district judges, in considering how the various statutory sentencing factors apply to an individual defendant, 'may not presume that the Guidelines range is reasonable.' The Court found error because the Fourth Circuit affirmed notwithstanding the district court's application of a presumption of reasonableness.
An explanation of the significance of Spears and Nelson can be found on the Sentencing Law and Policy Blog: "[T]he Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines. Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program."
On June 26 the Court also issued an opinion in Arizona v. Johnson (07-1122), holding that police who have made a routine traffic stop of a vehicle may do a pat-down search of a passenger, even if they have no suspicion of any other crime, so long as the police believe the individual may be armed and dangerous and the search does not unduly prolong the traffic stop. In addition, the Court granted cert in Maryland v. Shatzer (08-680). The question presented in Shatzer is whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years later. (See Petition for Certiorari and Brief in Opposition.)
The Court has also recently taken action in two habeas cases. On June 26, the Court granted cert in McDaniel v. Brown (08-559) on the question of whether, on federal habeas review, the evidence underlying the defendant's conviction for sexual assault was clearly insufficient under Jackson v. Virginia . (See Petition for Certiorari and Brief in Opposition.) In an opinion released on January 21, Waddington v. Sarausad (07-772), the Court held that the lower courts had improperly granted habeas relief to a prisoner convicted following the reading of ambiguous jury instructions.
January 15, 2009
Supreme Court Further Limits Exclusionary Rule; Declines to Extend Apprendi to a Judge's Decision to Impose Consecutive Sentences
On January 14, 2009, the Court issued opinions in Herring v. United States (07-513), and Oregon v. Ice (07-901).
In Herring v. United States, the Court held that evidence obtained as the result of an erroneous arrest can be admitted where the police error is "the result of isolated negligence attenuated from the arrest."
The police had arrested Herring based on an erroneous report from another police department indicating that there was a warrant outstanding for his arrest. The officers learned of the error only after they had searched Herring's car and found illegal drugs and a gun. According to the Court, these circumstances did not justify exclusion of the evidence. Instead, "to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level."
In Oregon v. Ice the Court examined Oregon's sentencing scheme, in which sentences for multiple crimes are to be served concurrently unless a judge finds that the crimes did not occur as part of the same course of conduct, and that, even if they did, the two crimes resulted in separate harms. The Court held that it does not violate the Sixth Amendment jury trial right for a judge to impose consecutive sentences based on facts that were not found by the jury, thus refusing to extend the Apprendi line of cases beyond sentencing for single crimes. According to the Court, both historic practice — juries traditionally have had no role in deciding for or against consecutive sentences — and "respect for state sovereignty" suggest the need to confine the Apprendi rationale to "sentences for discrete crimes."
January 13, 2009
Supreme Court Holds That Failure to Report Is Not a Felony Under ACCA
On January 13, 2009, the Supreme Court issued opinions in two cases, Chambers v. United States, 06-1120, and Jimenez v. Quarterman, 07-6984.
In Chambers, the Court addressed the Armed Career Criminal Act (ACCA), which imposes a 15-year mandatory prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or "a violent felony," 18 U. S. C. §924(e)(1). At issue was whether Chambers' prior Illinois conviction for failure to report for weekend confinement "involves conduct that presents a serious potential risk of physical injury to another," §924(e)(2)(B)(ii). The District Court treated the failure to report as a form of what the relevant state statute calls "escape from [a] penal institution," and held that it qualified as a"violent felony" under ACCA. The Seventh Circuit agreed.
The Supreme Court held that the crime of failure to report for penal confinement falls outside the scope of ACCA's "violent felony" definition under the categorical approach set forth in Taylor v. United States, 495 U. S. 575, 602. According to the Court, while the statute at issue listed both failure to report and escape in the same section, for ACCA purposes they are treated as two separate crimes. Furthermore, failure to report does not "'involv[e] conduct that presents a serious potential risk of physical injury to another.'" The Court reasoned, "while an offender who fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. To the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct." The Court rejected the Justice Department's argument "that a failure to report reveals the offender's special, strong aversion to penal custody" and, as such, meets the violent felony definition. Instead, "the offender's aversion to penal custody, even if special, is beside the point. The question is whether such an offender is significantly more likely than others" to engage in activity threatening "serious potential risk of physical injury."
In Jimenez, the Court decided that, if a state prisoner is allowed by a state court to file an appeal that ordinarily would be too late, that will delay the start of the one-year filing period for pursuing a habeas challenge until after the state appeal is resolved.
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