On January 25 the Supreme Court granted cert in two cases, consolidated for oral argument, Abbott v. United States (09-479), and Gould v. United States (09-7073). Both cases ask for clarification of the “except” clause in 18 U.S.C. § 924(c)(I)(A), which provides: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, (emphasis added) any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . .” be subject to certain specified mandatory minimum sentences.

The issues presented in Abbott are: (1) whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction. In Gould, the issue is whether a mandatory minimum sentence provided by 18 U.S.C. § 924(c)(I)(A) applies to a count when another count already carries a greater mandatory minimum sentence.

In Abbott, the defendant was convicted of conspiracy to possess with intent to distribute a controlled substance under 21 U.S.C. § 846; possession of more than five grams of cocaine base with intent to distribute (and aiding and abetting) under 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 18 U.S.C. § 2; possession of a firearm in furtherance of a drug trafficking crime (and aiding and abetting) under 18 U.S.C. §§ 924(c)(1) & (c)(2); and possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) & 924(e). The district court sentenced Abbott to 15 years’ imprisonment under § 924(e)(1), and imposed an additional five consecutive years’ imprisonment under § 924(c) for possessing a gun in furtherance of a drug trafficking crime. In so doing, the district court rejected Abbott’s argument that § 924(c)(1)(A)’s “except” clause precluded imposition of a consecutive 5-year § 924(c) sentence for the same gun possession for which it had sentenced him to 15 years under § 924(e)(1).

In Gould, the defendant pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841, 846 (Count One); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three). On resentencing following remand from the Fifth Circuit, the district court sentenced Gould to 137 months in prison on Count One, and to a mandatory consecutive sentence of five years on Count Three, for a total of 197 months. Gould objected, arguing that the “except” clause of § 924(c)(1)(A) precluded the imposition of the five year mandatory minimum on Count Three.

In addition to the two cert grants, the Court also vacated and remanded in Briscoe v. Virginia (07-11191), which had presented the following issue: 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 avoids violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness. In its per curiam opinion, the Court simply remanded for reconsideration in light of Melendez-Diaz v. Massachusetts, without analysis of the issue presented.

During the past two weeks the Supreme Court has issued several rulings of interest to criminal defense practitioners. On January 20 the Court affirmed the Eleventh Circuit’s denial of a habeas petition in a death case, Wood v. Allen (08-9156). The state court had found that the failure of Wood’s attorneys’ to pursue and present mitigating evidence of his borderline mental retardation was a strategic decision rather than a negligent omission. Wood argued in his habeas petition that the state court’s finding was unreasonable under §2254(d)(2) of AEDPA and that, in denying his federal habeas petition, the Court of Appeals for the Eleventh Circuit erroneously conflated the §2254(d)(2) standard with that of §2254(e)(1). The Court held that the state court’s factual determination was reasonable even under petitioner’s reading of §2254(d)(2), and declined to address that provision’s relationship to §2254(e)(1).

The Court issued two per curiam opinions on January 19, Presley v. Georgia (09-5270) and the capital case of Wellons v. Hall (09-5731). In Presley, the Court held for the first time that jury selection in a criminal case must generally be open to the public under the Sixth Amendment guarantee of a public trial, not just the First Amendment. The Court stated, “There is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has.”

In Wellons, the Court granted cert, vacated and remanded pursuant to its recent decision in Cone v. Bell (holding federal habeas review is not barred when a state court had declined to review the merits of a case on the ground that it had done so previously). The Court ordered the Eleventh Circuit to reconsider the case in light of “disturbing facts” in the case that “raise[d] serious questions concerning the conduct of the trial” including ex parte and inappropriate contacts between the jury and the judge and bailiff. See Scotusblog for further analysis of both Presley and Wellons.

On January 12 the Court issued an opinion in the capital case Smith v. Spisak (08-724). The Court held that Ohio’s denial of Spisak’s habeas petition – in which he had argued that (1) the jury instructions used at his trial unconstitutionally required the jury to consider mitigating factors only if the existence of each factor was unanimously found; and (2) his attorney was constitutionally ineffective, particularly during his closing argument – was not contrary to, or an unreasonable application of, clearly established federal law. See Scotusblog for analysis of the opinion.

On January 11 the Court decided McDaniel v. Brown (08-559), ruling that flaws in presenting DNA evidence during a criminal trial do not necessarily undermine the value of a conviction based in part on that evidence. In an unsigned opinion the Court rejected a sufficiency of the evidence challenge to the conviction, under Jackson v. Virginia, and deemed forfeited a due process claim. It sent back to lower courts a third claim of ineffectiveness of counsel. See Scotusblog for further analysis of the opinion.

On January 8, the Supreme Court granted cert in Dolan v. United States (09-367), in which it will address whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated.

For information on other pending Supreme Court cases of interest to criminal defense practitioners, see Paul Rashkind’s Supreme Court Update.

On January 4, 2010, Deputy Attorney General David Ogden issued three memoranda regarding criminal discovery practices. According to the DOJ’s blog, the memoranda include “guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases.”

For full text of the memos see:

Commentary regarding the new guidance is available at the White Collar Crime Prof Blog.

Effective January 1, 2010, the non-capital hourly panel attorney compensation rate increased from $110 to $125, and the maximum hourly capital rate increased from $175 to $178. The new hourly compensation rates apply to work performed on or after January 1, 2010; where the appointment of counsel occurred before this effective date, the new compensation rates apply to that portion of services provided on or after January 1, 2010.

The Criminal Justice Act has been amended to raise the case compensation maximums applicable to appointed panel attorneys in non-capital representations "simultaneously" with aggregate percentage increases in the maximum non-capital hourly compensation rate. The new case compensation maximums apply to a voucher submitted by appointed counsel if that person furnished any CJA-compensable work on or after January 1, 2010.

For more information, panel attorneys can access charts indicating current and prior hourly rates, as well as case compensation maximums.