DEFENDER SERVICES OFFICE
TRAINING DIVISION





The Defender Services Office Training Division furthers the right to effective assistance of counsel by providing training and other resources to attorneys appointed under the Criminal Justice Act.





    August 12, 2015
    Fourth Circuit Ruling on Warrant Requirement for Historical Cell Site Records Creates Circuit Splits
    Last week, the Fourth Circuit in United States v. Graham held that there was an expectation of privacy in historical cell site records and that a warrant is required to obtain and inspect such information.  The case it at odds with several other Circuit rulings, which may lead to Supreme Court review.  For an analysis of the case see:

    Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant

    June 30, 2015
    Supreme Court Rejects Challenge to Lethal Injection Protocol; Grants Cert on Two Criminal Procedure Issues
    Yesterday the Supreme Court issued its opinion in Glossip v. Gross (No. 14-7955), rejecting an Eighth Amendment challenge to Oklahoma's lethal injection drug protocol.  For more on the opinion see this SCOTUSblog post.  

    The Supreme Court also granted cert in Musacchio v. United States (No. 14-1095), which raises the following questions:

    (1)  Whether the law-of-the-case doctrine requires the sufficiency of the
    evidence in a criminal case to be measured against the elements described
    in the jury instructions where those instructions, without objection,
    require the government to prove additional or more stringent elements than
    do the statute and indictment?

    (2) Whether a statute-of-limitations defense not raised at or before trial
    is reviewable on appeal?

    June 26, 2015
    Supreme Court Strikes Down ACCA Residual Clause as Unconstitutional
    Earlier today the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B), is unconstitutionally vague:

    "We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony." Scalia, J.

    June 23, 2015
    Recent Supreme Court Actions on Criminal Law Issues
    In the past week the Supreme Court has issued opinions and granted cert in several cases of interest to criminal defense practitioners. 

    Ohio v. Clark (No. 13-1352) held that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother's boyfriend as the person who injured him did not violate the Confrontation Clause because the statements were not made with the primary purpose of creating evidence for a criminal case. For an analysis of the opinion see this SCOTUSblog post

    In McFadden v. United States (No. 14-378) the Court held that in order to convict someone of distribution of a controlled substance analogue, the government must prove the defendant knew the substance constituted a controlled substance analogue.  For an analysis of the opinion see this SCOTUSblog post

    The Court also issued an opinion in Brumfield v. Cain (No. 13-1433), holding that a Louisiana death-row inmate was entitled to have his Atkins claim considered on the merits after the state court rejected his claim without affording him an evidentiary hearing or granting him time or funding to secure expert evidence. 

    In addition to the above opinions the Court also granted cert in Luis v. United States (No. 14-419) to decide whether the pretrial restraint of a criminal defendant's legitimate, untainted assets needed to retain counsel of choice violates the Fifth and Sixth Amendments.

    June 02, 2015
    Supreme Court Issues Decisions on Internet Threats, and Drug Paraphernalia as Predicate Conviction
    Yesterday, the Supreme Court handed down its decision in Elonis v. United States (No. 13-983), overturning Mr. Elonis' conviction under 18 U.S.C. § 875(c) for posting threatening comments on Facebook.  The Court held that, contrary to the jury instruction provided in this case, "negligence is not sufficient to support a conviction under Section 875(c)."  For more on the opinion see this SCOTUSblog post.

    The Court also decided the immigration case of Mellouli v. Lynch (No. 13-1034), holding that Mr. Mellouli's Kansas conviction for possessing drug paraphernalia to store four unnamed pills in a sock did not trigger removal under 8 U.S.C. §1227(a)(2)(B)(i). For more on the opinion see this SCOTUSblog post.

    May 27, 2015
    Supreme Court to Hear Cases on Mandatory Minimum for Child Pornography Convictions, and Batson Challenge in Capital Trial
    Yesterday the Supreme Court granted certiorari in two cases of interest to criminal defense practitioners, Lockhart v. United States (No. 14-8358) and Foster v. Humphrey (No. 14-8349). 

    The question presented in Lockhart is: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

    In Foster, the issue is whether the Georgia courts erred in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case.

    May 19, 2015
    Supreme Court Holds Firearm Owner Convicted of a Felony May Lawfully Transfer His Weapons
    Yesterday, the Court unanimously ruled in Henderson v. United States (No. 13-1487) that a firearm owner convicted of a felony is allowed to transfer his weapons to independent third parties, including selling the weapon on the open market. For more on the opinion see this SCOTUSblog post

    April 21, 2015
    Supreme Court Limits Use of Dog Sniff After Completion of a Traffic Stop
    Today, the Supreme Court issued an opinion in Rodriguez v. United States (No. 13-9972).  As summarized by Justice Ginsburg, writing for the majority, the Court held the following:

    In Illinois v. Caballes, 543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407. The Court so recognized in Caballes, and we adhere to the line drawn in that decision.

    April 13, 2015
    Sentencing Commission Votes to Promulgate Amendments to Guidelines
    On April 9, 2015, the Sentencing Commission voted to promulgate amendments to the sentencing guidelines.  These amendments will be submitted to Congress by May 1, 2015.  Barring congressional action, they will take effect November 1, 2015.  For an overview of the most relevant changes, see this Summary of the 2015 Proposed Amendments to the Sentencing Guidelines by National Sentencing Resource Counsel. Read the language of all the proposed amendments in the Commission's Preliminary Version of the Amendments. Practitioners may be able to use favorable amendments now in arguments for variances.

    April 01, 2015
    This Week's Actions by the Supreme Court: Opinions on Electronic Monitoring and IAC, and Cert Grants on Death-Sentencing Proceedings
    Yesterday, the Supreme Court issued a per curiam opinion in Grady v. North Carolina (No. 14-593), addressing whether North Carolina's electronic monitoring program constitutes a search under the Fourth Amendment. The monitoring program requires those convicted of sex offenses to wear an ankle bracelet tracking their movement for the rest of their lives. While the Court held that "a State. . . conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements," the Court declined to decide whether or not such a search is unreasonable.

    The Court also issued a per curiam opinion in the habeas case of Woods v. Donald (No.14-618), and granted cert to review death-sentencing proceedings in three state cases, Kansas v. Carr (Nos. 14-450 and 14-449), and Kansas v. Gleason (No. 14-452).

    In Woods v. Donald, the Court reversed the Sixth Circuit's judgement that Cory Donald's attorney provided per se ineffective assistance of counsel under United States v. Cronic when he was briefly absent during testimony concerning other defendants.

    The two Kansas v. Carr cases involve the joint murder trial of two brothers.  In Carr, the Court will decided whether it was unconstitutional for the state court to hold a death-sentencing proceeding for both brothers at the same time. The Court will also address whether a judge in a death case has a constitutional duty to tell the jury that a more relaxed standard of proof applies when the jurors are considering mitigating factors. This same issue is also before the Court in Kansas v. Gleason.

    For more on all of these cases, see this SCOTUSblog post

    March 25, 2015
    Supreme to Determine Whether Miller v. Alabama Applies Retroactively
    Yesterday, the Supreme Court granted cert in Montgomery v. Louisiana (No. 14-280).  The issue presented is whether Louisiana improperly denied retroactive application of the constitutional ban on automatic life-without-parole sentences for children, as set forth in Miller v. Alabama

    March 10, 2015
    Supreme Court to Examine Jury's Role in Death Penalty Sentencing
    Yesterday, the Supreme Court granted cert in Hurst v. Florida (No. 14-7505), to decide whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of Ring v. Arizona,  536 U.S. 584 (2002) (applying Apprendi's reasoning in the capital sentencing context).  For more on the case, see this SCOTUSblog post.

    March 03, 2015
    Supreme Court to Rule on Conspiracy to Extort
    Yesterday the Supreme Court granted cert in Ocasio v. United States (No. 14-361) to decide whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. 

    February 25, 2015
    Supreme Court Holds That a Fish Is Not a "Tangible Object" Under 18 U.S.C. §1519
    Today the Court issued an opinion in Yates v. United States, in which it reversed the judgment of the Eleventh Circuit.  In the plurality opinion Justice Ginsburg wrote, "Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information."  For an analysis of the opinion see this SCOTUSblog post.

    January 26, 2015
    Supreme Court to Hear Challenge to Oklahoma's Lethal Injection Protocol
    After refusing to delay the execution of one of the petitioners, the Supreme Court granted cert last Friday in Glossip v. Gross (No. 14-7955), to decide these questions regarding the constitutionality of Oklahoma's three-drug lethal injection. See these articles in the New York Times and NPR for more on the case. 

    January 20, 2015
    Supreme Court to Rule on Mental State Required for Conviction Under Controlled Substances Analogue Act; Issues Decisions in Two Habeas Cases
    On January 16, 2015 the Supreme Court granted cert in McFadden v. United States (No. 14-378) to decide whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove the defendant knew that the substance constituted a controlled substance analogue.

    The Court also issued a summary reversal in the capital habeas case of Christeson v. Roper (No. 14-6873), ruling that, pursuant to Martel v. Clair, 565 U.S. ___ (2012), the Eighth Circuit improperly affirmed the district court's denial of the petitioner's motion for substitute counsel.

    In addition, on January 13, 2015, the Court held in Jennings v. Stephens (No. 13-7211) that a prisoner who sought federal habeas relief based on three theories of ineffective assistance of counsel and prevailed in the district court on two of them is not required to file a cross-appeal or seek a certificate of appealability on the third theory to rely on it as part of his defense against the state’s appeal.  For an analysis of the opinion, see this SCOTUSblog post.

    January 13, 2015
    Supreme Court Hands Down Opinion on Forced-Accompaniment Provision of Bank Robbery Statute
    Earlier today the Supreme Court issued a unanimous opinion holding that “a bank robber 'forces [a] person to accompany him,' for purposes of [18 U.S.C.] §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance."

    January 13, 2015
    Sentencing Commission Publishes Proposed Guideline Amendments
    On January 9, 2015 the Sentencing Commission voted to publish proposed amendments to the guidelines and issues for comment.  The Commission will hold a hearing in March and will vote on the final amendments in April.

    Proposed amendments and issues for comment include:

    • single sentence rule for career offenders (in cases where one offense is a qualifying offense and one is not)
    • mitigating role under 3B1.2
    • inflationary adjustment to loss tables
    • sophisticated means under 2B1.1
    • victim table in 2B1.1
    • intended loss under 2B.1
    • fraud on the market
    • jointly undertaken activity under 1B1.3
    • hydrocodone under 2D1.1
    • flavored drugs

    January 12, 2015
    Supreme Court to Decide Whether ACCA's Residual Clause Is Unconstitutionally Vague
    On Friday, the Supreme Court ordered supplemental briefing and oral argument in Johnson v. United States (No. 13-7120), a case that was first argued in November, 2014. In the new order, the Court has asked the parties to address: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)(2)(B)(ii), is unconstitutionally vague."
     

    December 15, 2014
    Supreme Court Holds Traffic Stop Based on Mistake of Law Still Proper; Grants Cert on Retroactivity of Miller v. Alabama
    Today, the Supreme Court issued its decision in Heien v. North Carolina (No.13-604), holding that a police officer's traffic stop did not violate the Fourth Amendment even though it was based on a mistake of law. 

    The Court also granted cert last Friday in Toca v. Louisiana (No. 14-6381) to determine (1) Whether the decision in Miller v. Alabama, limiting sentences of life without parole for minors who commit murder, applies retroactively in this case; and 2) Whether a federal question is raised by a claim that a state collateral review court erroneously failed to find a exception?

    In an 8-1 majority opinion, written by Chief Justice Roberts, the Court in Heien explained:

    In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment.

 

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