News for July/August 2009
SUPREME COURT: Noteworthy Decisions
Corley v. United States, No. 07-10441 (April 6, 2009): Petitioner Corley was arrested for assaulting a federal officer at 8 in the morning. After being taken to the hospital for treatment of his minor injuries, he was taken to a local FBI office and informed that he was a suspect in a bank robbery case. Nine and a half hours after his arrest, Corley began to confess to the armed robbery. He was never presented to a magistrate even though the nearest magistrate judges were in the same building as the FBI office. The Court held that voluntary confessions that are taken after an arrest, but during a detention that violated prompt presentment before a judicial officer required by the Federal Rules of Criminal Procedure 5(a) are inadmissible.
Right to Counsel
Montejo v. Louisiana, No. 07-1529 (May 26, 2009): Overruled Michigan v. Jackson, a rule that forbids police from initiating interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment of or similar proceeding. Court reasoned that Michigan was “unworkable” in jurisdictions where counsel was appointed regardless of any request made by the defendant. The Court held that an actual invocation is necessary to trigger the protections of the Sixth Amendment, as opposed to silent acceptance of an appointed counsel or the failure to ask for counsel. In the case at bar, the Court found that the defendant “stood mute at his hearing while the judge ordered the appointment of counsel” and did not assert his Sixth Amendment Rights.
Search and Seizure
Arizona v. Gant, No. 07-542 (April 21, 2009): Respondent Gant was arrested for driving with a suspended license. He was handcuffed and locked in the patrol car before the officers searched his car and found cocaine in his jacket pocket. The Court held that the search of a vehicle where the driver voluntarily left the car and is handcuffed and secured in the back of a police vehicle, is unconstitutional. Warrantless searches of vehicles are only allowed after an arrest where the officer reasonably believes that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest.
Flores-Figueroa v. United States, No. 08-108 (May 4, 2009): Ignacio Flores-Figueroa was convicted on two counts of aggravated identity theft and sentenced to seventy-five months imprisonment. On appeal, Flores-Figueroa argued that he was convicted in error because the government failed to prove that he knew the identification under his possession belonged to someone else. The Court reversed the conviction and held that in cases where the defendant is charged with aggravated identity theft, the government must prove that the defendant knew that the identification used belonged to another person, satisfying the language “knowingly . . . uses without lawful authority, a means for identification of another person.”
Dean v. United States, No. 08-5274 (April 29, 2009): Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm, that he claimed was accidental. On appeal, he asserted that 18 U.S.C. Section 924(c)(1)(A)(iii) required proof that the discharge of the firearm was intentional. The Court held that 18 U.S.C. Section 924(c)(1)(A)(iii), a sentencing enhancement statute, that requires an increase in sentence for discharge of a firearm during the commission of an armed robber does not require proof that the discharge was intentional. The Court reasoned that the language of the statue does not mandate an intent requirement.
FIFTH CIRCUIT UPDATES
Armed Career Criminal Act (ACCA) New Violent Felony
United States v. Harrimon, No. 08-10690, (May 14, 2009): The Fifth circuit held a violation of Texas Penal Code Sec. 38.04(b)(1) (evading arrest or detention by use of a vehicle) is a “violent felony” for the purposes of the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e).
United States v. Theagene, No. 08-50160 (Apr. 15, 2009): District Court erred by denying defendant’s request for an entrapment instruction. Defendant had been indicted and tried on one count of bribing a public official, 18 U.S.C. Sec. 201(b)(1)(c). At trial, defendant’s counsel based their defense strategy in large party on entrapment, but the court did not instruct the jury on the defense. For example, defendant’s counsel submitted a proposed entrapment instruction prior to trial, and explained to the jury in opening statement that the defendant would rely on this defense. Also, witnesses had been vigorously cross-examined as to whether they had manipulated and entrapped the defendant. The Fifth Circuit held that the defendant made out a prima facie case of entrapment and was entitled to have the jury consider his case with a proper instruction on that defense. It was undisputed that the defendant properly requested the entrapment instruction below, and that the defense, if credited by the jury, would preclude a guilty verdict. Accordingly, the trial court erred reversibly by not adequately charging the jury on the theory of entrapment. Thus, the conviction was vacated and remanded for further proceedings consistent with this opinion.
United States v. Doublin, No. 08-30775 (Jun. 22, 2009): In 1996, defendant was convicted of distribution of crack cocaine and sentenced under the mandatory Sentencing Guidelines regime. The district court following United States v. Booker and the Sentencing Commission’s 2007 amendment (generally reducing the base offense levels of crack cocaine offenses by two) re-sentenced the defendant to the minimum sentence under the amended guidelines range. In response, the defendant urged the district court to consider non-guidelines factors and impose a sentence below the guideline minimum. In affirming the district court’s decision, the Fifth Circuit noted that numerous other circuits have considered the issue and eight of the nine have rejected Booker’s application to sentence reductions under 18 U.S.C. Sec. 3582, and have held the Guideline Sec. 1B1.10 limitation to be mandatory.
Timeliness of Application for Post Conviction Relief
Stoot v. Cain, No. 07-31060 (Jun. 8, 2009): Petitioner, a prisoner serving a life sentence in the Louisiana State Penitentiary in Angola, Louisiana, filed an application for a writ of habeas corpus which was subsequently dismissed the by the United States District Court for the Western District of Louisiana. The district court concluded that petitioner’s application is barred by the one-year period of limitation found in the Anti-Terrorism and
Effective Death Penalty Act of 1996. The Fifth Circuit reversed and held that prisoner’s pleading in a state post conviction claim would be deemed filed on the date the prisoner submitted the pleading to prison authorities to be mailed, regardless of whether the pleading actually reached the court.
News for May/June 2009
SUPREME COURT UPDATES
Corley v. United States, No. 07.10441 (Apr. 6, 2009): In a decision addressing the tension between the McNabb-Mallory jurisprudence, which generally renders confessions during detentions which violate the “prompt presentment” rule of Federal Rule Criminal Procedure 5 inadmissible, and 18 U.S.C. sec. 3501 (c) which deems pre-presentment confessions admissible so long as they are “voluntary” and within six hours of arrest, the Court outlined the proper analysis. Specifically, it held that sec. 3501 merely modified the McNabb-Mallory rule but did not supplant it. Under the rule as revised by sec. 3501 (c), when faced with the suppression issue, first, a court must determine whether the defendant confessed within six hours of arrest. 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.” However, if the court finds that the confession occurred before presentment and beyond six hours, then the questions turns to whether the delay was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.
Riviera v. Illinois, No. 07-9995 (Mar. 30, 2009: Denial of peremptory challenge did not violate the Duce Process Clause such that automatic reversal was required. Generally, an error is deemed structural requiring automatic reversal if it rendered the criminal trial fundamentally unfair or unreliable. Here, a first-degree murder defendant sought to strike a juror, who ended up being the jury foreperson. The Court held that where a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, the Court held that it is a matter for the state to address under its own laws, as there is no federal constitutional right to peremptory challenges.
Harbison v. Bell, No. 07-8521 (Apr. 1, 2009): Federally-appointed counsel may represent their clients in state clemency proceedings and are entitled to compensation pursuant to 18 U.S.C. sec. 3599, which provides representation to indigent defendants facing the death penalty. After both state and federal habeas actions were denied. Harbison’s federal public defender sought to represent him in state clemency proceedings. The Supreme Court reversed the Sixth District in holding that the scope of appointed counsel’s duties under sec. 3599(e) permits such representation in that counsel “shall also represent the defendant in such … proceedings for executive or other clemency as may be available to the defendant.” sec. 3599(e).
Puckett v. United States, No. 07-9712 (March 25, 2009): Failure to raise issue of breached plea agreement in the district court level is subjected to “plain error” review. On appeal, Puckett raised for the first time the argument that the government had broker the plea agreement. The Fifth Circuit found that Puckett had forfeited that claim by failing to raise it below and applied Federal Rule of Criminal Procedure Rule 52(b)’s plain-error standard for unpreserved claims. “Plain-error review” involves four prongs: (1) there must be an error or defect that the appellant has not affirmatively waived, (2) it must be clear or obvious, (3) it must have affected the appellant’s substantial rights, and (4) if the three other prongs are satisfied, the court of appeals has the discretion to remedy the error if it seriously affected the fairness, integrity or public reputation of judicial proceedings. The Court held that the question here was not whether plain-error review applies when a defendant fails to preserve a claim, “but what conceivable reason exists for disregarding its evident application.” The Court noted that the breach undoubtedly violated the defendant’s rights, but stated that the defendant had the opportunity to seek vindication of those rights in district court; if he fails to do so, a plain error analysis is appropriate.
Search and Seizure
Arizona v. Johnson, No.07-1122 (Jan. 26, 2009): Pat-down search of backseat passenger did not violate the Fourth Amendment. During the course of a traffic stoop, the officer learned that a rear passenger was from out of town, had been to prison and had a gang affiliation. As a result, she ordered him out of the car for further questioning regarding his gang affiliation. Once out of the car, the officer conducted a pat-down for safety because she thought he might be armed. A gun was discovered. In its unanimous decision, the Court held that the first prong of a Terry stop, a lawful investigatory stop, is met whenever the police lawfully detain a vehicle and its occupants for a traffic violation. The police do not need to have additional further cause to believe an occupant of the vehicle is involved in criminal activity. To justify a pat-down of the driver or a passenger during a traffic stop, however, the police simply must have a reasonable suspicion that the person subjected to the frisk is armed and dangerous.
Vermont v. Brillon, No. 08-88 (Mar. 9, 2009: Sixth Amendment right not violated where defense counsel sought delays. In July 2001, Brillon was arrested, then, nearly three years later, in June 2004, he was tried. During the intervening time, at least six different attorneys were appointed to represent him. In applying the balancing test of Barker v. Wingo, 407 U.S. 514 (1972), the Court found that the Vermont Supreme Court erred in attributing delays to the State where several assigned counsel failed to move Brillon’s case forward and found that it tailed to adequately assess Brillon’s own disruptive behavior in the overall balance. Moreover, the Court held that assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are generally attributable to the clients they represent. The Court noted that delays resulting from a systemic breakdown in the public defender system could be charged to the State but found that nothing in the record suggested that institutional problems caused any part of the delay in Brillon’s case.
United States v. Hayes, No. 07-608 (Feb. 24, 2009): “Domestic relationship” not necessary element in predicate offense for conviction on 18 U.S.C. 922(g)(9), which criminalizes possession of a firearm by persons convicted of “misdemeanor crimes of domestic violence.” Here, the Court held that the government need only prove that the existence of a domestic relationship beyond a reasonable doubt. In other words, “it suffices for the Government to charge and prove a prior conviction that was, in fact, for “an offense … committed by” the defendant against a spouse or domestic victim.”
SUPREME COURT WRIT GRANTS
Maryland v. Shatzer, No. 08-680 (cert. granted Jan. 26, 2009): Question presented: Is the Edwards v Arizona prohibition against interrogation of a suspect who has invoked the Fifth Amendment right to counsel inapplicable if, after the suspects asks for counsel, there is a break in custody or a substantial lapse in time (more than two years and six months) before commencing reinterrogation pursuant to Miranda?
Padilla v. Kentucky, No. 08-651 (cert. granted Feb. 23, 2009): Questions presented: (1) whether the mandatory deportation consequences that stem from a plea to trafficking in marijuana, an “aggravated felony” under the INA, is a “collateral consequence” of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise; and (2) Assuming immigration consequences are “collateral,” whether counsel’s gross misadvice as to the collateral consequence of deportation can constitute a ground for setting aside a guilty plea which was induced by that faulty advice.
Johnson v. United States, No. 08-6925 (cert. granted Feb 23, 2009: Questions presented: (1) Whether, when a state’s highest court holds that a given offense of that state does not have as an element the use or threatened use of physical force, that holding is binding on federal courts in determining whether that same offense qualifies as a “violent felony” under the federal Armed Career Criminal Act, which defines “violent felony” as, inter alia, any crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” and (2) Whether this court should resolve a circuit split on whether a prior state conviction for simple battery is in all cases a “violent felony” – a prior offense that has as an element, the use, attempted use, or threatened use of physical force against the person of other. Further, whether this court should resolve a circuit split on whether the physical force required is a de minimis touching in the sense of “Newtonian mechanics” or whether the physical force required must be in some way violent in nature – that is the sort of force that is intended to cause bodily injury, or at a minimum, likely to do so.
5TH CIRCUIT UPDATES
United States v. Tirado-Tirado, No. 07-50670 (Mar. 19, 2009): Improper admission of videotaped deposition violated the Sixth Amendment because witness was not “unavailable” for Confrontation Clause purposes if the “prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Ohio v. Roberts, 448 U.S. 56, 74 (1980). The Court recognized that “good faith” in the context of a Confrontation Clause analysis is an objective standard which looks at the reasonableness of the government’s efforts to secure a witness. Here, the Court found that the government’s efforts did not amount to “good faith” where it failed to make solid arrangements, such as serving him with a subpoena, prior to the witness’ deportation and delayed making any contact with the witness until eight days before the trial date. Thus, the Court held that the government’s failure to “make such minimal efforts demonstrates a lack of good faith on the part of the government” and therefore, vacated the judgment and remanded the case for a new trial.
United States v. Johnson, No. 08-10120 (Feb. 10, 2009): District court improperly applied a cross-reference, therefore defendant’s sentence vacated and remanded for resentencing. Defendant pled guilty to aiding and abetting possession of a firearm by a convicted felon. Section 2K2.1 of the United States Sentencing Guidelines, which outlines the penalty for various firearm offenses, includes a cross-reference that substitutes the guideline sentence of another offense if the firearm was used “in connection with” that other offense. The cross-reference at issue states, “If the defendant … transferred a firearm … with knowledge of intent that it would be used or possessed in connection with another offense, apply … sec. 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above …” U.S.S.G. sec. 2K2.1(c)(1) (emphasis added). Section 2X1.1, in turn, directs the district court to sec. 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder). The Court found that the application of the cross-reference turned on the meaning “knowledge or intent” requirement. The Court held that it is not enough that the defendant merely know that the firearm is able to facilitate another offense, rather the defendant must know that it will be used in that offense.