June 2013 Archives

June 28, 2013

Short Wins - Immigration Fraud and Bad Prosecutor Edition

I'm writing this from the Fourth Circuit Judicial Conference. Here's my brief recap.

Today, Brian Stevenson, a tremendously cool death penalty lawyer told the assembled group that justice for poor folks and people of color is going to be more likely if decision makers are in closer proximity to poor folks and people of color.

Yesterday, there was a talk about how to improve your home security, to keep any one who wants to get in proximity to you from doing so.

There's something for everyone.

Anyway, it's been a good week in the circuits.

Here are my two favorite cases from the last week:

In United States v. Tavera the Sixth Circuit had some trouble disclosing statements that tended to show that the defendant was not actually guilty. Here's the quotable gem: "This case shows once again how prosecutors substitute their own judgment of the defendant's guilt for that of the jury."

Also, in United States v. Rojas the Eleventh Circuit kicked a marriage fraud conviction on statute of limitations grounds.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Gillenwater, Ninth Circuit: The district court erred in finding appellant incompetent to stand trial because, at the competency hearing, appellant was denied his constitutional right to testify. This error was not harmless because the court did not know what the appellant would have testified about.

2. United States v. Hernandez-Meza, Ninth Circuit: Appellant's conviction for illegal reentry was dismissed because it was in violation of the Speedy Trial Act. Further, the court abused its discretion when it let the government reopen its case-in-chief to present evidence that had not been produced in discovery to rebut appellant's defense. The case was remanded for a hearing to determine whether the prosecution willfully failed to disclose the evidence and, if so, to impose sanctions.

3. United States v. Rojas, Eleventh Circuit: The trial court abused its discretion in denying appellant's motion to dismiss his marriage fraud indictment on statute of limitations grounds. Because that crime is complete on the date of the marriage, the government's indictment was barred by the five-year limitations period. The trial court's ruling was reversed and the case remanded.

4. United States v. Tang, Fifth Circuit: Appellant pled guilty to failing to register as a sex offender after traveling in interstate commerce. He appealed some conditions of his supervised release, including a ban on Internet use and a restriction on dating people with minor children. The internet restriction was vacated because it was not reasonably related to the factors in 18 U.S.C. § 3553(a) and involved a greater deprivation of liberty than reasonably necessary. The dating restriction was vacated because that restriction from the written judgment was not part of the oral pronouncement of sentence.

5. United States v. Tavera, Sixth Circuit: Appellant, along with a co-defendant, was convicted of participating in a drug conspiracy. During plea negotiations, the co-defendant told the government's lawyer in appellant's case that appellant had no knowledge of the conspiracy. The prosecutor never disclosed these statements to appellant. The prosecutor's failure to disclose the statements resulted in a due process violation. As a result, the court vacated the conviction and remanded for a new trial.

6. United States v. Valerio, Eleventh Circuit: The trial court erred in denying appellant's motion to suppress evidence that led to his arrest for growing marijuana because the officers' Terry stop and subsequent seizure was unauthorized by the Fourth Amendment. Appellant's conviction was vacated.

7. United States v. Vazquez, Ninth Circuit: Appellant was convicted of possession with intent to distribute methamphetamine and sentenced to 144 months. He received an additional point in his guidelines range calculation based on his conviction for "driving while license suspended." That conviction should not have been counted because he was not sentenced to probation for more than one year or to prison for at least 30 days. The sentence was vacated and the case remanded.

June 17, 2013

Short Wins - Forced Medication and Discovery Issues Edition

There's a great diversity of cases where defendants won in the federal circuit's last week.

Probably the most significant - in terms of it's implication for other cases, is the discovery dispute in United States v. Muniz-Jaquez from the Ninth Circuit.

Though, of course, it's still from the Ninth Circuit.

And there's now interesting pro-defendant competency and forced medication law from the Fourth Circuit in United States v. Chatmon

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chatmon, Fourth Circuit: After he was indicted for conspiracy to distribute crack and heroin, appellant was diagnosed with paranoid schizophrenia and deemed incompetent to go to trial. Later, the court granted the government's motion to forcibly medicate appellant to restore him to competency. This was error because the court did not discuss any less intrusive alternatives in granting the motion. The order was vacated and the case remanded.

2. United States v. Malki, Second Circuit: After appellant was convicted of retaining classified documents without authorization and sentenced to 121 months in prison, he successfully appealed and was resentenced. At resentencing, the court erred by engaging in a de novo resentencing. Because the remand was for limited, not de novo, resentencing, the case was remanded again for resentencing.

3. United States v. Muniz-Jaquez, Ninth Circuit: Appellant was convicted of being a deported alien in the United States. The trial court abused its discretion in excluding dispatch tapes that could have assisted in appellant's defense or could have helped him challenge adverse testimony at trial. Appellant's conviction was reversed and the case remanded for the tapes to be produced and for the court to address any motions the tapes may generate.

4. United States v. Rothstein, Eleventh Circuit: Appellant, who was convicted of running a Ponzi scheme through his law firm, placed the fruits of his scheme into his firm's bank accounts, where they were commingled with the firm's receipts from legitimate clients. The court erred in ordering the forfeiture of some of the accounts as proceeds of the scheme because the commingled proceeds could not be divided without difficulty, and forfeiture should have been sought under substitute property provisions. Further, the court erred in forfeiting to the government other properties without resolving the issue of whether the illicit funds were used to acquire them. Remand was required to resolve that issue.

5. United States v. Windless, Fifth Circuit: Appellant knowingly failed to register as a sex offender and pled guilty to the same. He was sentenced to supervised release and two conditions were imposed: (1) participation in a mental health treatment program; and (2) no direct or indirect conduct with children under 18. The court erred in relying at sentencing on three "bare arrest records" - records that did not contain any information about the underlying facts or conduct that led to the arrest - in imposing the conditions. Also, the second condition was overly broad. For these reasons, the first condition was vacated and the second reversed, and the case remanded for resentencing.

June 13, 2013

Short Wins - Assault on An Officer and the Ex Post Facto Clause

There were three wins in the federal circuits last week, discussed below. The most interesting is probably United States v. Zabawa which gives a fair shake at sentencing to someone who assaulted an officer (who headbutted him).

It reminds me of a joke Bill Clinton liked to tell during the impeachment:

A kid comes home from school with a black eye. His mom asked what happened. The kid says, "Mom, it all started when the other guy hit back."

Probably the bigger news, though, is the Supreme Court's decision on Monday in Peugh v. United States.

The short version - the Ex Post Facto clause applies to the sentencing guidelines.

For the longer version, please check out my coverage on Above the Law here.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Reed, Fifth Circuit: Appellant was convicted of trafficking in counterfeit goods. After voluntarily dismissing his appeal, he filed a 28 U.S.C. § 2255 motion seeking to vacate his conviction and sentence for ineffective assistance of counsel, among other grounds. The district court denied the motion and denied a certificate of appealability. On appellant's motion, the Fifth Circuit granted a certificate of appealability only on the issue of whether the district court erred in denying, without having an evidentiary hearing, appellant's ineffective assistance claim. The Fifth Circuit vacated the district court's order on that issue only and remanded for a hearing.

2. United States v. Whatley, Eleventh Circuit: Appellant was convicted of robbing several banks. During his sentencing, the district court erred when it applied a four-level enhancement for abduction of the bank employees because appellant ordered them to move around to different areas within the banks. The case was remanded for resentencing with instructions for the court to apply the two-level enhancement for physical restraint of the employees.

3. United States v. Zabawa, Sixth Circuit: While in federal custody, appellant assaulted an officer, who responded by headbutting appellant, which left the officer with a cut over his eye. As a result of this interaction, appellant was convicted of assaulting a federal officer under 18 U.S.C. § 111(a)(1) and (b). Because § 111(b) specifies that the person must "inflict[]" the predicate injury to the officer, rather than cause it, appellant's conviction under (b) was improper: the officer himself admitted that his injury might have resulted from his headbutt to appellant, rather than from any force appellant applied to him. As a result, appellant's conviction under § 111(b) was reversed.

June 5, 2013

Short Wins - Slow News Day Edition & DNA Collection News

Last week, with the Memorial Day holiday, was a slow week for wins in the federal circuits- there's only one short win.

Monday, of course, was a huge day for the government's ability to collect massive amounts of data about the citizenry. I mean, of course, the Supreme Court's opinion in Maryland v. King.

My coverage at Above the Law is available here (it's dissent heavy).

And, if you really are patient and eager for more of my take on the case, I was on Huffington Post TV talking about it (you can scroll past the technical issues, which, I swear, get resolved).

To the victory!

1155650_berlin_siegessule.jpg1. United States v. Joseph, Ninth Circuit: Appellant pled guilty to two counts of possession of contraband and one count of providing contraband to a fellow inmate in violation of 18 U.S.C. § 1791. One of the possession counts and the providing contraband count arose out of a December 2010 incident, while the remaining count arose out of conduct in February 2011. The court imposed consecutive sentences for each count. Because the court plainly erred in interpreting § 1791(c) to require consecutive sentencing for controlled substances offenses that arose out of separate items of drugs, the court vacated appellant's sentence and remanded for resentencing.