California Criminal Lawyer Blog

In 2008, University of San Diego point guard Trumaine Johnson was at the top of his game. He led the USD Torero's basketball team to the NCAA playoffs under new coach Bill Grier.

But Johnson's tenure at USD was marked with significant instances of racial discrimination. On March 9, 2010, Johnson filed suit against USD, Coach Grier, and the San Diego Police Department (and others) for racial profiing/racial discrimination based on two instances where Johnson was wrongfully accused of crimes. After the second instance, in which Johnson was tacked, kneed in the back, pepper sprayed and arrested for a crime he did not commit and a crime the prosecutors declined to prosecute, he was let go from the Toreros.

For the San Diego City Beat articles, click HERE.

For the San Diego Union Tribune article, click HERE:

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Posted In: Bad Cop - No Donut , Civil Rights , Federal Cases , In The News , Police Misconduct Cases

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BRISCOE V. VIRGINIA
Decided: 1/25/10
No. 07-11191
Full Text: http://www.supremecourtus.gov/opinions/09pdf/07-11191.pdf

CONFRONTATION CLAUSE (Signed certificates prepared by forensic analysts
are testimonial for purposes of the Confrontation Clause)

The United States Supreme Court issued a per curiam decision vacating the
judgment of the Supreme Court of Virginia and remanding the case for
further proceedings consistent with its recent opinion in Melendez-Diaz v.
Massachusetts.

Briscoe was arrested for possession of cocaine. At trial, he objected to the admission of analysis certificates used to prove that the substance he possessed was cocaine. Briscoe claimed the right to confront the forensic analysts that produced the certificates. Procedural safeguards in Virginia allow defendants to call forensic analysts as witnesses. Briscoe argued
that the safeguard did not adequately satisfy his right to confront the witnesses against him as guaranteed in the Confrontation Clause. The Supreme Court of Virginia held that it did not need to determine whether the certificates were testimonial under Crawford. Testimonial statements
subject to the Confrontation Clause will not be admissible in court unless the person who made the statement testifies in court and is subject to cross examination, or if the defense had a prior opportunity to cross examine the witness.

The Court vacated the Virginia Supreme Court decision and remanded the case for proceedings consistent with Melendez-Diaz, in which the Court held that affidavits such as forensic analysis certificates are testimonial statements under Crawford. The Confrontation Clause requires the opportunity for cross examination regarding these statements.

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Posted In: California Cases , Dirty Tricks in the Crime Lab , Evidence , Federal Cases , In The News

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Well, it's about time the United States Department of Justice stepped and authored a new memorandum for federal prosecutors to follow regarding discovery issues. But this begs the question: Why haven't prosecutors followed been following the law (and their oaths of office to uphold the Constitution), automatically?

Deputy Attorney General David W. Ogden issued three Memorandum to DOJ prosecutors presumably intended to remedy some of the setbacks and debacles the Department suffered last year as a result of serious discovery violations in federal felony prosecutions.

The subject of one of the Memos is “Guidance for Prosecutors Regarding Criminal Discovery.” The second Memo reference is “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group.” Finally, a separate Memo is address to all DOJ litigating components and all U.S. Attorneys.

Taking the "Memo to the U.S. Attorneys and DOJ Components" first, Odgen summarizes that he had convened a working group to address DOJ policies and practices regarding criminal discovery issues. Odgen references that he is sending to all DOJ trial attorneys and AUSAs a memo containing Guidance For Prosecutors Regarding Criminal Discovery that prosecutors should follow to ensure that discovery obligations are met in all future cases. Interestingly, Odgen directs that each U.S. Attorney’s Office develop a discovery policy consistent with the law and local rules and practices. That policy must be in place by March 31, 2010.

Again, again again, why must Ogden issue a memorandum containing guidance for federal prosecutors regarding criminal discovery? I mean, it's the law. FOLLOW IT. Clearly this is an issue of prosoecutors not following the rules of ethics. They know the law. I mean, really....

The “Guidance For Prosecutors Regarding Criminal Discovery” Memo sets out detailed steps prosecutors are to follow regarding discovery. The six page Memo first advises that the prosecutors must determine who is a member of the “Prosecution Team” for the purpose of determining what documents must be reviewed for disclosure.

The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.

The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”

The Guidance Memo reminds prosecutors that discovery within DOJ is covered by the U.S. Attorney’s Manual Section 9-5.001, which is broader than what the law requires and that if a prosecutor chooses to follow that broader course, “defense counsel should be reminded that the prosecutor is electing to produce discovery beyond what is required . . .” The Memo then addresses the scope, timing and form of discovery disclosures, but cautions that, “[p]rosecutors should never describe the discovery being provided as ‘open file.’”

Finally, the Guidance Memo counsels that the prosecutor should make a good record regarding the disclosures.

The “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group” Memo reminds prosecutors of the words of Justice Sutherland that it is the prosecutor’s duty is “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). This Memo informs prosecutors of the establishment of the Guidance Memo set out above and that each U.S. Attorney’s Office shall have a “discovery coordinator.” In addition, DOJ has:

• Created an online directory of resources pertaining to discovery issues that will be available to all prosecutors at their desktop;
• Produced a Handbook on Discovery and Case Management similar to the Grand Jury Manual so that prosecutors will have a one-stop resource that addresses various topics relating to discovery obligations;
• Implemented a training curriculum and a mandatory training program for paralegals and law enforcement agents;
• Revitalized the Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information recovered as part of federal investigations;
• Created a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.

Continue reading "FEDERAL CRIMINAL DEFENSE: U.S. DEPARTMENT OF JUSTICE ISSUES NEW MEMORANDUM ON PROSECUTORIAL DISCOVERY " »

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Posted In: Federal Cases , In The News

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If there is a claim of outrageous government misconduct in your federal criminal case, and you are aware of the conduct, you must raise it in a pretrial motion. Essentially, use it, or lose it.

This is already the position of the 2nd, 3rd, and 8th circuits, and it is now the position of the 9th Circuit Court of Appeal.

In this case, an undercover agent of the ATF used a confidential informant to infiltrate a crew doing alleged home invasions. The agent supposedly masterminded the plan for a home invasion that was thwarted on the day of the planned acts. The defendant knew about the agent's involvement, but failed to raise the motion pretrial, at trial, or even after trial.

The 9th Circuit reasoned that such claims go to the tainting of the prosecutorial function, and must be presented in time to fully air out the allegations. This, of course, depends on the defendant's awareness.

If facts come out after trial has begun, or there is some excuse for not raising it pretrial, then the 9th Circuit can consider it. That is not the case here.

The 9th Circuit also finds no error in the actions of the district court in dismissing a juror who said he was to be impartial, and could not decide the facts on the evidence. The defendant was given a chance to possibly ask the juror "why" or delve deeper into the reasons, but he declined. The 9th found the challenge to the mandatory minimum of life to be foreclosed by precedent.

U.S. v. Mausali, No. 08-50062 (1-11-10).

Continue reading "CALIFORNIA FEDERAL DEFENSE ATTORNEY: IF YOU SEE, SMELL OR SUSPECT MISCONDUCT, YOU MUST RAISE IT IN A PRE-TRIAL MOTION. USE IT, OR LOSE IT." »

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United States Supreme Court Chief Justice Samuel Alito lobbied hard to gain enough colleagues to vote to hear a DUI case out of Virginia where the cop pulled over a driver based solely on the tip from an anonymous tipster that he saw the driver "swerve once." The cop, however, saw no bad driving himself.

That's not a good enough case to make a majority of the U.S. Supremes take it on. In fact, it is a major win for the Constitution. That a cop should be able to suspend the Fourth Amendment rights of a citizen based on an anonymous tipster is ludicrous. So implied the remainder of the justices that declined Alito's push to hear this ridiculous case.

CLick HERE for the news story on the case.

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Posted In: Bad Cop - No Donut , DUI Defense , Federal Cases , In The News , Search & Seizure Cases , U.S.

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THE RIGHT TO A PARTISAN DEFENSE EXPERT

the Ninth Circuit reverses this death case from Arizona for ineffective assistance of counsel (IAC). There's a lot about the failure to investigate. But here's what is of note.

The court appointed an expert, who helped the defense a lot. The Ninth Circuit finds IAC for failure to get a "partisan expert," that is, an expert confidential to the defense, with an obligation to further the interests of the defense, and who would assist in the evaluation, preparation, and presentation of the defense.

There's an excellent discussion here of your right to such an expert, which I hope we can use to get the experts we need, in all our cases, not just death penalty cases.

Jones v. Ryan; 2009 DJ DAR 14456; DJ, 10/6/09; 9th Cir. Fed C/A

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Posted In: California Cases , Defenses , Evidence , Federal Cases

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Supreme Confrontation: Impact of the Court’s lab report decision
Defenders hail ruling, prosecutors say drug offenders will go free
By Kimberly Atkins and David E. Frank
Staff writers
Published: June 26, 2009

WASHINGTON - The Supreme Court ruling requiring criminal lab report analysts to be available at trial for cross-examination was hailed by defense attorneys who say it will help protect against wrongful convictions.

But prosecutors say that the decision in Melendez-Diaz v. Massachusetts will tax their already strapped resources, and ultimately lead to more cases against alleged drug offenders being dropped altogether.

“Because of this ruling and the practical consequences of requiring chemists to testify in all of these trials, there are going to be cases called in courtrooms that end up getting dismissed, and that’s frustrating,” said Massachusetts Attorney General Martha Coakley, who argued the case and urged the Court to allow the reports to be admitted on their own.

Instead, in a 5-4 ruling, Justice Antonin Scalia wrote that forensic reports, commonly used in the prosecution of drug and other offenses, are subject to the Confrontation Clause, meaning that the technicians who prepare them must be available at trial to be cross-examined by the defense.

Scalia wrote that such reports fall within the “core class of testimonial statements” that are subject to the Confrontation Clause under the Court’s rulings in the 2004 case Crawford v. Washington and the 2006 case Davis v. Washington.

“In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment,” Scalia wrote. “Absent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.”

Justice Anthony Kennedy penned a strong dissent joined by three other justices in the closely-split ruling.

Kennedy said that the majority ignored nearly a century of criminal jurisprudence where such reports were allowed in most of the nation’s courts as a matter of course.

“This rule has been established for at least 90 years,” Kennedy wrote. “It extends across at least 35 states and six federal courts of appeals. Yet the court undoes it based on two recent opinions that say nothing about forensic analysts.”

Good news for defendants
Defense attorneys said the right to cross-examine lab report analysts is crucial, and noted that the opinion itself states that “serious deficiencies have been found in the forensic evidence used at criminal trials” and that cross-examination will “weed out not only the fraudulent analyst, but the incompetent one as well.”

“The Supreme Court rejected the notion that forensic science is always neutral and based on solid science,” said Peter Neufeld, co-director of the Innocence Project in New York.

“The Court said our criminal justice system can’t rely blindly on forensic analysts’ reports because they may distort results to favor the prosecution.”

Defense attorney groups and Scalia noted that the need to protect against inaccurate forensic reports was supported by a report earlier this year from the National Academy of Sciences, which said that most crime labs are administered by law enforcement agencies. The academy has also asked Congress to create a new agency to set and enforce uniform standards for forensic analysts to follow in preparing reports for court.

Jeffrey T. Green, a partner in Sidley Austin’s Washington office, who wrote an amicus brief on behalf of the National Association of Criminal Defense Lawyers, said the ruling will not bring the parade of horribles prosecutors claim.

“At the end of the day, we will have a better system of justice and rules” because of Melendez-Diaz, said Green.

He also said that the rules for admitting evidence are no different in other kinds of cases. “In traffic cases, the prosecutor can’t just introduce [evidence] of the police radar,” Green said. “The officer who made the stop has to show up.”

However, Coakley said that the low numbers of crime lab technicians and tight budgets make drug prosecutions a very different matter.

“These chemists who work in the labs and produce the certificates are overburdened as it is,” she said. “Now as a result of this ruling [they] are going to have to take time out of their day to travel around the state and sit around for hours or days in individual courthouses waiting to see if the case gets called. That’s simply not practical."

BLOGGER'S NOTE: Prosecutors actually made the argument here that to require lab analysts to testify - so that people accused of crimes by the government actually get a fair chance to test the evidence - would be too much of a burdenon the labs and prosecutors. Boo hoo. Follow the rules, boys. If you want to prosecute, you'd better be able to provide the evidence for a thorough cross examination. Well done, Supremes.

Continue reading "UNITED STATES SUPREME COURT REQUIRES LAB ANALYSTS TO TESTIFY IN CRIMINAL CASES-A MAJOR VICTORY FOR THE DEFENSE" »

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Posted In: Civil Rights , DUI Defense , Federal Cases , In The News

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The defendant here wants DNA testing, but asked for it in the context of a civil rights lawsuit. The majority says that the defense seeks a free-standing constitutional right to DNA testing, and they aren't creating one. So big deal.

Of note is a concurring opinion, signed by three justices, saying that if the defendant decides not to do DNA testing pre-trial for tactical reasons, that defendant has no constitutional right to DNA testing post conviction.

But check out the dissent by Stevens, which clearly shows that the majority's position here is nonsense.

District Attorney v. Osborne; 2009 DJ DAR 8847; DJ, 6/19/09; US Supremes

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This case involves a criminal prosecution arising from the Enron scandal. The jury acquitted the def. on some counts and hung on others. Does double jeopardy bar retrial on the hung counts? The U.S. Supremes rule, "Thus, if the possession of insider information was a
critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element."

Yeager v. U.S.; 2009 DJ DAR 8878; DJ, 6/19/09; US Supremes

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A guy walks into a bar in Ramona...By Greg Moran
June 4, 2009, 6:19 p.m.

...and after a few minutes, a dozen different kinds of cross-eyed ugly breaks out. Allegedly.

That's the gist of a rather hair-raising complaint filed in federal court this week by Allen Baker of Ramona and James Playford. They sued the county, the sheriff's department and five deputies for using excessive force, assault and civil rights violations all stemming from an incident at Molly Malone's bar last July. Baker said he had seen deputies at the bar several times a week, fraternizing with women and sometimes handcuffing them and placing them in the back of the squad car. For fun. Apparently. Photos were taken and one of the young women even posted it on her MySpace page, according to the complaint, and captioned it "Bong loads in a cop car."

Well, Baker approached two members of the local constabulary, deputies Colby Hodge and Jeffrey Guthrie, and asked if they were there to pick up girls. They told him to shut up or he would be arrested, which triggered a First Amendment defense kind of response from Baker ("Plaintiff Baker asked Hodge and Guthrie if freedom of speech is illegal" the suit dryly recounts.) Baker says he was put under arrest, there in the bar, and then the suit contends things went from bad to very much worse very quickly.
The suit says he was hit with flashlights, tasered, kicked, beaten and put in a choke hold until he was unconscious. At one point he contends he lost control of his bowels. Taken to jail he was charged with resisting arrest and being drunk in public. But at a preliminary hearing last September Judge Louis Hanoian dismissed one of the resisting charges and reduced a similar charge to a misdemeanor. Eventually Baker pleaded guilty to a single misdemeanor of disturbing the peace.

The incident got pretty good play on local television, partly because of the photos. A video of some of the incident is posted on YouTube. The person who took the video, Playford, contends in the suit that when he showed up at court for a hearing in Baker's case he was harassed by other deputies and was so intimidated he said he would not testify for Baker. The suit alleges a conspiracy among the deputies and faults the county for not investigating the matter.

It's not a pretty picture described by attorney Mary Prevost in the lawsuit, but these police misconduct cases are no walk in the park. There's a way to go here, but there is also lots of intriguing material. We're working on setting up a link to the suit, and are awaiting the response from the county.

Continue reading "SAN DIEGO MAN SUES RAMONA SHERIFF's DEPUTIES FOR BRUTAL ASSAULT AND BATTERY" »

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This US Supreme Court win turns out to help us very little. But it introduces a pretty cool term:
"antisuperfluousness canon." That's the rule (aka canon) that statutes shouldn't be construed so as to render language in the statute superfluous.

There's a federal statute requiring that a suspect arrested on a federal crime be brought to a magistrate within 6 hours. In McNabb (318 U.S. 332 (1943)), the Supremes said that even a voluntary confession obtained more than 6 hours after arrest from a suspect had to
be suppressed.

In 1968, the Congress passed a law intended to overrule Miranda (that attempt was rejected in Dickerson, 530 U.S. 428), and they stuck in a provision saying that a confession obtained within the 6 hours didn't have to be suppressed.

The US Supremes here (5-4) say that, yep, a confession within the 6 hours is OK, subject to Miranda and a finding of voluntariness. But a confession obtained after 6 hours
still has to be suppressed. Impact on California law? None. The court makes it clear that this is all federal procedural stuff.

Corley v. U.S.; 2009 DJ DAR 5023; DJ, 4/7/09; US Supremes

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The Illinois trial court refused to allow defense counsel to exercise a peremptory challenge. This could happen in California for the same reason: the judge found that exercise of the challenge would violate Batson (476 U.S. 79) as being discriminatory. But the trial judge's
refusal to allow the challenge was wrong.

The U.S. Supremes have previously ruled that peremptory challenges are not required by the U.S. Constitution. Here, they hold that state law governs the consequences of improper denial of peremptory challenges; such an improper denial is just not a federal due process violation.

Rivera v. Illinois; 2009 DJ DAR 4822; DJ, 4/1/09; US Supremes

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Persons convicted of "misdemeanor crime of domestic violence" are prohibited from possessing firearms. It covers misdemeanor batter when victim was in relationship specified in 18 U.S.C. section 921(a)(33)(A).

Although the domestic relationship must be established beyond a reasonable doubt in the firearms possession prosecution, it need not be a defining element of the predicate misdemeanor offense.

In other words, the underlying misdemeanor need not have been charged as a crime of domestic violence, as long as the government proves at the firearm possession trial that in fact it was.

United States v. Hayes (U.S. Sup. Ct., 2/24/09, 07-608) 09 C.D.O.S. 2199

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Although government must prove existence of a quid pro quo to support conviction for Hobbs Act extortion, quid pro quo need not be explicitly stated. Here, the instructions received were sufficient.

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006

(Hannibal Lecter: If I help you, Clarice, it will be "turns" for us too. I tell you things, you tell me things. Not about this case, though. About yourself. Quid pro quo. Yes or no? [pause] Yes or no, Clarice? Poor little Catherine is waiting.
Clarice Starling: Go, doctor)

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Impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false because it contradicted by other evidence. (United States v. Castillo (9th Cir. 1999) 181 F.3d 1129, 1132.)

It is an exception to the collateral fact rule (Fed. Rules of Evid. 608(b)). The fact to be contradicted must be material, and must have arisen during the direct examination of the witness to be contradicted. District court properly limited the testimony to two Witnesses: "Allowing the defendant to call the mayor, members of the city council, judges, and other public officials to testify about extraneous events would have created a huge sideshow to what was already a trial of notoriety. None of the proffered testimony was central to the core issues of the trial, and thus it is precisely the type of evidence that the collateral fact rule is designed to exclude."

United States v. Kincaid-Chauncey (9th Cir., 2/20/09, 06-10544) 09 C.D.O.S. 2006

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United States v. Renteria (9th Cir., 2/20/09, 07-50471) 09 C.D.O.S. 2029

A Defendant could be convicted of malciously damaging a synagogue, in violation of 18 U.S.C. section 844(i), because a gift shop and daycare center had nexus to interstate commerce.

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The 9th circuit here strikes down a 3-Strikes sentence as being in violation of the cruel and unusual punishment clause!

The crime here is failure of a registered sex offender to re-register within 5 days of his birthday. The court stresses that the defendant had been registering, hadn't moved, and the police knew where he was all the time. They evaluate the crime as pretty minimal.

The defendant has many serious violent and sex offenses, but they say that nothing about THIS crime shows any recidivist tendencies. Thus, they conclude that 28 years to life
violates the cruel and unusual clause.

AND THAT, MY FRIENDS, IS A GREAT START!

Gonzalez v. Duncan; 2008 DJ DAR ; DJ, 12/ /08; 9th Cir. Fed C/A
http://www.tinyurl.com/7ohl4n

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: 3-STRIKES SENTENCE STRUCK DOWN AS CRUEL AND UNUSUAL PUNISHMENT" »

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Posted In: California Cases , Federal Cases , Sentencing

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The Sixth Circuit United States Court of Appeal heard oral argument in June on the issue of whether or not "acquitted conduct" may be used to enhance a sentence after a subsequent criminal conviction. On its face, the practice seems patently unconstitutional.

For more on the matter, including references to recently published article, see:
http://sentencing.typepad.com/sentencing_law_and_policy/

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The Plaintiff's claim that he was hit in the face with handcuffs while already handcuffed stated a claim for excessive force. Torres-Caraballo v. Municipality of Yauco, 2008 U.S. Dist. LEXIS 56166 (D. P.R. July 23, 2008)

Here, the Plaintiff did not even oppose the police officer's motion to dismiss, and the court still granted it!

Continue reading "POLICE BEAT CUFFED SUSPECT-VIOLATE CIVIL RIGHTS" »

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In this precedent-setting California Civil Rights case, the Plaintiff's claim arose with his arrest under Wallace v. Kato and was not barred by Heck v. Humphrey. Wallace applies even though all the facts occurred before it was decided. (The court also discusses the tension between Wallace and Heck.) Kamar v. Krolczyk, 2008 U.S. Dist. LEXIS 55975 (E.D. Cal. July 16, 2008):

The court finds that the recent Supreme Court case of Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L. Ed. 2d 973 (2007), has effectively overruled Harvey v. Waldron, 210 F.3d 1008 (9th Cir. 2000)].

In Wallace, the plaintiff contended that any civil rights action that would impugn his anticipated future conviction could not be brought until that conviction occurs and is set aside. Wallace, 127 S.Ct. at 1098. The Supreme Court refused to embrace what the Supreme Court entitled a "bizarre extension of Heck." Id.

In Wallace, the Supreme Court overruled those circuits that had applied the Heck to bar Section 1983 claims when criminal charges were only pending. The "Heck rule for deferred accrual is called into play only when there exists 'a conviction or sentence that has not been ... invalidated,' that is to say, an 'outstanding criminal judgment."' Id. at 1097-98 (quoting Heck, 512 U.S. at 486-87).

To avoid a concurrent Section 1983 action and criminal action, the Supreme Court held that if a plaintiff files a false arrest claim or any other claim related to rulings that will likely be made in a pending or anticipated criminal trial, "it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended." Wallace, 127 S.Ct. at 1098.

The Supreme Court directly addressed the collision that would occur in some civil rights cases between the statute of limitations, the Heck bar, and a potential Heck bar. The Supreme Court recognized that some civil rights actions accrue "before the setting aside of-indeed, even before the existence of-the related criminal conviction." Wallace, 127 S.Ct. at 1098. This fact pattern "raises the question whether, assuming that the Heck bar takes effect when the later conviction is obtained, the statute of limitations on the once valid cause of action is tolled as long as the Heck bar subsists." Id. The Supreme Court declined to adopt such a federal tolling rule. ...

Continue reading "CIVIL RIGHTS PLAINTIFF CAN FILE SUIT WHILE CRIMINAL CASE IS PENDING" »

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In an en banc decision, the 9th Circuit Court of Appeal (Fisher) upheld a district court's discretion, pursuant to Fed. R. Crim. P. 2 and 16, and its inherent authority, to order disclosure of the government's witness list and to hold the government to it.

The court can do so to allow for orderly trial.

The 9th Circuit therefore joins other circuits that have so held. The 9th Circuit also spent a lot of time discussing whether the governement could appeal the district court's order interlocutorily by only citing the barest of justifications ("not for delay" and "substantial proof" is material) under 3731. The 9th Circuit decides that following the sparse language, so long as it is certified by the U.S. Attorney is good enough. Concurring in judgment, Hawkins, Pregerson and Wardlaw would require more than the government's "say so."

U.S. v. W.R. Grace et al., No. 06-30192 (5-15-08) (en banc).

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Posted In: Federal Cases , Prosecutorial Misconduct

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The United States Supreme Court in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights. The 9th Circuit Court of Appea; (Wilken, D.J., joined by Graber and Berzon) held that the prosecutor could not.

The defendant was arrested coming cross the border with cocaine in the gas tank. She at first waived her Miranda rights and made a statement that she had lent her car, and had just gotten it back, and was going to drive it to L.A. After seven minutes or so, she then invoked her Miranda rights. At trial, the agent who took the post-arrest statement acknowledged changes in his notes and cross-outs. The defendant testified and was crossed on inconsistencies. There were also corroborating witnesses to her version.

In closing, the prosecutor hammered on omissions in her post-arrest statement, and the inconsistencies with her trial testimony, implicitly commenting on her invocation of silence. This was a due process violation. It was not harmless given the focus on her credibility.

U.S. v. Caruto, No. 07-50041 (5-12-08).

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Posted In: Federal Cases , Prosecutorial Misconduct

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THE QUESTION POSED IN THIS AMAZING CASE IS: Can an AUSA's reckless disregard for constitutional discovery obligations serve as a basis for a dismissal of an indictment with prejudice? Yes! United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008). Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct.

When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment.

Issue(s): “The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.”

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . . We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .”

Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” I

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.”

One of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008).

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).

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THE QUESTION POSED IN THIS AMAZING CASE IS: Can an AUSA's reckless disregard for constitutional discovery obligations serve as a basis for a dismissal of an indictment with prejudice? Yes! United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008). Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct.

When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment.

Issue(s): “The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.”

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . . We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .”

Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” I

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.”

One of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008).

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).

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Okay, this goes into the OMG category. A handcuffed arrestee was about to be tasered by a cop, and the cop pulled out the wrong weapon, and shot him dead instead! I mean, why is a cop tasering a handcuffed suspect? If you have to quiet a handcuffed suspect - and that's really, really debatable folks - why not pepper spray him? But tasering him? And shooting him dead instead. I say "Hang 'em High."

DUMB COP ACCIDENTALLY SHOOTS CUFFED SUSPECT

The accidental shooting of a handcuffed suspect is subject to a reasonableness inquiry. A case "remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007)," involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead.

Here, however, the arrestee died. The inquiry is reasonableness, but that question was not decided by the district court, so the case is remanded. Torres v. City of Madera, 2008 U.S. App. LEXIS 9648 (9th Cir. May 5, 2008):

Henry concluded, and we agree, that five factors were relevant to the reasonableness determination: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistently with that training. Henry, 501 F.3d at 383.

While these factors are relevant to the determination of whether Officer Noriega acted reasonably, we also stress that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments." Graham, 490 U.S. at 396-97. Since the parties did not brief the issue of whether Officer Noriega's mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination, and we remand to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

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Defendant's post-plea involvement in jail violence could be considered failure to accept responsibility and form the basis for the court to deny that downward adjustment.

United States v. Mara (9th Cir. 4/28/08, 07-30102) 08 C.D.O.S. 4958

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The government used a Confidential Informant to complete multiple sales of crack. The defendant faced three counts, but plead to only one.

The Presentence Report used as relevant conduct all the sales, and found that the defendant was a career offender. This bothered the court, who expressed concern about relevant conduct, and thought that the career offender determination was pumped up.

The government objected, and the court groused that "...You know what you can do with that. Take it to the appellate court...." Well, the government did.

The 9th Circuit agreed that the court, under the guidelines, had to consider the relevant conduct, and that Gall requires an accurate guideline calculation. The 9th Circuit (nudge, nudge) indicated (wink, wink) that the district court under Gall/Kimbrough could use all the factors and could be cognizant of the crack/powder disparity.

U.S. v. Grissom, No. 06-10688 (4-15-08).

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Sixth Amendment right to an "informed jury" guarantees right to have jury told of mandatory minimums

In a 400 page opinion-law review article, the venerable Judge Weinstein of the E.D. N.Y., surveying the history and law of juries, jury trials, and the Sixth Amendment, holds that the jury should have been told of the mandatory minimums in the case under the Sixth Amendment. United States v. Polizzi, 2008 U.S. Dist. LEXIS 26900 (E.D. N.Y. April 1, 2008) (local page cites left in to help you find this part if you go to the case; this is just part V of the opinion; the wonderful discussion of the history of sentencing and informed juries is in part IV):

V. Defendant's Motion to Inform the Jury of Mandatory Minimum Should Have Been Granted

As noted in Part II.B.4.b, supra, defendant repeatedly moved to have the jury informed of something it would not be expected to, and did not, know -- the mandatory five-year minimum prison [*368] sentence required were it to find the defendant guilty of receiving as charged. It was demonstrated in Part IV, supra, that the court's failure constituted a denial of defendant's Sixth Amendment jury rights. Such an instruction is different from one inviting the jury to nullify. It accords fully with Sixth Amendment rights to a jury which understands the effects and implications of its decision. See Part IV.A, supra.

That juries do have the power to refuse to convict or to convict of a lesser offense has been fully established. See Part IV, supra; see, e.g., Neder v. United States, 527 U.S. 1, 33 (1999) (Scalia, J., concurring in part and dissenting in part) ("A court cannot, no matter how clear the defendant's culpability, direct a guilty verdict."); United States v. Pabon-Cruz, 391 F.3d 86, 95 (2d Cir. 2004) ("The power of juries to 'nullify' or exercise a power of lenity is just that--a power" (quoting United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997))); Thomas, 116 F.3d at 615 (characterizing right of juries to deliver unreviewable, general verdicts -- thereby allowing jury nullification to occur, albeit infrequently -- as a form of "jury lenity"). Where nullification [*369] is suspected, courts may not "intrude upon 'the sanctity of the jury's deliberations' because of their 'strong policy against probing into [a jury verdict's] logic or reasoning.'" United States v. Mahaffy, 499 F. Supp. 2d 291, 296 (E.D.N.Y. 2007) (quoting United States v. Zane, 495 F.2d 683, 690 (2d Cir. 1974)).

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In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough.

Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no. 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption.

The 9th recognizes that a Guideline sentence will usually be reasonable, but that stating there is a presumption imports "baggage" of an evidentiary nature when, on appeal, and in light of the nonbinding nature of the Guidelines, serves no purpose.

The opinion lays out the steps a court should follow, emphasizing the need for correct procedure to be followed by substantive review. The standard is abuse of discretion as to reasonableness.

The concurrences are interesting. Kozinski states that the majority adopts a presumption, but is just afraid to call it that. Silverman chides the majority for not adopting a presumption of reasonableness, which he reads the Supremes as permitting. As for the cases, the 9th affirms the sentences on both as reasonable.

Still, the opinion is a clear indiction of the tremendous discretion the sentencing court now enjoys. Carty will certainly make the "most-cited" list for the 9th.

U.S. v. Carty , No. 05-10200 (3-24-08) (en banc).

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There are a couple of major cert. grants from the U.S. Supremes:

Can the DA use a chemist's report that a substance was cocaine in lieu of actual live testimony by the chemist, or does this violate Crawford (541 U.S. 36)?

Melendez-Diaz v. Massachusetts; cert. granted, 2008 DJ DAR 3661; DJ,
3/18/08; US Supremes

Must the jury find the facts used to justify imposition of consecutive sentences, or does this violate Cunningham?

Oregon v. Ice; cert. granted, 2008 DJ DAR 3662; DJ, 3/18/08; U.S. Supremes

--

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The 9th Circuit (Reinhardt joined by Goodwin and Smith) considers a search of storage units where a defendant was living. The police followed suspects of meth production back to a storage unit where they knew the defendant was living. The unit was rented by another suspect.

The police knocked on the door, and the defendant greeted them with a metal pipe in hand. The police ordered him to drop the pipe, which he did, and the police supposedly saw a meth lab. The police then conducted a sweep.

The police then waited a couple hours, and did another search, supposedly with the consent of the renter of the storage unit (the other suspect). The 9th upheld the first search under the protective sweep exception, because the police did not know if the other suspect was hiding in the unit. Plain view, however, still requires a warrant, or other exception.

The 9th Circuit held that the search two hours later was not proper because the defendant was living at the unit, and had an interest that he shared with the renter. Under Randolph, the consent of the non-resident co-owner could not trump the objection of the resident /defendant. The 9th Circuit also stressed that there is no hierarchical standing recognized here. An owner, as opposed to resident, is not the same as a parent/child or military. This is an important vindication of Randolph.

U.S. v. Murphy, No. 06-30582 (2-20-08).

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BINGUE v. PRUNCHAK

In Onossian v. Block, we applied the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and held that a police officer in a high-speed chase-whether he injures the fleeing suspect or a bystander-is entitled to qualified immunity unless his behavior "shocks the conscience" because it demonstrates an intent "to cause harm
unrelated to the legitimate object of arrest." 175 F.3d 1169, 1171 (9th Cir. 1999) (internal quotation marks omitted).

We were not called upon to consider whether the district court must apply this "intent to harm" standard to all high-speed chases, or only those chases that involve "emergencies" or "split-second decisions." Today we refine our Onossian analysis and hold, following the Eighth Circuit, that police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. § 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm. See Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc).

The officer involved in the high-speed chase in this case is entitled to summary judgment based on step one of the qualified immunity analysis as set forth in Saucier v. Katz, 533
U.S. 194 (2001). We thus reverse the judgment of the district court.

CONCLUSION

We conclude that high-speed police chases, by their very nature, do not give the officers involved adequate time to deliberate in either deciding to join the chase or how to drive while in pursuit of the fleeing suspect. We hold, therefore, that Lewis requires us to apply the "intent to harm" standard to all high-speed chases. Since Prunchak's actions do not meet this stringent standard, Bingue's claim fails under the first step of the Saucier analysis and Prunchak is entitled to dismissal. Consequently, we reverse the judgment of the district court and remand for an entry of judgment for Prunchak on the § 1983 claims.

REVERSED and REMANDED.

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The defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the "contacts" list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing. United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 (February 1, 2008):

As Carroll and the Government identify, this and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *7-8 (N.D. Cal. May 23, 2007), how contemporaneous the search must be relative to the arrest, United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007), and whether the search is limited to a phone's dynamic memory. United States v. Zamora, No. 1:05-CR-250-WSD, 2006 U.S. Dist. LEXIS 8196, 2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006).

The Court notes also that in this case, Carroll voluntarily surrendered himself for arrest and voluntarily brought his backpack, containing the Blackberry, to law enforcement offices at the time of his surrender. Unlike the situations considered in Zamora, Ortiz, and Park, Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

Comment: See the post here on search incident of an iPhone.

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Police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. section 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm.

Bingue v Prunchak, (U.S. 9th Cir., Jan. 15, 2008)

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The defendant's flight was precipitated by unlawful attempted arrest by law enforcement officers. As a result,seizure of defendant's abandoned property was properly suppressed
The defendant's flight from an unreasonable stop led to him abandoning drugs in flight. Oops. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted.

The Court said:

"For the same reasons, I decline to adopt the government's argument that Defendant's flight was an intervening event that dissipated the taint of the initial unlawful search and seizure. It may well be that flight or resisting arrest constitutes an intervening cause in other circumstances but not under the facts of this case where there was never a break in the causal chain following the unlawful search and detention."

United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008):

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The Plaintiff's arrest was justified when she made a sarcastic comment about a bomb in her bag after she was bumped from a flight because of her late check-in when she was trying to retrieve her bags.

(Apparently plaintiff, a lawyer, did not respond well to stress. "The parties submitted expert psychiatric testimony explaining that plaintiff becomes sarcastic under stress.") She was strip searched at the jail when booked in.

Levin v. United Airlines, 2008 Cal. App. LEXIS 33 (2d Dist. January 10, 2008).*

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APPEALS - ISSUES NOT DECIDED IN FIRST APPEAL

United States v. Thornton (9th Cir. 1/10/08, 06-50597)

Appellant could raise issues in second appeal raised in first appeal but not decided because court reversed on Ameline grounds.

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Allegation of excessive force was enough to defeat governmental entities motion to dismiss, something that cannot be resolved at the pleading stage.

Garcia v. City of Merced, 2008 U.S. Dist. LEXIS 2135 (E.D. Cal. January 10, 2008).*

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The exigency ceased to exist on defendant's arrest, despite the fact it was initiated by a 911 call. He also expressly refused consent.

United States v. Davis, 2008 U.S. Dist. LEXIS 1224 (N.D. Ill. January 8, 2008):

In this case, any emergency created by Cupito's 911 call ended when the deputies arrived on the scene to find her safely outside Davis's house. According to their testimony, the deputies made the decision to arrest Davis before they requested his identification.

If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. This police manufactured exigency did not justify entry into the home.

Furthermore, even if there was an exigency that was not created by the deputies, the exigency would have ended after they handcuffed Davis and would not justify the deputies remaining in his home. See Tierney v. Davidson, 133 F.3d 189, 197-98 (2d Cir. 1998) ("As to what may be done by the police or other public authorities once they are inside the premises, this must be assessed upon a case-by-case basis, taking into account the type of emergency which appeared to be present ... The officer's post-entry conduct must be carefully limited to achieving the objective which justified the entry-the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.").

Because there was no exigency, the only other way the Government may justify the deputies' entry is by consent.

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A male officer's patdown of a woman using his cupped hand to touch her groin area, if true, stated a claim and overcame qualified immunity.

Cherney v. City of Burnsville, 2008 U.S. Dist. LEXIS 1345 (D. Minn. January 8, 2008).*

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A federal appeals court appears poised to rule that a computer has no special protection from searches at the border.

The San Francisco-based 9th U.S. Circuit Court of Appeals is expected to rule in the case of Michael T. Arnold, who is seeking to throw out evidence of child pornography found by a customs officer who clicked on folders called “Kodak pictures” and “Kodak memories,” Adam Liptak writes in his column for the New York Times.

Click HERE for article from ABA Journal.

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California Criminal Defense Lawyer News
People v. Lawrence (2008) , Cal.App.4th
[No. B193831. Second Dist., Div. Seven. Jan. 2, 2008.]
THE PEOPLE, Plaintiff and Respondent, v. RINGO LAWRENCE, Defendant and Appellant.

(Superior Court of Los Angeles County, No. BA284590, Mark V. Mooney, Judge.)

Rather than agree to a two-week trial continuance requested by his defense counsel due to a scheduling conflict, Ringo Lawrence, charged with two serious drug offenses, asserted his Sixth Amendment right under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta) to represent himself.

After a half-day of jury selection, Lawrence thought better of his decision and asked that counsel be appointed to represent him at trial. The trial court denied the request and also denied a second request made by Lawrence at the conclusion of jury selection.

Did the trial court err in refusing to permit Lawrence to withdraw his Faretta waiver? If so, is the erroneous denial of a request to withdraw a Faretta waiver state law error only or is it federal constitutional error? If federal constitutional error, is that error structural or subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman)?

Under the circumstances of this case the trial court abused its discretion in denying Lawrence's request for counsel at the end of the first day of trial. Because deprivation of counsel at a critical stage of a criminal trial is federal constitutional error that affects the framework within which the trial proceeds, "with consequences that are necessarily unquantifiable and indeterminate," the error is structural and reversal is required without analysis of prejudicial effect. (Sullivan v. Louisiana (1993) 508 U.S. 275, 282 [113 S.Ct. 2078, 124 L.Ed.2d 182]; see United States v. Gonzalez-Lopez (2006) 548 U.S. ___, ___ [126 S.Ct. 2557, 165 L.Ed.2d 409].)

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: SELF REPRESENTED DEFENDANT CAN CHANGE HIS MIND AND GET A LAWYER. COURT'S REFUSAL TO PROVIDE A LAWYER UPON REQUEST VIOLATES CONSTITUTION" »

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This case truly belongs in the "You've Got To Be Kidding" category. Here goes...

FACTS:

A bunch of Los Angeles Sheriff's Deputies sued Sheriff Leroy Baca and a bunch of supervisors for violations of their Fourth, Fifth and Fourteenth Amendment rights.

The deputies claimed they were improperly detained at the station house and later punished through involuntary shift transfers after refusing to give non-privileged statements in connection with an IA investigation of their own police brutailty. They say this behavior by their supervisors "shocked the conscience" and they should be compensated pursuant to the federal civil rights statutes.

So, here's how it goes....A citizen (maybe a suspect) ends up in the hospital with head and back injuries due to batons, or maybe flashlights, or maybe some other hard objects employed only by cops, landing on his head and back over and over and over again. Don't tase me bro. The victim of these blows was a bystander during the execution of a search warrant.

Continue reading "NINTH CIRCUIT COURT OF APPEAL STAMPS OUT LAWSUIT FILED BY ROGUE LOS ANGELES SHERIFF'S DEPARTMENT DEPUTIES AGAINST SUPERVISORS" »

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Where plaintiff did not allege a § 1983 violation and proceeded directly under the Fourth and Sixth Amendment, the case could not be removed to federal court because there is no claim directly under the Fourth Amendment cognizable in federal court.

Phillips v. Sacramento County, 2007 U.S. Dist. LEXIS 94489 (E.D. Cal. December 27, 2007).*

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In Brooks v. Neb. DMV, 2007 U.S. Dist. LEXIS 94168 (D. Neb. December 26, 2007), "Plaintiff here alleges that Defendant Bell pulled his gun out and yelled profanities at Plaintiff during his arrest.

Liberally construed, Plaintiff alleges that Defendant Bell knocked him to the ground after he was already handcuffed and cooperating. (Filing No. 1 at CM/ECF p. 3.) Plaintiff has set forth enough facts to nudge his claims against Defendant Bell across the line from conceivable to plausible.

As a result, Plaintiff's claims against Defendant Bell may proceed." The claim against the DMV is dismissed under the Eleventh Amendment.

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Posted In: Bad Cop - No Donut , Civil Rights , Federal Cases , Police Misconduct Cases

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BIG BROTHER IS WATCHING. THE WASHINGTON POST REPORTS THE FBI IS BUILDING A WORLD'S LARGEST BIOMETRIC COMPUTER DATABASE

Yesterday's Washington Post REPORTS:

CLARKSBURG, W. Va. -- The FBI is embarking on a $1 billion effort to build the world's largest computer database of peoples' physical characteristics, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad.

Digital images of faces, fingerprints and palm patterns are already flowing into FBI systems in a climate-controlled, secure basement here. Next month, the FBI intends to award a 10-year contract that would significantly expand the amount and kinds of biometric information it receives. And in the coming years, law enforcement authorities around the world will be able to rely on iris patterns, face-shape data, scars and perhaps even the unique ways people walk and talk, to solve crimes and identify criminals and terrorists. The FBI will also retain, upon request by employers, the fingerprints of employees who have undergone criminal background checks so the employers can be notified if employees have brushes with the law.

"Bigger. Faster. Better. That's the bottom line," said Thomas E. Bush III, assistant director of the FBI's Criminal Justice Information Services Division, which operates the database from its headquarters in the Appalachian foothills.

The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny. It is drawing criticism from those who worry that people's bodies will become de facto national identification cards. Critics say that such government initiatives should not proceed without proof that the technology really can pick a criminal out of a crowd.

Check out the Huffington Post for blog diaolgue in this controversial issue.

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Posted In: Federal Cases , In The News

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A prisoner stated a § 1983 civil rights claim won a rare appeal this month in a prison abuse case. The Fifth CIrcuit Court of Appeal held that Hutchins pleaded facts sufficient to survive dismissal under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A(b).

Hutchins alleged that prison guards - both male and famale guards - made him submit to a baseless prison body cavity search.

The case was dismissed by the District Court, but the Court of Appeal reversed stating Hutchins can attempt to prove nominal and punitive damages.

Hutchins v. McDaniels, 2007 U.S. App. LEXIS 29755 (5th Cir. December 21, 2007).

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Posted In: Bad Cop - No Donut , Civil Rights , Federal Cases

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United States v. Gregory Michael Zimmerman, __ F.3d __, 2007 WL 4394421 (9th Cir. Dec. 18, 2007).

Defendant Gregory Zimmerman pleaded guilty in a false ID cases. As a result, he wa sordered to provie a DNA sample. Though he has a Jewish name, Zimmerman was raised Roman Catholic. He also studied other religions, such as Buddhism. Based on his religious beliefs, he objected to letting the Feds draw blood for DNA. The district court didn’t buy it, noting that Roman Catholics have no objection to having blood drawn.

Issue(s): “We consider whether compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act (RFRA).”

Held: “Without determining the precise scope of Zimmerman’s beliefs, the district court held that his beliefs weren’t religious . . . This was error.” Id. at *1. “While this may not be a mainstream religious belief or common interpretation of the Bible, Zimmerman’s belief that he can’t give a blood sample is based on his connection with god, not purely on secular philosophical concerns . . . As a result, the district court erred in holding that Zimmerman’s refusal to give a blood sample wasn’t based on a religious belief.” Id. at *2.

Of Note: The RFRA doesn’t require that a belief be central to a mainstream religion – the Act protects religious exercise “whether or not compelled by, or central to, a system of religious belief.” Id. at *1.

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Posted In: Federal Cases , Search & Seizure Cases , U.S.

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The Defendant's allocution rights not violated by court's refusal to close courtroom for sentencing. Counsel did not make the proper request, which was to allow the defendant to speak in camera under Federal Rule 32(i)(4)(C). The motion to close entire courtroom was not properly made and the appeal was denied.

United States v. Biagon (9th Cir. 12/17/07) 06-10479, 07 C.D.O.S. 14311

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An intrusive search condition imposed on a defendant who pled to a financial crime was not an abuse of discretion. In fact, it almost cannot be an abuse of discretion under Samson.

The district court could justifiably be concerned that defendant's conduct was not aberrational, despite his claims to the contrary. United States v. Betts, 2007 U.S. App. LEXIS 29063 (9th Cir. December 14, 2007):

Betts argued that the court abused its discretion because he had no prior convictions and had fully accepted responsibility for his crime. But the Ninth Circuit stated it could not characterize the trial court's exercise of discretion as an abuse, although it admitted the search condition was very intrusive. The court reasoned that the public is entitled to protection against the possibility that Betts's conduct may not have been so aberrational as he contends. It also considered his skill and success in committing this subtle fraud, protection will not be easy.

The Ninth Circuit also dicussed application of Samson v. California, where a similarly worded condition imposed by statute on all California parolees did not violate the Fourth Amendment, even though the condition did not require reasonable suspicion.

The Court considered the high risk of recidivism for people convicted of crimes, and the problem that "[i]mposing a reasonable suspicion requirement ... would give parolees greater opportunity to anticipate searches and conceal criminality."

Because the blanket requirement imposed by California on state parolees did not violate the Fourth Amendment, a fortiori the individualized requirement imposed in Betts' case on supervised release does not. The court reasoned that there is no sound reason for distinguishing parole from supervised release with respect to Fourth Amendment waivers. The federal system has abolished parole, and uses supervised release to supervise felons after they get out of prison.

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Posted In: Federal Cases , Search & Seizure Cases , U.S.

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The defendant had no reasonable expectation of privacy on his computer attached to a military base network in Saudi Arabia. He thought his files were password protected, but they were not.

His personal files were accidentally accessed by somebody finding, oops, child porn on his personal computer when it was attached to the network.

Therefore, he had no reasonable expectation of privacy in the network. The court analogized it to a person having attempted to protect against other seeing the information but failing in the attempt.

United States v. King, 2007 U.S. App. LEXIS 28912 (11th Cir. December 14, 2007):

Continue reading "COURT OF APPEAL SAYS DEFENDANT WHO FAILS TO PASSWORD PROTECT HIS COMPUTER FILES HAS NO EXPECTATION OF PRIVACY" »

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Posted In: Federal Cases , Search & Seizure Cases , U.S.

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In a not-so-unexpected move, the Ninth Circuit Court of Appeal has held that the terms of supervised release must be reasonably related to the probationer. California criminal defense attorneys have long been able to object to judges imposing terms of probation that had nothing to do with the crime charged or the particular defendant. For example, there is no rational basis for imposing a Fourth Amendment waiver on a person who is convicted of a California domestic violence charge. Similarly, there is no basis for imposing a condition that a California probationer not be allowed to drink alcohol is he is convicted of writing bad checks.

California criminal courts have no ability to randomly impose search terms of probation conditions unless such a condition is somehow related to the charge or the defendant.

This week, the Ninth Circuit agreed, following the well established rule of law in California state cases. Now California federal criminal defense lawyers can make the same arguments and win.

United States v. Brandon Betts, __ F.3d __, 2007 WL 4355365 (9th Cir. Dec. 14, 2007)

Facts:

Defendant Betts worked at a credit reporting company, and pleaded guilty to taking bribes to fix creditors’s bad credit. 2007 WL 4355365, *1. As is true in all FPD cases, “[o]n the advice of counsel, Betts declined to discuss his past or current use of illicit substances of alcohol.” Id. at *4. Although there was nothing in the record to suggest alcohol abuse, the judge imposed the condition of supervised release that “the defendant shall abstain from using illicit drugs or alcohol and abusing prescription medications during the term of supervised release.” Id. at *4.

Issue(s):
“Betts contends that the condition prohibiting him from drinking alcohol fails the test set out in Weber.” Id. at *5.

Held:

“We agree. No one suggests that alcohol played any role in Betts’s crime. And there was no evidence that Betts had any past problems with alcohol. Under these circumstances, we think it impossible to say that the condition imposed bears a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.” Id. at *5.

Of Note:

On Liberty: “Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.” Id. at *6.

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The police were entitled to a warrant to search the defendant's property because of the unsightly junk he collected there for his various engineering projects. Carpiaux v. City of Emeryville, 2007 U.S. Dist. LEXIS 91574 (N.D. Cal. December 13, 2007).*

Hint: Clean up your front lawn if you live in Northern California.

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Posted In: California , Federal Cases , Search & Seizure Cases , U.S.

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The court's denial of petitioner's habeas corpus petition challenging petitioner's jury conviction for unlawfully taking a vehicle is reversed in part where a state court's application of harmless error review to the trial court's jury instruction lowering the prosecution's burden of proof was contrary to or an unreasonable application of clearly established Supreme Court precedent.

Byrd v. Lewis, No. 06-15977

Note: I am always confounded when the appellate court reverses a trial court for failing to follow a "clearly established rule" or precedent. I think judges that make $150,000 plus benefits every year shouldn't be busy applying - not violating - clearly established rules.

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This is an appeal from a conviction for a tunnelling case. The tunnel ran from Agua Prieta, Mexico, about 200 yards under the border to a warehouse in Douglas, Arizona. It was a sophisticated tunnel, turning an outside spigot caused a hydrolic lift to raise and the door to open.

The defendant was an architect, and Mexican national. He was indicted in 1988, but only arrested in 2003 and subsequently extradicted.

Defendant argues on appeal that the pre-indictment delay prejudiced him, and also speedy trial violations. The Ninth Circuit held that there was no preindictment delay because the indictment was within the statute of limitations. Further, the prejudice was not enough.

As for speedy trial, the 9th found that the justification offered by the government, of good faith attempts to extradicte, was sufficient. The Mexican government was not extradicting defendants in the 1990's, and the US made efforts to locate and extradite and seize him.

U.S. v. Corona-Verbera, No. 06-10538 (12-7-07).

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A defendant who traded drugs for a gun did not "use" a firearm during a drug trafficking crime within the meaning of 18 U.S.C. section 924(c)(1)(A)'s mandatory minimum.

Watson v. United States (U.S. Sup. Court 12/10/07, 06-571) 07 C.D.O.S. 14087

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In this federal civil rights lawsuit in the Northern District of California, the Court determined Friday that the blanket strip search policy of a juvenile detention center by Contra Costa County officials survived summary judgment.

This case offers fascinating summaries of the summary judgment material presented by Plaintiffs showing the potential psychological damage to a juvenile from a strip search. Under the facts of this case, the search of the juvenile plaintiff occurred long after introduction into the detention facility.

Also, circuit law was unclear, but there was a 1981 case favoring plaintiff and there were three cases from other district courts in other circuits in point that the court used to show the claim was valid. This is a lengthy opinion developed from what appears to be a particularly strident response from the defendants on summary judgment. Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. December 5, 2007):

While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants' evidence falls short of establishing the constitutionality of blanket strip searches--both upon intake and after returning from visits with individuals who were not employed by Juvenile Hall.

With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons. Further, in the face of Plaintiffs' evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.

Continue reading "CALIFORNIA FEDERAL CIVIL RIGHTS LAWSUIT ATTACKING BLANKET STRIP SEARCHES OF CALIFORNIA JUVENILES IN DETENTION FACILITIES SURVIVES SUMMARY JUDGMENT" »

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Posted In: California , Civil Rights , Federal Cases , Search & Seizure Cases , U.S.

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Equitable tolling applies to save a § 1983 case that was filed within one year of reversal of a conviction, and after Wallace v. Kato held that the cause of action accrues after reversal. The case was dead under Heck until reversal. Kucharski v. Leveille, 2007 U.S. Dist. LEXIS 89320 (E.D. Mich. December 5, 2007):

In Wallace v. Kato, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), the Supreme Court overruled all the precedents in the circuits applying Heck to bar section 1983 claims filed by persons with criminal charges pending in state court or deferring the accrual date of such claims. Heck only applies if the plaintiff has actually been convicted. The Court held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey does not require otherwise. Shamaeizadeh, plainly, was overruled.

There can be no question that the plaintiffs relied on Sixth Circuit precedent to their prejudice in this case. The untimeliness of the plaintiffs' complaint results from an understandable confusion about the state of the law as to when their claim accrued. That confusion was created by the courts themselves. The delay did not result from the plaintiffs' failure to diligently pursue the claim. In fact, the plaintiffs filed their complaint less than one year after their convictions were reversed.

Moreover, strict application of Wallace to this case effectively deprives the plaintiffs of their cause of action. If the plaintiffs had filed their case immediately after the search on May 4, 2001, Sixth Circuit precedent would have required dismissal of the case as barred by Heck. Once the law changed, the plaintiffs' convictions having been reversed on September 30, 2004, the plaintiffs would be barred by the statute of limitations under Wallace. This is "a result surely not intended." Wallace, 127 S. Ct. at 1099 n.4. Rather, this is the unusual case that fits neatly within the doctrine of equitable tolling.

The Court concludes that Michigan law tolled the three-year statute of limitations while the plaintiffs' convictions were still viable, and filing this case within three years of the reversal of those convictions does not result in a statute of limitations bar.

Accordingly, it is ORDERED that the plaintiffs' motion for reconsideration [dkt # 51] is GRANTED.

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FEDERAL CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Macias-Valencia, No. 06-10711

The mandatory minimum sentence of 10 years, prescribed by 21 U.S.C. section 841(b)(1)(A)(viii), applies to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense.

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CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Zalapa, No. 06-50487

A defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal. Read more...

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Defendant's sentence for coercing and enticing a minor to engage in sexual activity and possession of child pornography is affirmed where:

1) for purposes of applying a two-level enhancement for misrepresentation of identity, the district court reasonably could have concluded that defendant was misrepresenting his identity in a prolonged effort to groom what he thought was a thirteen-year-old girl for illicit sexual contact; and

2) a vulnerable victim enhancement, and an enhancement for sadistic or masochistic conduct portrayed in the illegal images at issue, were not improperly "double counted" when applied to the sentence

US v. Holt, No. 06-30597

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PROCEDURE
People v. Super. Ct. (Maldonado), No. B202492
Petition for writ of mandate challenging dismissal of information charging defendant with continuous sexual abuse of a child and lewd acts on a child is granted where the one-year period of limitations under Penal Code section 803(f) does not begin to run upon a report of unlawful sexual conduct that does not include allegations of substantial sexual conduct.

CRIMINAL LAW & PROCEDURE, SENTENCING
People v. Prosser, No. G038481
Defendant real estate broker's conviction and sentence for burglary and receiving stolen property are affirmed over claim that in making the restitution orders the trial court erred in failing to itemize the component parts of each lump sum figure and in relying on the opinions of the victims in establishing the value of the stolen items.

CRIMINAL LAW & PROCEDURE
People v. Zacarias, No. D049593
Conviction and sentence for kidnapping for financial gain are reversed as the vicarious liability doctrine applicable to conspiracies exists to extend the liability of those who are guilty of conspiracies to commit California crimes and not to commit federal crimes, and it could not be determined whether the jury relied on one of the legally viable theories on which it was instructed.

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"Knepper claims that the warrantless search of the bedroom where his backpack was recovered was illegal. The district court found that Knepper had abandoned the cottage and thus lacked an expectation of privacy in his former bedroom." That finding is supported by the evidence.

United States v. Knepper, 2007 U.S. App. LEXIS 28064 (9th Cir. November 29, 2007).

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Vouching is always bad. It is particularly bad when a snitch tries to gain credibility by vouching that the prosecutor would rip up his plea agreement up if he lied. Right. Like all prosecutors are honest, and they never play to win, right? Wrong. (See my post on this blog regarding Dirty Tricks in the Crime Lab in San Diego and Prosecutorial Misconduct in San Diego).

The Ninth Circuit agreed that vouching is bad. But although it finds such bolstering here, it ultimately holds that such vouching is harmless. Right.

Still, this is an interesting and useful opinion. The Ninth Circuit unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i.e. "because I promised and if I lie, the AUSA will tear up the plea and I'll do more time") is vouching and impermissible.

But the Ninth Circuit then goes on to say that this mild form was cured by the court's curative instructions about cooperating witnesses and the overwhelming guilt.

The overwhelming guilt (i.e. lack of prejudice) also plays into the excusing the more serious form of vouching that occurred when the government bolstered its wiretap evidence by eliciting testimony about how DOJ and the courts had to approve such an application. This gave the impression that the defendant was guilty as determined by the agency and court. Again