ARTICLE REVIEW: "An American Dream Gone to Pot" Find and read Newsweek feature article on the Supreme Court's upcoming ruling relating to whether minor drug offenders can ask immigration judges for relief from deportation.

In the January 7, 2010 issue of Newsweek, there is an article entitled "American Dream Gone to Pot:  Should Illegal Immigrants Be Deported for Drug Possession?  The Supreme Court Will Decide" about a case which is likely to be argued in the Supreme Court in March or April.  The issue presented in that case concerns whether a person with two minor drug offenses can ask an immigration judge to waive the deportation proceeding.  The issue is framed as follows in the cert petition:

Federal law forbids a lawful permanent resident who has been convicted of an “aggravated felony” from asking an immigration judge to cancel his deportation.  A defendant who is convicted multiple times for drug offenses can be deemed to have committed an aggravated felony.  The question presented is whether the successive drug conviction is an aggravated felony automatically or instead only if the court specifically finds that the defendant is a repeat offender.

The immigrant in this case is Carachuri-Rosendo and he had a conviction for possession of a small amount of marijuana and then a second conviction for possession of a single table of Xanax.  Mr. Carachuri has been in the United States since he was 4 years old.

ONLINE RESOURCES: The New York Immigration Defense Project has great resources for persons representing non-citizens. Link below to the immigration consequences of criminal convictions checklist!

The New York Immigrant Defense Project (NYSDA IDP) is a great resource for people who represent non-citizens concerned about the impact of criminal charges and convictions on their immigration status.  The NYSDA decsribes their mission as follows:


IDP promotes a transformation of the criminal justice and immigration systems so that they do not result in the exile of immigrants from their homes and families in the United States.  We also seek to minimize deportation and detention under current laws for immigrants facing criminal charges or subsequent deportation.  


In pursuit of these goals, we (1) serve as a legal resource and training center for criminal defense attorneys, criminal justice and immigrant advocates, and immigrants fighting against deportation and detention; (2) support community-based advocacy against unjust immigration laws and their aggressive enforcement; and (3) promote immigrant-protective impact litigation results by recruiting and mentoring pro bono attorneys to provide legal assistance to immigrants challenging their detention or removal order in federal court.

One of the most helpful resources that they have posted online is a checklist of immigration consequences for criminal offenses.  You can find a link to it HERE.  But there are so many other aspects of their website.  Visit it to learn more about criminal consequences, deportation relief and so much more!

BLOG REVIEW: FourthAmendment.Com Blog

You will notice that the Fourth Amendment blog has been added to our blogs to watch.  The blogs to watch list includes blogs that I have found or that have been recommended as blogs which are both helpful and informative on federal criminal defense issues.  The Fourth Amendment blog has loads of information on search issues from many different jurisdictions.  The author of the blog apparently has a treatise, but the blog itself is very informative.  There is a search engine and very frequent updates.  This blog is recommended for anyone seeking more authority on a suppression issue.

FOR YOUR READING LIST: A great article discussing strategies for success in sentencing for illegal reentry clients.

For those of us who handle illegal reentry cases, we are always looking for fresh sentencing strategies to counteract some of the very harsh sentencing guidelines for reentry.  I found this nice little article from the defenders in Mobile, AL.  There are great citations and suggestions.  Find the article link HERE.

More on the proposed amendments to the federal sentencing guidelines

Click HERE for a link to the press release from the United States Sentencing Commission on the new proposed amemdments.  These amendments reflect some movement from the sentencing commission on alternatives to incarceration and possibly other types of relief such as drug treatment.  Check it out to stay informed.

Oral argument this morning in United States v. Farley regarding the constitutionality of 2241(c)'s 30 year mandatory minimum.

The Eleventh Circuit will hear oral argument this morning in United States v. Farley which concerns the constitutionality of 18 U.S.C. 2241(c).   Section 2241(c) punishes individuals who “cross a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years." As of July 2006, individuals convicted of this offense are subjected to a thirty year mandatory minimum sentence.  At the district court level, the defense filed a motion to declare the thirty year mandatory minimum sentence unconstitutional as a violation of the Eighth Amendment's proscription against cruel and unusual punishment.  Judge Beverly Martin agreed with the defense and found that the thirty year mandatory minimum was one of those rare times when a non-capital punishment violates the Eighth Amendment.  The Government is on appeal from that order before the Eleventh Circuit.  Oral argument will be heard this morning.  The case has received national attention since it was issued last year.  Farley's attorneys are Vionnette Johnson and Jeff Ertel of the Federal Defender Program, Inc.  Go Vionnette and Jeff!

District court opinion here.
Post in Sentencing Law and Policy here.

New amendments proposed by the United States Sentencing Commission.

Last week, the United States Sentencing Commission posted proposed changes to the guidelines.  You can find the reader friendly version link HERE.  The first thing that jumps out from the text of the reader friendly version is an increased emphasis on alternatives to incarceration.  Then, there appears to be a change in the sentencing table itself and the jagged lines that define the zones of the table.  (See below.)  Be sure to review the proposed changes as the commission seeks input prior to promulgation.  Remember that Michael Trost is the Eleventh Circuit representative to the Practitioner's Advisory Group of the United States Sentencing Commission.  We will forward your comments to him.

Melendez-Diaz v. Massachusetts (June 2009) holding that the Confrontation Clause applies to forensic lab reports withstands challenge by the State of Virginia.

Yesterday, the Supreme Court passed on the invitation to revisit Melendez-Diaz in Briscoe v. Virginia, instead remanding the case for further proceedings consistent with Melendez-Diaz.  Therefore, as noted by my colleague, Nicole Kaplan, Melendez-Diaz stands.  Melendez-Diaz held that lab reports are testimonial and thus the Confrontation Clause and Crawford would bar introduction of the lab report into evidence without live testimony by the author of the report or the person who ran the test.

Supreme Court will decide the meaning of 924(c)'s except clause with cert grants in the third and fifth circuits, Abbott and Gould.

[Revision of the post yesterday - thanks to Millie.]
The Supreme Court has accepted certiorari in Abbott v. United States, 09-479, and Gould v. United States, 09-7073, which each involve the correct interpretation of 18 U.S.C. 924(c)'s except clause.  Before listing the various mandatory minimum sentences under the various subsections, the 924(c) contains the proviso, “[e]xcept to the extent that a greater minimum sentence is otherwise provided under this subsection, or by any other provision of law.” Thus, the argument is that the except clause applies when a defendant is being sentenced for a 924(c) and some other statute which carries a higher mandatory minimum than the one which applies to the 924(c).  This can happen with ten year mandatory minimum drug cases and also with multiple counts of 924(c) (since the second or subsequent carries a 25 year minimum).

The Third Circuit opinion in Abbott is here.
The Fifth Circuit opinion in Gould is here.

Eleventh Circuit finds waiver applies to extradition challenges (rule of specialty and rule of dual criminality) raised outside pretrial motions deadline.

In United States v. Manuel Marquez-Lopez, 08-12588 (11th Cir. January 22, 2010) (Wilson, Anderson, Restani), the Eleventh Circuit considered multiple challenges to the defendant's extradition from Spain which were raised after the deadline for pretrial motions had passed.  Challenges to personal jurisdiction (as opposed to subject matter jurisdiction) must be raised within pretrial motions deadlines or else they are considered waived.  Manuel-Lopez challenged his extradition from Spain under the "Rule of Specialty" and the "Rule of Dual Criminality."  The Eleventh Circuit ruled that such challenges relate to the court's power over the person (in that extradition is a device by which the court gains personal jurisdiction over the defendant).  As such, the challenges must be raised within the time period for pretrial motions.  The defendant's failure to do so constitutes waiver.

The Rule of Specialty in extradition cases provides that a person who has been extradited from a foreign country into the United States may only be prosecuted on the charges for which he or she has been extradited.  See http://obtainingforeignevidence.blogspot.com/2008/02/rule-of-specialty-jacques-semmelman.html.  Thus, if a defendant who is appearing pursuant to extradition faces a superseding indictment for additional charges, a motion to dismiss the new charges pursuant to the rule of specialty may be in order.

The Rule of Dual Criminality in general terms means that that which the seeking country wishes to prosecute the defendant for must be recognized as criminal in both countries.

Find the Eleventh Circuit opinion here.

FROM THE TRENCHES: Hung jury in murder for hire trial. United States v. Hernandez, 1:09-CR-303-ODE

A mistrial was declared today after jurors were deadlocked in a murder for hire prosecution on trial before Judge Evans.  The defendant Juan Hernandez was charged with attempting to hire someone to kill a man who had allegedly raped Hernandez's wife.  Mr. Hernandez was represented by Daniel J. Ortiz, II.  N.D.Ga. Docket Number 1:09-CR-303-ODE.

Senate unanimously confirms Judge Beverly B. Martin to the Eleventh Circuit Court of Appeals.

Today, the Senate called a vote on the nomination of United States District Court Judge Beverly Martin to the Eleventh Circuit Court of Appeals.

The AJC article appears here.
Photograph by Administrator.

Supreme Court sends Georgia case back where trial court erred in excluding public from jury selection. "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials."

Today, In Presley v. Georgia, 09-5270 (January 19, 2010), the Supreme Court of the United States reversed the Supreme Court of Georgia, because it disagreed with the Georgia Supreme Court's decision affirming a conviction despite the trial court's having excluded the defendant's uncle from the courtroom during jury selection over defense objection.  In cases in which a trial court has legitimate concerns about whether there might be improper communications between members of the public and prospective jurors, the trial court must make appropriate findings of fact.  "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials."

Photograph by dbking.
United States Supreme Court opinion here.

Supreme Court GVRs Georgia capital case (Marcus Wellons)

Today, the Supreme Court granted, vacated and remanded the death penalty case of Marcus Wellons, stating, "The disturbing facts of this case raise serious questions concerning the conduct of the trial...."  Lower courts had in this case denied the defendant the opportunity to further investigate and develop the record concerning why jurors had had ex parte contacts with the trial judge and why jurors had decided to give the judge and bailiff sexually suggestive chocolate gifts.  The Supreme Court instructed that, "From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect."
Kudos to Elizabeth Wells!
Supreme Court opinion here.
Atlanta Journal Constitution article here.

Sentencing Guidelines Pocket Cards

North Law Publishers is offering pocket card sized reference cards which include the sentencing table from the guidelines and a very small chart with drug quantities.  They also have several other offerings which include condensed rule books and the like.  Check it out.

http://www.northlawpublishers.com/

Are Unmanned Surveillance Drones Coming Soon to Federal Criminal Investigations?

Today's post on the Criminal Law Professor's Blog discusses the Houston Police Department's exploration of the use of aerial surveillance drones to assist them in local criminal investigations.  The Crim Prof Blog discusses the implications this could have on Fourth Amendment claims.

But guess what?  A quick internet search turns up references from August 2009 to FBI interest in unmanned surveillance drones.

FBI interest in drones?  Click here for link discussing the possibility of FBI interest in the unmanned drones.

Houston Police Department exploration of the use of drones for their investigations:  Click here for the link to the Crim Prof Blog and a You Tube video about the Houston Police Department's use of the drones.  CrimProf Blog

No Heller defense for defendants charged with possession of a firearm by a person convicted of a crime of domestic violence.

Yesterday, the 11th Circuit ruled in United States v. White, 08-16101, that the defendant's prior misdemeanor conviction for assaulting his live-in girlfriend qualified as a "domestic violence" conviction to support a Section 922(g) (9) conviction. This statute prohibits those convicted of misdemeanor crimes of domestic violence from possessing firearms.

Also, for the first time, the Court ruled that Section 922(g)(9) is not unconstitutional despite the Supreme Court's ruling in Heller. The panel reasoned that the Supreme Court's exception to the Second Amendment's right to bear arms (that prohibits the possession of firearms by convicted felons) applied to this section.

Click here for the opinion http://www.ca11.uscourts.gov/opinions/ops/200816010.pdf.

The Administrator thanks Regina Stephenson for this post.

United States Supreme Court Rules Change

On January 12, 2010, the Supreme Court adopted revised rules to take effect on February 16, 2010. The changes include: reduction in the number of words allowed in a reply brief by 1500 words;  new requirements for the information to be included on a joint appendix cover; and a requirement that counsel of record include an email address on the covers of all documents filed.

The revised Rules can be found on the court’s website at: http://www.supremecourtus.gov/ctrules/ctrules.html.

The Administrator thanks Federal Defender staff member Debra Spratt for this information.

Government not entitled to present more evidence on drug quantity in sentencing remand when it failed to present sufficient evidence at original sentencing.

In an unpublished decision today, the Eleventh Circuit vacated and remanded the 324 month sentence of Sammy Duque out of the Rome Division, because there was not a sufficient evidentiary basis for the district court's finding that Duque was responsible for more than 15 kg of methamphetamine.  The district court also failed to make findings of fact as to the relevant conduct.  Relying on a June 2009 published opinion, United States v. Canty, 570 F.3d 1271 (June 2009), the Eleventh Circuit instructed that the Government not be afforded another opportunity to present evidence relevant to the drug quantity finding since it failed to do so the first time around.  Duque had been convicted in a several week long jury trial with several co-defendants back in January and February of 2008.  He was represented by out of state counsel.

James Ray Ward death sentence reversed based upon improper communication between the jury during the penalty phase and a bailiff about life without parole option.

The Eleventh Circuit today reversed a death sentence on the basis of improper communication between the bailiff and the jury during the penalty phase of the case.  While jurors were debating whether to impose death, one or some of them inquired of the bailiff about whether they had the option of imposing life without parole instead of death or life.  The bailiff reportedly told a juror or jurors that life without parole was not an option.  This violated the defendant's right to an impartial jury.  These communications with the jury should have been handled in open court.

James Ray Ward v. Warden Hilton Hall, ___ F.3d ___, 07-11360 (11th Cir. January 4, 2010) (Kudos to Jeff Ertel!!!).

Bond forfeitures which are not willful may not be used to calculate criminal history points under the guidelines.

The Eleventh Circuit has previously held that since Georgia considers a bond forfeiture to be a conviction under state law, a bond forfeiture may be considered a conviction for purposes of calculating criminal history under the guidelines.  See United States v. Strevel, 85 F.3d 501 (11th Cir. 1996).  (Under Georgia law, a bond forfeiture is construed as an admission of guilt pursuant to OCGA 40-13-58 unless the forfeiture is involuntary.)  In United States v. Wayne Daniel, the defendant argued that his bond forfeiture should not have been counted as a conviction for guidelines purposes, because it was not willful (in that he was in custody on another charge at the time he was due in court and had his bond forfeited).  The district court overruled the objection and counted the conviciton which caused Mr. Daniel to have a higher criminal history category and correspondingly higher sentencing guidelines range.  In an unpublished opinion, the Eleventh Circuit vacated and remanded the sentence for a determination by the district of whether or not the bond forfeiture was willful or involuntary.  If the bond forfeiture was involuntary or not willful, it must not be counted for criminal history purposes.

United States v. Wayne Daniel, 2009 WL 4918232 (December 22, 2009) (Kudos to Nicole Kaplan).

Background Checks - There's a FREE App for that!

This is my favorite new free iphone app for the new year.  If you are an iphone user and want to check out a new app that has some obvious uses for criminal defense attorneys, check out the new iphone Background Check App.  This amazing free iphone app allows you to run three background checks per week at no charge.   There is apparently an upgrade available that will permit unlimited checks.  The background check pulls up information such as address, property, and yes, criminal entries.  While this app could never take the place of a crack investigator, it could provide a quick lead on a witness or two and might help to flag criminal issues for you as well.  Check it out.