Eleventh Circuit Finds Confession Involuntary Where Officer Promised Not to Prosecute

On Friday, in United States v. Lall, Case No. 09-10794, two statements and physical evidence were deemed subject to suppression because the state officer who questioned Mr. Lall promised he would not bring state charges. The evidence was turned over to the Secret Service and Lall was prosecuted and convicted of credit card fraud. The Court of Appeals reversed and remanded.

The full opinion is available at this link.

http://www.ca11.uscourts.gov/opinions/ops/200910794.pdf

United States Sentencing Commission conducted public hearing on mandatory minimums on May 27, 2010.

Click here for the official press release regarding the public hearing on mandatory minimums held by the United States Sentence Commission.  The United States Attorney for the Northern District of Georgia testified at the hearing.  See post below for testimony.

- NK

CNN Features ATF Agent Who is Suffering Retaliation as a Whistleblower

Some of you may remember ATF agent Vincent Cefalu who used to be a senior agent in our district. ATF Special Agent Cefalu was featured on CNN last night, complaining that he has been put in a job with little or nothing to do because he's the victim of retaliation by ATF management. Agent Cefalu said that management turned against him after he reported what he believed to be an illegal wiretap plan in a RICO case in 2005. Cefalu added that following his reporting the perceived illegality in 2005, a series of retaliatory measures ensued resulting in his being assigned to a desk job with little or nothing to do on a daily basis. Read the full story here: http://www.cnn.com/2010/POLITICS/05/26/atf.whistleblowers/index.html.

- JW

New Attorney General Memorandum to AUSA's provides guidance for charging and sentencing decisions which gives more flexibility than the now superseded "Ashcroft Memorandum."

On May 19, 2010, Attorney General Eric Holder issued a memorandum to all federal prosecutors to provide guidance on charging decisions and sentencing positions.  Previously there was a memorandum done by former Attorney General Ashcroft which was rigid in its approach to Government positions on charging decisions and sentencing positions.  The new memorandum by Attorney General Holder supersedes the Ashcroft Memorandum and takes a more flexible approach.  Proscecutors are still required to seek uniformity and fairness and to charge changing the Department of Justice’s policy to guide federal prosecutors in their charging and sentencing decisions. This memorandum provides more flexibility to the prosecutors than the previous "Ashcroft Memorandum" that has long been in place. It instructs that "Charging decisions should be informed by reason and by the general purposes of criminal law enforcement...."  Significantly, where "'no substantial Federal interest' would be served by a conviction, prosecutors have the flexibility to not bring charges.  However, this situation would be an exception and not be typical.  The memorandum is available in its entirety HERE from the Sentencing Law and Policy blog.  It is a must read for those who practice in our district who want to understand what factors might persuade an AUSA to take a more moderate stance on a case.

- BM

Supreme Court rules machinegun provision of Section 924(c) is element which must be proven

On May 24, the Supreme Court held that the machinegun provision of 18 U.S.C. Section 924(c)(1)(A)(i), which imposes a 30 year mandatory minimum sentence when that type of weapon is used during the commission of certain felony offenses, is an element of the offense that must be proved to a jury beyond a reasonable doubt rather than a sentencing factor to be proved by a preponderance of the evidence to a judge at sentencing. United States v. Martin O'Brien and Arthur Burgess, No. 08-1569 (2010). Although this was a unanimous decision, Justice Thomas (with Justice Stevens joining) reiterated his view that "...if a sentencing fact either 'raises the floor or raises the ceiling' of the range of punishments to which a defendant is exposed, it is, 'by definition [an] element" and that the Constitution prohibits the type of judicial fact-finding that occurred in O'Brien.

-RCS

CJA Panel Attorney Victory at Trial

On May 20, 2010, Carlos Maldonado, who was represented by CJA Panel Attorney William Hollingsworth, was found not guilty. Mr. Maldonado was charged, along with six co-defendants, with attempting to distribute 5 kilograms of cocaine. Federal agents found the drugs in a hidden compartment of a vehicle driven by one of the men. The other six men had been following this vehicle and were also arrested. All of the men, except Mr. Maldonado, pled guilty. Three of the co-defendants testified against Mr. Maldonado as required by their negotiated pleas. Attorney Hollingsworth argued that Mr. Maldonado had no knowledge of the drugs, was not involved in the attempted distribution and was simply a passenger in the vehicle. The jury acquitted him after a four day jury trial before Judge Richard W. Story. (United States v. Maldonado, 2:09-cr-00022-RWS-SSC-4).

Congratulations to William on this defense victory!

-RCS

11th Circuit Reversal: Arizona aggravated assault conviction does not qualify for guidelines enhancement where the state statute did not require mens

On Friday, the Eleventh Circuit reversed the sentence of an undocumented immigrant in United States v. Garcia, No. 09-10534 (11th Cir. May 21, 2010) (Martin, J.).

In Garcia, the defendant's conviction for illegal reentry into the U.S. was affirmed where the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds. However, the sentence was reversed, because the district court committed error by enhancing defendant's sentence based on his conviction for aggravated assault under Arizona law where the Arizona statute did not require mens rea higher than recklessness.   Judge Martin, writing for the court, stated 

By this argument, the government underestimates the talents and the industry of district judges. A 16-level enhancement under § 2L1.2 frequently corresponds to a Guidelines range that is higher by years than it otherwise would have been. Our courts are neither so indolent nor so divorced from this Nation’s foundational principles to jail people for years longer, only because it would be easier to blindly defer to the definitional “vagaries of state law."

                 . . . .

Both in the context of 18 U.S.C. § 16 and the almost identically worded definition of “crime of violence” under § 2L1.2 of the Guidelines, these courts have held that crimes with a mens rea of recklessness are not “crimes of violence.”

-RCS

Citizen's Review Board Releases Report on Kathryn Johnston Incident Sharply Critical of APD Officers and the APD Quota System

The Citizen's Review Board which was tasked with reviewing the Kathryn Johnston incident released a report of its findings.  It is worthwhile to review the entire report.  The link is here.

The report is critical of certain practices of APD officers and also the quota system of APD.  There are recommendations concerning the working of extra jobs as well.  However, even a cursory read of the report will reveal disturbing practices found by the board to include "handoffs," a term used to refer to officers handing off their own personal observations in an investigation to be passed of as the observations of another officer in the investigation.  This report is a must read for defense attorneys who handle cases initiated by the Atlanta Police Department.

The report states that "It is a mistake to characterize the misconduct as the few acts of 'rogue officers' or 'bad apples' ... because that allows an organization to avoid looking at systemic problems."

Click here for a link to the WSB's article.
Click here for a link to the Atlanta Journal Consitution's article.


-RCS

CJA Panel Attorney Victorious in Motion to Suppress Evidence From Alleged Consent Search

On May 17, 2010 Thomas Wooldridge, a Northern District of Georgia CJA panel attorney, earned a dismissal for his client on all charges! The Government had alleged Mr. Lara-Gonzalez (United States v. Lara-Gonzalez, 1:09-CR-510), was involved in a major drug conspiracy and possessed weapons to further that conspiracy.  However, the Government's case against Mr. Lara depended substantially on evidence seized pursuant to an alleged consent search.  Mr. Wooldridge challenged the evidence at a suppression hearing held in this district and then followed with extensive briefing.  A Report and Recommendation recommending suppression of the evidence followed.

In the Report and Recommendation, the Magistrate Judge explained:

The agents’ persistence in approaching and knocking on the door with visible weapons would communicate to a reasonable occupant, and did communicate to Defendant Ignacio, that he was not free to ignore the officers. These and the other coercive elements weigh against a finding of voluntary consent. …

Considering the totality of the evidence, including Defendant Ignacio’s testimony, I find that the circumstances here were more indicative of submission to a claim of lawful authority than to a voluntary consent.

The Magistrate Judge recommended suppression of the evidence found in the search and the statement made by Mr. Lara-Gonzalez. Afterwards, the government dismissed.  Mr. Lara-Gonzalez will still be deported, but no longer has to worry about spending the next 20 years in prison.

Congratulations and great work, Thomas!

- RCS

Supreme Court holds that sentence of life without possibility of parole violates the Eighth Amendment for juvenile non-homicide defendants.

This morning the Supreme Court issued an opinion in Graham v. Florida which holds that it is unconstitutional to sentence juvenile non-homicide offenders to life without the possibility of parole under the Eighth Amendment.  The opinion was 6-3.  Justice Kennedy wrote for the Court.  Kennedy's opinion contains the following language: "[Our cases] underscore the essential principle that under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes." The judgment was joined by Stevens, Ginsburg, Sotomayor, and Roberts.  Scalia, Thomas and Alito dissented.  Although Chief Justice Roberts joined in the result, he wrote separately to clarify that he does not believe this ruling should be extended to all juvenile non-homicide offenders.

Check out the opinion at the link above.

-RCS

We have moved!

The offices of the Federal Defender Program, Inc. have moved to the Centennial Tower at the corner of Marietta and Spring Streets.  Our new address is 1500 Centennial Tower, 101 Marietta Street, Atlanta, GA 30303.  Our phone numbers remain the same.