Sunday, January 19, 2014

Supreme Court Watch

The following are recent Supreme Court cases and opinions relating to criminal law discussed and analyzed.  We break down the cases with specific analysis for the affect on practitioners.  This page will be updated as opinions are published.






Kansas v. Cheever: The Procedural Complexities of the Mental Health Defense

Docket Number: 12-609
Argument Date: October 16, 2013

ISSUE:
Whether a criminal defendant’s affirmative use of a voluntary intoxication defense constitutes a waiver of his Fifth Amendment right against self-incrimination, thus allowing the State to rebut such defense with evidence from a court-ordered mental evaluation of the defendant.  If so, to what extent can the State use such evidence?

FACTS:
On January 19, 2005, Greenwood County Sheriff Matthew Samuels and two deputies went to execute an arrest warrant for Scott Cheever at another’s residence located in an area known for illegal drug activity.  Cheever was at the residence that day cooking methamphetamine.  When Cheever learned that law enforcement officers arrived at the property for his arrest, he hid in an upstairs closet.  Cheever was paranoid because he had injected himself with a “large shot” of methamphetamine that morning.  As Sheriff Samuels began to search the upstairs portion of the residence, Cheever emerged from the closet and shot Sheriff Samuels in the chest.  Cheever retreated back into the closet just for a moment before he remerged and fired another fatal shot into Sheriff Samuels’ chest.  Cheever also fired at the other deputies as they tried to remove Sheriff Samuels’ body from the residence.  Hours later, a special response team arrived and eventually subdued Cheever despite a brief firefight.

Cheever was charged with capital murder for killing Sheriff Samuels, attempted capital murder for shooting at the other officers, and other drug-related charges for manufacturing methamphetamine.  At trial, Cheever asserted a voluntary intoxication defense and argued that his years of methamphetamine use rendered him mentally incapable of premeditating the murder.  Cheever underwent a court-ordered psychiatric examination by government psychiatrist.  After Cheever presented his voluntary intoxication defense with the help of an expert witness, the court permitted the prosecution to call the government psychiatrist to rebut the defense expert’s testimony that Cheever was unable to form the intent to kill.  The government psychiatrist opined that Cheever’s thought process was unimpaired by the methamphetamine use and instead, explained that other factors, such as alcohol use, personality conditions, mental disorders, and environmental phenomena could have possibly influenced his behavior.  The jury found Cheever guilty and Cheever was subsequently sentenced to death.  On appeal, the Kansas Supreme Court held that the admission of the government psychiatrist’s testimony violated Cheever’s Fifth Amendment rights against self-incrimination.  The Kansas Supreme Court found that Cheever’s assertion of the voluntary intoxication defense was not a waiver of his Fifth Amendment right against self-incrimination because his defense was different than the prosecution’s theory of mental disease or defect.  Thus, Cheever never opened the door for the rebuttal witness.
           
PETITIONER’S ARGUMENT:
Petitioner Kansas argued that the Kansas Supreme Court erroneously based its holding on the superficial labeling of defenses in that Respondent Cheever only asserted a voluntary intoxication defense, not a defense based on mental disease or defect. Kansas sought to avoid the distinction between the two types of defenses by claiming that its expert’s opinion was based on the same information used by the defense’s expert.  In distinguishing this case from others that were decided in favor of the criminal defendant who was forcibly subjected to court-ordered examinations, Kansas maintains that Cheever’s tactical decision to assert the voluntary intoxication defense and testify at trial put him in the position to waive his Fifth Amendment right against self-incrimination.

RESPONDENT’S ARGUMENT:
Though Kansas claimed its expert based its opinion on all the same information relied upon by the defense’s expert, Cheever argued that he never put his mental state in issue at trial and that Kansas exceeded the scope of the issue.  Cheever also argued that a waiver must be knowing, voluntary and intelligent.  Accordingly, Cheever argued that those three requirements are lacking here because he relied on state law that led him to believe such a litigation strategy would not amount to waiver. 

PRACTITIONERS:
The Fifth Amendment affords criminal defendants indispensible rights.  Criminal defendants have the right to be free from self-incrimination at every phase of the criminal process, attaching at arrest and following through to trial.  At trial, however, the design of different defenses is still the prerogative of defense counsel.  What defense counsel must be aware of are the procedural implications of asserting affirmative defenses, such as voluntary intoxication or a defense based on mental disease or defect.  Even if defense counsel is aware of such an obvious procedural implication, such as waiver of Fifth Amendment rights in asserting an affirmative defense, they must know the scope of that waiver.  Here, for instance, defense counsel must understand the scope of the evidence establishing the nuanced voluntary intoxication defense, so they can be aware of what sorts of rebuttal evidence the prosecution might offer.  Another lesson counsel can take away from the procedural intricacies of Cheever v. Kansas is understanding the legal consequences of using complex scientific evidence, such as clinical psychopharmacology and the like.  Where experts are summoned to demystify multifaceted-scientific information, counsel on the either side must gain a comprehensive understanding of such information to prevent experts from exceeding the scope.  There is no doubt that the intermingling of law and science can sometimes pose a language barrier in court.

Written by Robert Nothdurft, Jr.
Senior Staffer, Criminal Law Practitioner 



Fernandez v. California:  Georgia v. Randolph and the Physical Presence Requirement

Docket Number: 12-7822
Argument Date: November 13, 2013

ISSUE:
Whether the subsequent arrest of a co-tenant overrides his previously stated objection, while physically present at the residence, to another co-tenant’s consent to a warrantless search by law enforcement?

FACTS:
On October 12, 2009, Abel Lopez was attacked in an alley and robbed by a man suspected of being associated with a gang referred to as D.F.S.  Lopez called 911 and assisted detectives in their investigation of the assailant.  Detectives discovered an apartment in a house right off the alley, where witnesses told them the suspect had fled.  Roxanne Rojas answered the door, whereupon the detectives asked to search the residence.  Walter Fernandez, a co-tenant with equal property rights, stepped forward and refused the detectives entry.  The detectives arrested Fernandez and took him into custody.  Police officers secured the apartment, informed Rojas that Fernandez had been arrested in connection with a robbery, and questioned Rojas about a possible domestic altercation between the two of them immediately before their arrival.  The detectives pressured Rojas to consent to a search of the apartment.  Rojas, though reluctant, consented to the search verbally and in writing.  During the search, officers found gang paraphernalia, a knife, and a gun with ammunition.

At trial, Fernandez moved to suppress the evidence seized in the warrantless search of his residence.  The trial court denied the motion, and the jury ultimately found Fernandez guilty on the robbery charge.  A few months later, he pleaded nolo contendre to the three firearms and ammunitions charges, while reserving his right to appeal the denial of his suppression motion.   On appeal, Fernandez argued that the trial court improperly denied his motion to suppress.  The California Court of Appeal for the Second District affirmed the holding of the lower court, holding that the warrantless search was lawful because Rojas, a co-tenant, consented.  The court chose not to apply Georgia v. Randolph, a Supreme Court case in 2006 that held that a physically present co-tenant may expressly deny entry to the police despite another cotenant’s consent, thus making any subsequent warrantless search of the objector’s belongings unreasonable and invalid as to him.  The California court distinguished the present case from Randolph on the grounds that once police remove a previously present objecter from his residence, even if against his will, his refusal of consent becomes void.
           
PETITIONER’S ARGUMENT:
Petitioner Fernandez argues that Randolph applies regardless of whether the objecter is subsequently removed from the residence for which he denied law enforcement the right to enter.  Fernandez claims that a co-tenant may not unilaterally consent to a search of a residence that a physically present objecting co-tenant had expressly refused entry before being forcibly removed.  Such objection may only be overridden by subsequent approval of entry by the original objecter.  Fernandez also maintains that police with the desire to search an arrestee’s residence may usually obtain a search warrant within hours and seal off the residence until a warrant is obtained.  The requirement of “presence” in this context would also become problematic for criminal suspects, who object and subsequently leave the scene for even the slightest, most innocent reason.

RESPONDENT’S ARGUMENT:
On the other hand, Respondent California asserts the property rights of the consenting co-tenant as an important factor in deciding whether law enforcement may disregard an absent co-tenant’s objection.  California claims that Rojas possessed the same fundamental property right to include and exclude, so her consent to law enforcement after the departure of Fernandez was valid.  California warns that Randolph would set up a broad rule vesting an absolute veto power in the objecter, despite a subsequent lawful arrest.

PRACTITIONERS:
Assuming the United States Supreme Court espouses the view of Respondent California and disregards the rule set forth in Randolph, defense counsel may feel inclined to recommend that clients live apart from individuals who may consent to a search by law enforcement over their objection.  Alternatively, defense counsel may recommend that co-tenants, who are unrelated, draw up lease provisions to bar one another the authority to consent on the other’s behalf to a search of their belongings.

Written by Robert Nothdurft, Jr. 
Senior Staffer, Criminal Law Practitioner 



Burrage v. United States: The Drug Dealer’s Concern with Foreseeability of Death

Docket Number: 12-7515 
Argument Date: November 12, 2013

ISSUE:

(1) Whether, under 21 U.S.C. § 841, drug distribution that results in death creates a strict liability crime with no foreseeability or proximate cause requirement; and (2) whether a person can be convicted for a distribution of heroin leading to death requires a jury instruction that the heroin “contributed to” death by “mixed drug intoxication” but was not the sole cause of death.

FACTS:
Marcus Burrage is accused of selling drugs to Joshua Banka, a longtime intravenous drug abuser. Banka was found dead from a drug overdose, including heroin sold to him by Burrage.  When his body was discovered there were several recently used and unused syringes.  The area around his apartment revealed evidence of extensive drug use, including prescription drugs and marijuana.  The medical examiner concluded the cause of death was a “mixed drug intoxication with the drugs contributing to death, including heroin, the oxycodone, the alprazolam and the clonazepam.”  Additionally, Banka had indications of heart and lung disease.

Several of the drugs were potentially fatal but available testing methodologies could not distinguish between what levels of each drug were in Banka’s system.  A toxicologist confirmed these conclusions who along with the medical examiner could not make a determination that heroin was the cause of death, or that but for the heroin use Banka would have survived.  With this information the defense requested that a jury instruction be provided that a conviction could only be supported upon a showing that the heroin was the proximate cause of death and Banka’s death was reasonably foreseeable. The judge rejected the instruction and Burrage’s guilty conviction led to a minimum twenty-year sentence.


PRACTITIONERS:
“Foreseeability” and “proximate cause” are two terms in the legal profession that are fluid and rarely, if ever, definitive in their meaning.  In Burrage, the Supreme Court will decide the meaning of each term in the context of a federal statute involving death resulting from drug distribution.  There is no doubt that statutory interpretation leads different attorneys to different outlooks on the law.  Burrage demonstrates the critical advantage that one side can gain when successfully proposing jury instructions in a criminal case.  Given the fact that juries often struggle with statutory language, especially complex terms such as “foreseeability” and “proximate cause,” an attorney who successfully proposes specific instructions will likely prevail.  Jury instructions are just the finish line for a much larger responsibility: developing a solid case theory.  

During oral arguments, the Justices were eager to learn how to characterize a knowledgeable drug dealer, criminally blameworthy for the proximate death of a buyer, and an unknowledgeable one.  They inquired about the type of “safety checklist” a drug dealer would have to complete before distributing drugs and possibly assuming such an enormous liability under the statute.  Assuming everyday jurors share this same curiosity in constructing an applicable interpretation of the statute, attorneys might have to make greater efforts developing a theory that supports their case.  Only then will attorneys be able to make jurors conform to the accepted instructions.

“FACTS” written by Joe Hernandez and Calen Weiss
Executive Editor and Articles Editor, Criminal Law Practitioner; 

“PRACTITIONERS” written by Robert Nothdurft, Jr. 
Senior Staffer, Criminal Law Practitioner



Navarette v. California: Corroborating Anonymous Tips in Regards to Drunk Driving

Docket Number: 12-9490
Argument Date: January 21, 2014

ISSUE:
Whether the Fourth Amendment mandates an officer to corroborate an anonymous tip about a drunk or reckless driver before stopping the vehicle.

FACTS:
On March 28, 2000, the Court ruled in Florida v. J.L. that an anonymous tip identifying a man at a bus stop as having a gun did not justify a stop and frisk without some independent corroboration of the tip.  The Court, however, did not answer whether an anonymous tip that alleges great danger justifies a search where the tip was uncorroborated.  Although the Court said that allegations of a person carrying a bomb do not need to be corroborated before a search, this was mere dictum, failing to resolve the issue about drunk driving, which is at issue in the present case.

In Navarette v. California, the California Highway Patrol dispatchers received an anonymous telephone call alleging that a silver Ford F150 pickup truck ran the caller off the highway.  The anonymous caller also provided the car’s license plate number and the direction the car was driving on the highway.  This information was broadcasted to law enforcement and soon after two officers spotted the car.  While following the car, the officers did not witness any reckless driving, but stopped the vehicle nonetheless.  During the stop, after smelling marijuana, the officers searched the car and found four large bags of the illegal substance.  The officers proceeded to arrest the driver Lorenzo Navarette, and his passenger Jose Navarette.  Both men tried unsuccessfully to suppress the evidence of marijuana and ultimately pled guilty to transportation of marijuana.

The Navarette brothers are now appealing their convictions on Fourth Amendment grounds. The appeal is based on precedent stating that anonymous tips, alone, are insufficient to justify a search or seizure.  Since anonymous tips are inherently unreliable, officers are required to corroborate the information before conducting the search or seizure.

This case turns on whether there should be a “drunk or reckless driver exception” to the corroboration requirement of anonymous tips.  Since the Supreme Court decision in Florida v. J.L. did not address this issue, there is a split among the lower courts on deciding whether anonymous tips alleging drunk or reckless driving should be corroborated by police investigation before stopping a vehicle.  For example, the Eight Circuit upheld a vehicle stop even though the anonymous tip was not corroborated, reasoning that reckless driving is similar to a bomb-like danger that the Supreme Court referenced.  However, in Harris v. Commonwealth, the Virginia Supreme Court held that an anonymous tip about drunk driving did not justify a vehicle stop because the officer was unable to corroborate drunken or erratic driving despite having an opportunity to observe the driver before stopping the vehicle.  Due to this split, depending on where you are in the country, an officer can stop an alleged drunk driver based on an uncorroborated anonymous tip.
           
PETITIONER’S ARGUMENT:
The uncertainty of whether an officer needs to corroborate a drunk and reckless driving tip is part of the Navarette brothers’ argument They argue that the Court should resolve this issue and rule that anonymous tips in regard to drunk or reckless driving should be corroborated to provide the requisite reasonable suspicion to justify a stop.  Since there was no corroboration in this case, the Supreme Court should reverse their convictions because precedent dictates that anonymous tips should be corroborated.

RESPONDENT’S ARGUMENT:
On the other side, the Californian government believes that the officers complied with the narrow holding of Florida v. J.L., namely that that case was limited to an anonymous report of a nonthreatening possessory offense.  California’s contention is supported by other jurisdictions that have interpreted Florida v. J.L. as providing a balancing act, that “the need for corroboration of illegal conduct identified by the anonymous tipster is offset by the inherent danger of the conduct itself and the overall reliability of the tip.”  For these jurisdictions the “conduct” is drunk driving.

PRACTITIONERS:
The outcome of the Navarette case will either maintain the status quo or add a new exception in the Fourth Amendment analysis of whether the seizure was reasonable.  If the Court rules in favor of the Navarette brothers, the Supreme Court will be following precedent in holding that anonymous tips are inherently unreliable because the veracity and knowledge of the tipster is unknown.  If a tip has low reliability, “more information will be required to establish the requisite quantum of suspicion” to justify a vehicle stop.  Before an officer can act on the tip and stop an alleged drunk or reckless driver, the officer would need to independently corroborate the information, such as following the driver and witnessing the erratic driving behavior.

On the other hand, if the Court rules in favor of the Californian government, the Court will be veering away from its strict adherence that anonymous tips need to be corroborated.  The Court would be valuing public safety on the road.  However, ruling that police officers can act on an anonymous tip may lead to more unreasonable searches.  It may also make suppressing evidence obtained from such a search harder to achieve.

Although public safety is a compelling argument, it is up to the Supreme Court to decide whether it is so compelling as to outweigh the constitutional rights and privileges already in place.


Written by Cassandre Plantin
Staffer, Criminal Law Practitioner 



Burt v. Titlow: Double Deferential: Applying AEDPA and Strickland
           
Docket Number: 12-414
Argument Date: October 8, 2013

UPDATE:
Not too long ago, the United States Supreme Court rendered a 9-0 verdict in Burt v. Titlow, Docket No. 12-414, on November 5, 2013.  Justice Alito rendered the opinion for the Court, reversing the Sixth Circuit judgment stating that it failed to apply the “doubly deferential” standard of review.

ISSUE: 
Whether Mr. Toca, Vonlee Titlow’s attorney, provided ineffective counsel to Mr. Titlow when he withdrew Mr. Titlow’s guilty plea. 
           
FACTS:
Vonlee Titlow and his aunt, Billie Rogers, murdered Mr. Donald Rogers, Billie’s husband, by force feeding him vodka and smothering him with a pillow.  Mr. Richard Lustig, Titlow’s first attorney, reached a plea agreement deal where Titlow would testify against his aunt and would be convicted of manslaughter and receive a seven to ten-year sentence.  In explaining the State’s case and evidence to Titlow, Mr. Lustig explained that the State had evidence that could convict him for first-degree murder.  At the plea hearing, Titlow asserted that he understood the plea deal and the Michigan trial court approved the plea bargain.  However, a few nights before Billie’s trial was to start, Titlow had a change of heart.  After speaking with a Deputy Sheriff, Titlow did not want to plead guilty to a crime he did not commit.  Therefore, Titlow fired Mr. Lustig and acquired a new lawyer, Mr. Frederick Toca, and sought a new plea deal arrangement.  Titlow sought a lower minimum sentence but the prosecutor refused to give in to the new demands.  As such, Titlow withdrew his original plea and refused to testify on behalf of the prosecution.  Since Titlow did not testify, Billie was acquitted of the murder charges, but later on died.

At Titlow’s trial, Titlow testified to covering Mr. Donald Roger’s mouth and pouring the vodka down his throat but denied intending to harm Mr. Roger.  The jury, however, did not believe Titlow and convicted him of second-degree murder and he was sentenced to a twenty to forty years imprisonment.  Titlow appealed his conviction, stating that Mr. Toca was an ineffective counsel.  Both the Michigan Court of Appeals and Michigan District Court rejected Titlow’s arguments.  The Michigan Court of Appeals, in applying Strickland v. Washington, held that Mr. Toca acted reasonably.  Under habeas corpus review, the district court found that the Michigan Court of Appeals ruling was completely reasonable under the law and the facts.  However, the Sixth Circuit reversed the district court’s ruling, finding that the district court’s judgment was an “unreasonable interpretation of the factual record” and that Mr. Toca rendered ineffective assistance since he did not fully inform Titlow of the consequences of withdrawing his plea deal.  Sherry L. Burt, the Warden of a Michigan correctional facility, appealed this holding.

PETITIONER’S ARGUMENT:
Burt argued that the Sixth Circuit holding was incorrect in two regards: that “it is not ineffective assistance for an attorney to honor his client’s desire to maintain innocence” and that the Sixth Circuit did not give appropriate deference to the Michigan Court of Appeals decision as required by the Antiterrorism and Effective Death Penalty Act (AEDPA).  According to Burt, Titlow wanted to withdraw his guilty plea before enlisting Mr. Toca as his lawyer, citing to a discussion Titlow had with the deputy sheriff, and at the hearing that he “fully understood the consequences of withdrawing his plea and did so freely and voluntarily.”  Since Titlow hired Mr. Toca solely to withdraw his guilty plea, Mr. Toca did not provide ineffective assistance since he was simply honoring Titlow’s wishes.

RESPONDENT’S ARGUMENT:
On the other hand, Titlow argued that the Sixth Circuit ruling should not be overturned because Mr. Toca advised Titlow to withdraw his plea stating that he could win the case.  Further, Titlow asserts that Mr. Toca failed to conduct an investigation before advising him to withdraw his plea deal.  Since the Michigan Court of Appeals failed to analyze the substance and reasonableness of Mr. Toca’s advice, the Court applied the holding of Strickland incorrectly.
           
SUPREME COURT:
After hearing oral arguments on October 8, 2013, the United States Supreme Court credited Burt’s argument in their decision.  The Court first looked at the AEDPA which states that a “federal court may overturn the state court’s decision only if it was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”  The prisoner must present clear and convincing evidence to rebut the state court’s finding.  Here, the Court found that Titlow did not meet his burden.  The Court found that the record supported the Michigan Court of Appeals’ factual findings.  The fact that Titlow discussed his innocence with the Deputy Sheriff and when Mr. Toca was hired support the idea that Titlow had misgivings about confessing to the crime.  Furthermore, the record revealed that Mr. Toca moved to withdraw the guilty plea because the plea offer was “substantially higher than the Michigan guidelines for manslaughter.”

Next, the Court looked at the presumption of effectiveness discussed in Strickland and found that the Sixth Circuit deviated from this standard.  The Court found absence of evidence does not rebut the presumption that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Although it was claimed that Mr. Toca did not receive Titlow’s case file, Mr. Toca himself stated that “there is a lot of material here” suggesting that he did have some materials in regards to the case.  Based on these reasons, the Supreme Court reversed the holding of the Sixth Circuit Court of Appeals and upheld Titlow’s second-degree murder conviction.
           
PRACTITIONERS:

By reversing the Sixth Circuit Court’s opinion, the Supreme Court reaffirmed the idea that the burden of proving unreasonable state court fact-finding rests on the petitioner and not the state.  This holding also reaffirms the idea that state and federal courts are in a sense on equal footing and that federal judges cannot just dismiss state judge’s rulings.  This ruling is applicable to both appellate court judges and defense attorneys.  Appellate court judges must defer to state court judges’ judgments and reasoning unless the holding is unreasonable based on the facts and evidence on the record.  In regards to a defense attorney representing a prisoner for ineffective counsel, the attorney must meet their burden by a clear and convincing standard.  This means that the attorney must point to specific facts or evidence that is in the record and argue how the holding of the court below is not supported by the evidence.  A lack of evidence is not good enough.

Written by Cassandre Plantin
Staffer, Criminal Law Practitioner 



United States v. Castleman: Defining “Physical Force”  

Docket Number: 12-1371
Argument Date: January 15, 2014

ISSUE:
Whether a state conviction for misdemeanor domestic assault, defined as intentionally or knowingly causing bodily injury, falls under the scope of misdemeanor crime of domestic violence for federal prosecution purposes.

FACTS:
In 2001, James Castleman pled guilty to a misdemeanor domestic assault in Tennessee for knowingly or intentionally causing bodily harm to the mother of his child.  At the time, a misdemeanor domestic assault was defined as “intentionally, knowingly or recklessly caus[ing] bodily injury to” a family member or a household member.  Seven years later, Castleman and his wife were buying firearms and selling them on the black market.  A year later, law enforcement charged Castleman with violating federal statute Section 922(g)(9).  This statute prohibits possession of a firearm by a person convicted of a misdemeanor crime of domestic violence.  According to federal statute Section 921(a)(33)(A)(ii), a misdemeanor crime of domestic violence is defined as “a misdemeanor under . . . state . . .  law and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed . . .  by a person with whom the victim shares a child in common . . . . ”

Castleman moved to dismiss the charge, stating that his prior domestic assault offense is not a misdemeanor crime of domestic violence since his prior offense did not “ha[ve], as an element, the use . . .  of physical force.”  The United States District Court for the Western District of Tennessee granted Castleman’s motion stating that “an assault statute that requires the mere causation of bodily injury does not necessarily require the ‘use of physical force.’”  The Sixth Circuit affirmed the district court’s ruling.  The Sixth Circuit looked at other federal statutes that also used the phrase “physical force” in affirming the Western District of Tennessee’s judgment.  The court looked at Sections 16(a) and 924(e)(2)(B)(i) and found that “physical force” was equal to a “crime of violence” and “violent felony, respectively.”  In defining “crime of violence” and “violent felony,” both statutes said it is a crime “that has as an element the use, attempted use, or threatened use of physical force.”  Since the definition of misdemeanor crime of domestic violence dropped the “threatened use,” the Sixth Circuit reasoned that Congress intended to deal with offenses criminalizing degrees of force.  The court also based its interpretation of Section 922(g)(9) by looking at Sections 16(a) and 924(e)(2)(B)(i) which had similar language to and was enacted before Section 922(g)(9).  The United States is now appealing the decision.

PETITIONER’S ARGUMENT:
The UnitedStates argues that the Six Circuit incorrectly interpreted Section 922(g)(9) and added to the circuit split on what “physical force” means.  According to the United States, the Sixth Circuit interpretation is wrong because violent crime is not required for a crime to qualify as a misdemeanor crime of domestic violence and that domestic assault by intentionally or knowingly causing bodily injury has, as an element, the use of physical force.  In looking at Johnson v. United States, the United States argues that the Court did not rule on whether “’physical force’ had the same meaning in the context of Section 922(g)(9)’s definition of ‘misdemeanor crime of domestic violence.’”  The Sixth Circuit, along with the Ninth and Tenth Circuits, have defined that Section 922(g)(9) only covers crimes that involve “the violent force against the body of another individual.”  On the other side, the First, Eighth, and Eleventh Circuits have defined “physical force” as “crimes characterized by the application of any physical force.”

RESPONDENT’S ARGUMENT:
Castleman, on the other hand, disagrees with the United States’ argument and believes that the Sixth Circuit court correctly interpreted the federal statute.  The crux of Castleman’s argument is that intentionally or knowingly causing bodily injury is not limited to the use of physical force but rather that it could be achieved through coercion or deception.  Further, they also interpreted the Johnson case to define “use of physical force” to mean the use of violent force in connection with commission of a violent crime.
           
PRACTITIONERS:
The outcome of United States v. Castleman tests the relationship between state criminal laws and federal law.  The verdict in this case will consequently affect which prior offenders will be convicted for illegal firearm possession.  The outcome will either increase or decrease the potential number of prosecutions and the scope of section 922(g)(9).  If the Supreme Court affirms the Sixth Circuit judgment, future prosecutors will have a hard time keeping prior offenders from obtaining guns.  Prosecutors would need to prove that the offender used violent or strong physical force against a person in order for their state assault or battery charge to fall within the scope of Section 922(g)(9).  However, if the Supreme Court overturns the Sixth Circuit opinion, then potentially all state convictions for assault and battery charges would fall within the scope of the federal statute, if the prior offender is later on caught in possession of a gun.  This would make it easier for prosecutors to enforce the federal statute despite the various state criminal assault and battery statutes.

Written by Cassandre Plantin
Staffer, Criminal Law Practitioner 



Kaley v. United States: Frozen Assets Needed to Retain Counsel of Choice

Docket Number: 12-464
Argument Heard: October 16, 2013

ISSUE:
Whether, when a post-indictment, ex parte restraining order freezes assets needed by a defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

FACTS:
Kerri & Brian Kaley were indicted for stealing medical devices and selling them on the black market.   Post indictment, the government was granted an order to restrain assets that were traceable to the crime.  Specially, the government froze an equity line the Kaleys took out on their home, pre-indictment, and placed the money in a Certificate of Deposit to afford retained counsel.  However, these assets were frozen as a result of the investigation.  The Kaleys argued the order violated their Fifth Amendment rights to due process and their Sixth Amendment right to counsel of choice.  The Kaleys argued for a full pretrial, post-restraint evidentiary hearing to challenge the validity of the forfeiture.  The Southern District of Florida denied the motion to vacate the order and the request for an evidentiary hearing on the merits of the case.  The Eleventh Circuit reversed the denial of the evidentiary hearing.  The District Court held a hearing to challenge the traceability to the charged conduct and upheld the protective order.  The Eleventh Circuit upheld the District Court’s ruling.

PETITIONER’S ARGUMENT:
The Kaleys argued that post- Caplin & Drysdaleand Monsantoappellate courts have largely held that a criminal defendant is entitled to some type of pretrial hearing to challenge a restraint that prevents the defendant from retaining counsel of choice.  While courts have disagreed on the scope of a pretrial hearing, most will allow a defendant to challenge the factual and legal basis for the restraint per Matthews.

RESPONDENT’S ARGUMENT:
The brief for the United States argues that there is no constitutional right to a hearing challenging the evidentiary foundations for the forfeiture of assets pre-trial.  This hearing would conflict with a substantial amount of precedents holding that a grand jury’s finding of probable cause is conclusive.  They further argue that the Matthews test is improper because it overlooks the role of the grand jury’s indictment and therefore the Medina test is more appropriate. Under the Medina test, petitioners fail because the grand jury’s finding of probable cause makes judicial finding on that issue unnecessary.  Therefore, because the petitioners cannot show that the denial of their evidentiary hearing offends fundamental justice, they should not be entitled to a hearing.  Moreover, even the choice of counsel does not change the calculation because public interest in preserving seized assets overrides the defendant’s interests when probable cause has been found.  Further, an evidentiary hearing risks premature disclosure of the government’s evidence, which can jeopardize the integrity of the fact finding process and the safety of witnesses.

AMICUS BRIEF OF NEW YORK COUNSEL OF DEFENSE LAWYERS:
The New York Counsel of Defense Lawyers filed an amicus brief arguing that the New York system, which allows for pretrial hearings challenging probable cause has not resulted in abuse of the system.  In fact, these hearings are rare and often promote constitutional rights, are efficient, and encourage prompt resolution of cases.

AMICUS BRIEF OF THE FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS:
The Florida Association of Criminal Defense Lawyers argues that the ex parte nature under which the property was seized necessarily warrants the hearing requested under 21 U.S.C. § 853(e)(3), allowing a post deprivation hearing challenging all aspects of the ex parte order.  As such, the court need not reach the constitutional question presented.  But, if it does have due process concerns, it should find in favor of the “opportunity to challenge all aspects of the ex parte order.”

AMICI BRIEF OF THE GUN OWNERS FOUNDATION, ET AL.:
The Gun Owners Foundation, along with other parties, argue that to find in favor of the United States would add to the government’s already overwhelming arsenal of power to coerce a defendant into pleading guilty and be virtually automatic at the Department of Justice’s request.  The Foundation further notes that the DOJ has the most to gain from this type of forfeiture.

AMICUS BRIEF OF THE INSTITUTE FOR JUSTICE:
The Institute for Justice writes that this hearing should be granted regardless of a defendant’s need for counsel because of the right of individuals to be free from arbitrary government interference.  As such, an individual should be given a prompt and meaningful way to challenge government seizure of their property.

PRACTITIONERS:
Finding in favor of a pre-trial challenge of the validity of the indictment could possibly be an efficient way to save both the court’s and defendant’s resources.  Allowing an early challenge to the validity of an indictment, could serve as an additional pre-trial hearing allowing both parties to quickly determine how best to proceed.  Moreover, this case is particularly important for the public and private sector as it could affect a defendant’s ability to hire private counsel thus expanding the burden on public defenders. 

Written by Annie Berry
Staffer, Criminal Law Practitioner 



Rosemond v. United States: The Crime of Aiding and Abetting the Use of a Firearm

Docket Number: 12-895
Argument Date: November 12, 2013

ISSUE:
Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of intentional facilitation or encouragement of the use of the firearm, as held by the: First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or mere knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and DC Circuits.

FACTS:
Vashti Perez, Ronald Joseph, and Justus Roesmond agreed to meet up and sell a pound of marijuana to Ricardo Gonzales and Coly Painter.  The marijuana belonged to Ronald Joseph and Justus Rosemond.  Perez drove Joseph and Roesmond to a park, where Gonzalez entered the car, inspected the marijuana, and tried to take it without paying.  Rosemond was punched in the face and chased after Gonzales.  As he and Painter fled on foot, someone from Rosemond’s car fired shots at Gonzalez.  Perez, Rosemond, and Joseph pursued Gonzalez and Painter in Perez’s car.  The car was pulled over, approximately a mile from the park and no weapons were found in the vehicle.  Joseph later testified that no weapons were found because Rosemond had concealed it under Perez’s backseat.  Several days later, Perez gave a written statement to the police identifying Rosemond as the shooter.

Rosemond was charged with possession with intent to distribute, aiding and abetting the use of a firearm in relation to a drug-trafficking crime, possession of ammunition by a previously convicted felon, and possession of ammunition by an alien unlawfully in the United States.  

The government tried Rosemond on the aiding and abetting count by saying that it was Rosemond who fired the gun, and in the alternative, that Rosemond aided and abetted the person who fired the gun.  Rosemond was found guilty of all charges, sentenced to 168 months imprisonment followed by 60 months supervised release, and appealed to the United States Tenth Circuit Court of Appeals, arguing that the “aiding and abetting” jury instruction was in error.  The relevant jury instruction read: “[T]o find that the defendant aided and abetted another in the commission of the drug-trafficking crime charged, you must find that: (1) the defendant knew his cohort used a firearm in the drug-trafficking crime, and (2) the defendant knowingly and actively participated in the drug-trafficking crime.”  Rosemond argued that the government was required to prove that he facilitated or encouraged his cohort’s discharge of the firearm, rather than simply proving that he knew his cohort discharged the firearm.  The Tenth Circuit affirmed the trial court’s decision.

PETITIONER’S ARGUMENT:
Rosemond argues that 18 U.S.C. 924(c)(2)(A) requires proof that the defendant acted intentionally to facilitate or encourage the offense.  This interpretation is rooted in the plain language of the statute and the historical understanding of what constitutes aiding and abetting.  Moreover, petitioner argues that the government must prove that the defendant acted intentionally to facilitate or encourage the use of the firearm specifically.  The brief continues that the Tenth Circuit’s interpretation of aiding and abetting fails to require proof of the two separate offenses, that it blurs the lines between them, and that the court’s interpretation functionally amounts to a strict liability offense.  Therefore, because of the court’s severing of culpability and punishment, and the rule of lenity, Rosemond’s 924(c) conviction (aiding and abetting) must be reversed.

RESPONDENT’S ARGUMENT:
The brief for the United States argues that the ruling was correct because any active participation in a crime of violence or drug-trafficking crime is sufficient for the affirmative act required to find accomplice liability.  As the government sees it, an accomplice does not need to directly encourage every element of each offence because commission of a crime of violence or drug-trafficking offense is already an essential conduct element of §924(c), therefore the affirmative act requirement is met.  Moreover, the government finds no justification to exempt individuals who “intentionally join armed confederates” in violent crimes or serious drug offenses from §924(c).  However, even in a world where the court finds otherwise, the brief maintains that any instructional error was harmless and the conviction should be maintained.

AMICI BRIEF OF THE GUN OWNERS FOUNDATION ET AL.:
Amici on behalf of the Gun Owners Foundation, U.S. Justice Foundation, Gun Owners of America, Inc., Conservative Legal Defense and Education Fund, and Policy Analysis Center written in support of petitioner, argues that the scope of inquiry in this case should be expanded and evaluated in light of Alleyne v. United Stateswhich overruled Harris v. United Statescreating three firearms offenses (carrying a firearm, brandishing a firearm, discharging a firearm) out of one offense found in §924(c)(1)(A).  As such, in order for the defendant to be charged with aiding and abetting under §924(c)(1)(A), there must be evidence that the defendant intended for the firearm to the brandished or discharged.  Under this theory, the government would have to prove that the defendant knew the firearm was brandished or discharged and not that he simply unlawfully used, carried, or possessed it.  The amici argues that the government’s theory of aiding and abetting in this case will unnecessarily expand prosecutorial discretion in terms of mandatory minimum sentences and “undermine the role of the jury envisioned in Alleyne.”

AMICUS BRIEF OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS:
The amicus brief on behalf of the National Association of Criminal Defense Lawyers in support of the petitioner, argues that the Tenth Circuit’s interpretation of aiding and abetting simply requires that the government demonstrates that the defendant participated and intended to facilitate the predicate crime of violence or drug-trafficking and that he acquired knowledge of the violation.  However, this interpretation would allow for convictions where the evidence shows the defendant’s participation in the predicate crime and not the crime he is charged with, aiding and abetting, and where the evidence demonstrates the defendant’s knowledge of the crime, he or she is charged with aiding and not with intent to facilitate that crime.  This dramatically expands the scope of liability under the federal statute.

PRACTITIONERS:
A finding that simple knowledge that a firearm was going to be used during the commission of an offense is sufficient to find an individual guilty of aiding and abetting would drastically expand the scope of liability and only require the prosecutor prove the defendant knew, or should have known, a gun was going to be used in the offense, regardless of whether or not the gun was used to advance the goals of the crime.  As such, in order to avoid conviction, the defense has the additional burden of disproving the defendant’s knowledge of or facilitation of the use of the gun.

Written by Annie Berry
Staffer, Criminal Law Practitioner 



White v. Woodall: Absence of an Adverse Inference Instruction 

Docket Number: 12-794
Argument Date: December 11, 2013

ISSUE:
First, whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief for failure to deliver an adverse inference instruction when there is no clear requirement it be issued during the capital penalty phase when a non testifying defendant has pled guilty to both the crimes and aggravating circumstances.  Second, whether the Sixth Circuit violated the harmless error standard in Brecht, by ruling that the absence of an adverse inference instruction was not harmless in spite of the evidence presented.

FACTS:
Robert Woodall pled guilty to capital murder, capital kidnaping, and first degree rape.  Woodall did not testify during the penalty phase and requested the jury be instructed to not draw any adverse inferences from his decision not to testify.  The trial court refused because Woodall had pled guilty, therefore waiving his right to not incriminate himself.  Woodall was sentenced to death on the murder conviction and life imprisonment for capital kidnapping and first degree rape.  The Kentucky Supreme Court affirmed.  Woodall filed a federal habeas petition under 28 U.S.C. §2254(d)(1), which requires that an application not be granted unless the adjudication resulted in a contrary decision or unreasonably applied Federal law.  The Western District of Kentucky granted relief and the Sixth Circuit affirmed the District Court’s decision.

PETITIONER’S ARGUMENT:
Petitioner’s brief argues that the Sixth Circuit erred when it granted habeas relief because there was no clearly established Federal law regarding whether an adverse inference instruction, created by Carter, is required in the penalty phase of trial after the defendant has plead guilty.  Petitioner says that Carter, Estelleand Mitchell do not extend beyond the fact finding portion of trial and that when read in pari-materia they do not clearly establish a constitutional right to a no-adverse-inference instruction during a penalty phase proceeding.  Because there is no clear precedent, Petitioner believes the granting of habeas was unfounded and that, even if there was error, it was harmless under the Brecht standard.

RESPONDENT’S ARGUMENT:
Respondent’s brief argues that he had a “clearly established” constitutional right to the no-adverse-inference instruction as established by the framework of 28 U.S.C. 2254, Carter, Estell, and Mitchell.  According to the Respondent, these three cases collectively hold that an adverse inference instruction must be given if requested, that the Fifth Amendment applies to capital sentencing after a jury’s finding of guilt, and that a guilty plea does not waive a defendant’s Fifth Amendment rights at subsequent sentencing proceedings and, therefore, no adverse inference may be raised by a defendant’s choice not to testify.  The brief continues by saying that the Kentucky Supreme Court unreasonably applied these precedents and that this error had “substantial and injurious effect,” which was aptly corrected by the Sixth Circuit’s ruling.

AMICUS BRIEF OF THE CRIMINAL JUSTICE LEGAL FOUNDATION:
The amicus submitted by the Criminal Justice Legal Foundation in favor of the petitioner says that the purpose of 28 U.S.C. §2254(d)(1) was to “curb delays, to prevent ‘retrials’ on federal habeas, and give effect to state conviction to the extent possible under law.”  The organization argues that more concrete rules are required and that the Sixth Circuit incorrectly applied the “unreasonable application” portion of the statute and that this language should be expressly disapproved of in the instant case because it “threatens to enable lower federal courts to smuggle in the back door exactly the kind of ruling that Congress sought to bar when it limited ‘clearly established Federal law’ to the precedents.”  The organization continues that these precedents should not be extended into new territory when the facts are so drastically different.

AMICUS BRIEF OF THE STATE OF TEXAS:
The amicus submitted by the state of Texas aligns with the Petitioner, arguing that the Kentucky Supreme Court should have rejected the Respondent’s Carter claim on the reasonable ground that it was a harmless error beyond a reasonable doubt.  The reason this error was harmless was due to the “overwhelming evidence” of the Respondent’s crime and that the federal judiciary is not in an appropriate position to “condemn a state court’s harmless-error decision.”

AMICI BRIEF OF ARIZONA ET AL.:
Amici submitted by Arizona and joined by thirteen other states argues that the Carter instruction serves no purpose when the defendant’s admissions establish the same facts a jury “might impermissibly infer from his silence.”  The brief continues that the no-adverse-inference instruction is only required when the defendant chooses not to testify concerning contested adverse facts and that affirming the Sixth Circuit’s decision will undermine sentencing proceedings without furthering any Fifth Amendment principle.

PRACTITIONERS:
The outcome of White v. Woodall, is critical, especially for defense attorneys, in considering whether or not to advise their clients to plead guilty to the offense charged, or have them testify at trial.  Interesting enough is to see whether or not the Court determines the adverse inference instruction is not mandatory, which further questions whether the right not to testify is absolute or with exception.  



Written by Annie Berry
Staffer, Criminal Law Practitioner 

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