Law Office of George B. Dombart (210) 281-1394 DWI, Drug and Criminal Defense Attorney serving Texans in State and Federal Courts Serving San Antonio and South Texas

Monday, June 08, 2009

Boyle v. United States: Not much structure needed for RICO

The Supreme Court held that an association-in-fact enterprise under RICO, 18 U.S.C. § 1962(c), must have a "structure," but it need not be, as Boyle sought the jury to be instructed in his bank robberies case, "an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages." The "structure" contemplated by the RICO statute has three features: a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise’s purpose. The Court rejected Boyle’s argument the structure required additional features, such as a hierarchical structure or a chain of command. The Court also rejected the argument that its construction would create a merger of the RICO § 1962(c) crime with other federal offenses, pointing out that, in relation to conspiracy, it demands "much more" than proof of a "brief" agreement.

Monday, June 01, 2009

Bobby v. Bies: No Double Jeopardy bar on mental capacity in death cases

A State court’s determination that a defendant’s mental retardation was a mitigating factor in the penalty phase of a capital case does not trigger Double Jeopardy issue preclusion, and foreclose the question whether, in the wake of the subsequently-decided decision in Atkins v. Virginia, the defendant is ineligible for the death penalty because he is mentally retarded.

Tuesday, May 26, 2009

Montejo v. Lousiana: Michigan v. Jackson overruled leaving an interrogation free-for-all

An inculpatory statement given by a defendant to police after the court ordered the appointment of counsel may be introduced at trial as evidence against him. In so holding, the Court overruled Michigan v. Jackson, which presumed that a waiver of the right to counsel was invalid once counsel was appointed at arraignment, and did not require the defendant to invoke the right to counsel. The Court explained that the protections of Miranda, Edwards and Minnick v. Mississippi, sufficed to protect defendants against police badgering that induced them to waive the right to counsel. Under Miranda, the suspect must be advised of his right to counsel. Under Edwards, once a defendant has invoked the right to counsel, interrogation must stop. Under Minnick, no subsequent interrogation may take place until counsel is present. These protections meant that Michigan v. Jackson’s additional prophylactic layer would not be justified by the additional costs of invalidating confessions and letting criminals go free. The Court noted that, on remand, Montejo would be free to argue that he had made a clear assertion of the right to counsel prior to interrogation, and that the subsequent interrogation therefore violated Edwards v. Arizona. Montejo would also be free to argue that any waiver was involuntary because it was based on misrepresentations by police as to whether he was appointed a lawyer.

Abuelhawa v. United States: Drug Telephone Counts Punish Sales Not Purchases

Whether the use of a telephone to buy drugs for personal use "facilitates" the commission of a drug "felony," in violation of 21 U.S.C. § 843(b), on the theory that the crime facilitated by the buyer is not his purchase of drugs for personal use (a misdemeanor), but is the seller’s distribution of the drugs to him (a felony). The Court answered in the negative, holding that using a telephone to make a misdemeanor drug purchase does not "facilitat[e]" felony drug distribution in violation of §843(b). Stopping with the plain meaning of "facilitate" here would ignore the rule that because statutes are not read as a collection of isolated phrases, "[a] word in a statute may or may not extend to the outer limits of its definitional possibilities." Dolan v. Postal Service, 546 U. S. 481. Here it does not.

Monday, May 04, 2009

Flores-Figueroa v. United States: "Knowingly" applies to all elements of aggravated identity theft law

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), prescribes a mandatory two-year term of imprisonment for any person who, "during and in relation to" certain other specified crimes, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." Flores-Figueroa, a Mexican native, worked at a steel plant in East Moline, Ill. He was accused of using a phony Social Security card and a phony alien registration card. The two numbers on those cards had been assigned to someone else; he argued that the enhanced mandatory minimum sentence contained in § 1028A(a)(1) did not apply to him because he used the documents without knowing the numbers were actual numbers assigned to another person. He was convicted and sentenced to 75 months in prison, including a consecutive 24 month enhancement required 1029A(a)(1). The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information. In an opinion by Justice Breyer, the Supreme Court reversed, 9-0, holding that ordinary English grammar suggests that the term "knowingly" applies to all of the statutory elements. The court rejected the government’s focus on what the words necessarily imply (that is -- "John knowingly threw away the homework of his sister" does not necessarily imply that John knew the homework belonged to the sister) in favor of a test that looks at the words would ordinarily imply (that is -- that John knew whose homework it was). It then noted that in criminal law, courts typically apply the required mens rea to every element in the statute. The Court rejected the government’s legislative history argument without commenting on whether the statutory language was ambiguous. It rejected the government’s argument about the difficulty of proving such knowledge by reference to the "classic" identity theft case, which in the Court’s opinion involves using someone’s information to get access to their bank account or credit card. Finally, the Court found that "concerns about practical enforceability are insufficient to outweigh the clarity of the [statutory] text." Justice Scalia (joined by Justice Thomas) concurred in part and in the judgment, taking issue with the Court’s statement that courts typically apply the mens rea to all elements of a criminal statute. He pointed out that he hasn’t canvassed all the cases so didn’t know if that was true and that he was not prepared to say that it should be true. He also disagreed with the Court’s legislative history discussion: "[t]he statute’s text is clear, and I would reverse the judgment of the Court of Appeals on that ground alone." Justice Alito also concurred in part and in the judgment, because he felt that the Court’s point about ordinary English usage was overstated and that context was always the paramount indicator of meaning. He noted that the language used in criminal statutes is often formulated differently from ordinary speech. Justice Alito would start with a general presumption that the specified mens rea applies to all of the elements of the offense, but would also recognize that there are instances where context may rebut the presumption. He would not join any part of the opinion that "may be read to adopt an inflexible rule of construction that can rarely be overcome by contextual features pointing to a contrary meaning." The case resolves a circuit split, and overrules contrary precedent in the Fourth, Eighth, and Eleventh circuits. Its reasoning can also be used to renew challenges to other statutes in which courts have not applied the mens rea to all of the elements. Justice Alito’s concurrence offers the following examples: 18 U.S.C. § 2423(a)(knowingly transporting an individual under the age of 18 with the intent that the person engage in criminal sexual activity, where courts have not required proof that the defendant knew the person’s age); 21 U.S.C. § 861(a)(1)(knowingly enticing a person under the age of 18 to violate drug laws, where courts have not required proof that the defendant knew the person’s age); 8 U.S.C. § 1327 (knowingly assisting an alien who is ineligible to enter the US because s/he has been convicted of an aggravated felony, where courts do not require proof that the defendant knew the alien had been convicted of an aggravated felony). [Adapted from summary by Sara Noonan].

Wednesday, April 29, 2009

Dean v. United States: Accidental discharge sufficient for 924(c) sentencing enhancement

Dean’s gun accidentally discharged during a bank robbery, but no one was harmed. Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was "discharged" during the robbery, he was sentenced pursuant to 924(c)(1)(A)(iii) to a 10-year mandatory minimum prison term. He appealed, contending that the discharge was accidental, and that 924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required. The Supreme Court affirmed, holding that § 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.

Kansas v. Ventris: Exclusionary rule unnecessary to protect against Sixth Amendment violation through jailhouse snitch

Ventris was charged with murder and other crimes. The state planted another defendant in his cell as a "human listening device," even though Ventris’ right to counsel had attached. Predictably, Ventris made incriminating statements to his cellmate. The state later conceded that it violated Ventris’ Sixth Amendment right to counsel when it surreptitiously planted the snitch in Ventris’ jail cell. The state was prohibited from using the confession in its case-in-chief, but was allowed to use it to impeach Ventris’ own testimony at trial. Kansas held that such use was impermissible under the federal exclusionary rule and conceded that it had violated Ventris’ Sixth Amendment rights. The Supreme Court held 7-2 that this violation did not require exclusion of the informant’s testimony when offered for purposes of impeachment, reasoning that the Sixth Amendment violation occurred when the uncounseled interrogation was conducted, not at trial The question whether to exclude the statement at trial was a separate question, involving the "remedy" for the violation. The Court concluded that the interest in exclusion was outweighed by the need to prevent perjury and the integrity of the trial process. The Court found little appreciable police deterrence would occur as a result of exclusion because police, if they opted to obtain uncounseled statements, could not likely anticipate that the defendant would testify at trial, and would testify inconsistently with the prior uncounseled statement. Ominously, the Court refused to confirm Kansas’s concession of a Sixth Amendment violation, opening a wide door in future cases for the state or federal government to argue that no constitutional violation occurs where police obtain a voluntary statement by way of a jailhouse snitch.

Tuesday, April 28, 2009

Cone v. Bell: No defaults in habeas despite state court holdings to contrary

After the State discredited Cone’s defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was convicted and sentenced to death. The Tennessee Supreme Court affirmed on direct appeal and the state courts denied postconviction relief. Later, in a second petition for state postconviction relief, Cone raised the claim that the State had violated Brady v. Maryland by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The state postconviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings. The state court of appeals affirmed. Cone filed a petition for a federal writ of habeas corpus, which was denied on two grounds, (1) The Brady claim was procedurally barred because the state courts’ disposition rested on adequate and independent state grounds that Cone had waived it by failing to present his claim in state court; (2) Even if he had not defaulted the claim, it would fail on its merits because none of the withheld evidence would have cast doubt on his guilt. The Sixth Circuit agreed with second point, but considered itself barred from reaching the claim’s merits because the state courts had ruled the claim previously determined or waived under state law. The Supreme Court reversed, holding that the state courts’ rejection of Cone’s Brady claim does not rest on a ground that bars federal review. Neither of the State’s asserted justifications for such a bar–that the claim was decided by the State Supreme Court on direct review or that Cone had waived it by never properly raising it in state court–provides an independent and adequate state ground for denying review of Cone’s federal claim. The state court’s denial of the Brady claim on the ground it had been previously determined in state court rested on a false premise: Cone had not presented the claim in earlier proceedings and, consequently, the state courts had not passed on it. The Sixth Circuit’s rejection of the claim as procedurally defaulted because it had been twice presented to the Tennessee courts was thus erroneous. The Supreme Court found unpersuasive the State’s alternative argument that federal review is barred because the Brady claim was properly dismissed by the state courts as waived. Those courts held only that the claim had been previously determined, and the Supreme Court would not second-guess their judgment. Because the claim was properly preserved and exhausted in state court, it is not defaulted. Although the Court did not believe that the withheld evidence sustained Cone’s insanity defense at the guilt phase, it did hold the lower federal courts failed to adequately consider whether the withheld documents were material to Cone’s sentence. Both the quantity and quality of the suppressed evidence lend support to Cone’s trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State’s contrary arguments were false and misleading. Because the suppressed evidence might have been material to the jury's assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted.

Tuesday, April 21, 2009

Arizona v. Gant: Restricting searches of recently occupied vehicles

Police officers went to a house suspected of being used for narcotics activity. One officer knocked on the door, and Rodney Gant answered the officer’s knock on the door. The officers asked to speak with the homeowner, but Gant told them that the owner was not at home and would not return until later that day. Gant gave the officers information about his identity. The officers left and ran a records check on Gant and discovered that his license was suspended and that he had an outstanding warrant for driving with a suspended license. The officers returned to the house that evening, finding two individuals outside the house. After investigation, they were arrested. While the officers were handcuffing the individuals and placing them in patrol cars, Gant drove up in his car and parked in the driveway. One officer summoned Gant as he got out of his car, and Gant walked approximately 8-12 feet toward the officer. The officer told Gant that he was under arrest for driving with a suspended license, handcuffed him, and placed him in a patrol car. Officers then searched the passenger compartment of Gant’s car and found a plastic baggie containing cocaine. Gant was charged with one count of possession of a narcotic drug for sale and one count of possession of drug paraphernalia. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. The state Supreme Court reversed, distinguishing New York v. Belton, 453 U. S. 454–which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant's lawful arrest–on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U.S. 752 , requires that a search incident to arrest be justified by either (a) the interest in officer safety or (b) the interest in preserving evidence, and the circumstances of Gant’s arrest implicated neither of those interests, the state Supreme Court found the search unreasonable. The U.S. Supreme Court affirmed, holding that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Warrantless searches "are per se unreasonable," "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U. S. 347 . The exception for a search incident to a lawful arrest applies only to "the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." Chimel, 395 U. S., at 763. The Court rejected a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton v. United States, 541 U. S. 615 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license–an offense for which police could not reasonably expect to find evidence in Gant’s car. The search in this case was therefore unreasonable. In the end the Court was unpersuaded by the State’s argument that an expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The Court found that the state seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with the Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103 , and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Finally the court held that stare decisis does not require adherence to a broad reading of Belton, because 28 years of experience has proved that the assumption underpinning that case is unfounded, authorizing "myriad unconstitutional searches."