Five men formerly associated with the Holy Land Foundation (HLF) were sentenced to 15 to 65 years by United States District Judge Jorge Solis of Dallas for providing material support to a terrorist organization. The jury found that the HLF funneled at least 12.4 million dollars to Hamas. While the Holy Land Foundation claimed to be a charitable organization a jury found that the organization and the five individuals were providing material support to a terrorist organization. The claim is that the organization was channeling money to Hamas a Palestinian organization listed as a terrorist organization by President Clinton.

At one point the HLF was the largest Islamic charity in the United States assisting the victims of natural disasters as well as supporting schools and other charitable goals. But at the same time it channeled some of the charitable funds through Hamas and assisted Hamas in some of its projects. In 1991 after the terrorist attack on the Twin Towers and the Pentagon the FBI and the European Union froze its assets. In 2004 it was indicted along with the leadership. In 2007 a jury found the leaders not guilty on some counts and it was deadlocked on other counts. Last year the government retried the leaders on the deadlocked counts and this week Judge Solis sentenced Shurki Abu Baker, Mohammad El-Mezain, Ghassan Elashi, Mufid Abdulqader and Abdulrahman Odeh to prison terms ranging from 15 to 65 years according to Jurist

Under the Antiterrorism and Effective Death Penalty Act it is assumed that any money given to a terrorist organization, even for its charitable deeds supports the organization and can be considered providing material support to the organization.

The FBI tapped Mohammed Said’s cell phone thinking he was a major drug dealer. They heard six conversations between Said and Salman Khade Abuelhawa in which they arranged two cocaine sales to Abuelhawa, each for one gram. A sale of cocaine is a felony and a purchase for personal use is a misdemeanor. But the use of a telephone to facilitate a felonious drug transaction is a felony under 21 USC 843(b). Poor Abuelhawa was charged with six felonies, one for each telephone call. He faced 24 years for the felonies as contrasted to two years for two misdemeanors. His attorney objected that he was only committing a misdemeanor. But both the District Court and the Fourth Circuit Court of Appeals disagreed. (It should be noted that the Seventh Circuit in a similar case agreed with the Fourth Circuit and the Tenth Circuit disagreed finding it not to be facilitation.) They said the plain meaning of “facilitate” is to assist and Abuelhawa was using the phone to assist Said commit a felony. Luckily the Supreme Court in an unanimous decision in United States v. Abuelhawa ruled that a buyer is a buyer and a seller is a seller and the buyer is not facilitating the seller.

So Abuelhawa’s six felony convictions are reversed.

In Michigan v. Jackson the Supreme Court held that if a defendant asserts his/her right to counsel at an arraignment or similar hearing any waiver of the right to have counsel present when the police initiate an interrogation is considered invalid. In Montejo v. Louisiana the Supreme Court yesterday overruled Jackson

In Montejo, a murder case, the defendant remained quiet while the Louisiana Court at what it calls a 72 hour hearing automatically appointed counsel. But before counsel could meet with the client the police got the defendant to show the police where the murder weapon was located. While the defendant was helping the police find the weapon and after Miranda warnings were given and waived the defendant wrote a letter to the family of the victim apologizing for killing the victim. Over objection this letter was read at trial and the defendant was convicted of murder.

Under a strict reading of Jackson the facts in Montejo do not apply since there was no request for counsel. But the Supreme Court was worried about the uniform application of the law, since the states divide with approximately half requiring a defendant to request counsel and approximately half automatically appointing counsel. The rule of law should not depend on whether the state requires a request or automatically appoints counsel.

But the underlying reason for Jackson, according to the Court, the prevention of badgering by the police once a defendant requests counsel is not applicable in those states that automatically appoint counsel. Furthermore the Court found in an opinion by Justice Scalia that defendants are sufficiently protected by Miranda, which requires that defendants be told that they have a right to the presence of counsel at an in custody interrogation, Edwards v. Arizona, which held that once a defendant had asserted his/her Miranda rights further interrogation could not occur until an attorney was appointed, and Minnick v. Mississippi which held that the attorney must actually be present at any interrogation after the defendant asserts his/her Miranda rights. Weighing the injury to the truth finding function of our courts against the protection of Fifth and Sixth amendment rights provided by Miranda, Edwards, and Minnick the majority of the Court found that Jackson’s protection of the defendant’s rights was outweighed by society’s need for valid confessions.

Justice Stevens, in dissent, points out that the majority misunderstand the basis for Jackson. It is not based upon the Fifth Amendment need to protect the defendant from badgering as is Edwards, but rather it is based on the Sixth Amendment need to ” ‘protec[t] the unaided layman at critical confrontations with his adversary,’ ” Unlike Edwards, and like Jackson, Montejo involves post arraignment police interrogation. It is only at arraignment that the Sixth Amendment right to counsel is incurred. While Justice Stevens agrees that the Louisiana Supreme Court does a great disservice to the Supreme Court’s interpretation of Jackson. He would merely override the Louisiana Supreme Court’s decision and he would maintain the ruling of Jackson under the rule of stare decisis, particularly in light of the fact that none of the parties asked that it be overruled.

Delray Price was a passenger sitting in the right rear seat of a car driven by Rosie Lewis. A friend of Rosie Lewis sat in the right front seat and another man sat in the right rear seat. Portland police officers saw the car and recognized Price and the other man as being parole violators. They pulled over the car and arrested the two men. Prior to pulling over the vehicle they saw Price bend over. The officers found a gun under the driver’s seat and Price was charged with possession of the weapon.

At trial Antoinette Phillips testified for the prosecution that shortly before the arrest she saw Price with a gun tucked in his waistband.

Despite his attorney’s best efforts to discredit Phillips, Price was convicted and he was sentenced to nearly eight years in prison on the gun charges..

After the trial his attorneys discovered that Phillips had a long criminal history including numerous incidents of moral turpitude, which would have placed doubt on her credibility if the incidents had been put before the jury.

Price’s attorney brought a motion for a new trial.. The district attorney testified at the hearing on the motion that he did not remember whether or not he received Phillips criminal history prior to trial. But the prosecutor has a duty not only to turn over exculpatory and impeaching evidence but to obtain such evidence from the police and any other organization involved in the arrest and conviction. The lead case in this are is Brady v. Maryland and the d=evidence is often call Brady evidence.

In any case the trial court refused to grant a new trial and the case was appealed to the Ninth Circuit Court of appeals.

Unlike most attorneys who have a duty only to their client the prosecutor has a duty not only to his client (the government) but also to do justice. Therefore he/sher has a duty to learn of the existence of favorable evidence to the defense and to disclose such evidence. In United States v. Price The Ninth Circuit Court of Appeals found that the prosecutor failed to live up to his/her duty by not providing the defense with the evidence of Phillips’ record and therefore preventing counsel from adequately cross examining Phillips.

Brady evidence must meet a three prong test. first it must be exculpatory or usable for impeachment. Second it must have been suppressed by the government, either intentionally or accidentally, and finally the failure to provide the evidence must be prejudicial. In this case all three prongs were met. It clearly could have been used to impeach Phillips. It was not provided to counsel and it was available to either the prosecutor or to the law enforcement agencies involved in the investigation. It was prejudicial because counsel would have used the evidence to impeach the leading prosecution witness.

The Sixth Circuit Court of Appeals upheld the conviction of Gary Roberge for attempted manufacturing methamphetamine, possession of a gun in connection with narcotics and possession of materials necessary for the production of methamphetamine.

Roberge was arrested after his then 16 year old daughter told the people that she babysat for that her father manufactured meth. They told a reserve police officer who employed them. Cleveland, Tennessee police Lieutenant Brumley then interviewed Roberge’s daughter and then got a search warrant for his house.

The affidavit supporting the search warrant requested permission to enter the residence without give knock notice. In support of the request Brumley wrote that Roberge owned guns, that he had previously been taken to a mental hospital, and that he had a bad temper. The court found that this was sufficient to find the exigent circumstance necessary to give permission for the police to enter Roberge’s residence without knocking on the door, giving notice of their presence and their purpose prior to entering the residence.

The police then went to Roberge’s residence, entered it without giving knock-notice, found him asleep in his bed with a gun nearby, and seized methamphetamine related equipment.

The trial court found that probably cause is not necessary to avoid giving the Fourth Amendment’s knock notice requirement prior to entry. A reasonable suspicion that knock notice would be dangerous, futile or interfere with the investigation is all that is needed. But the police officers must have an objective and particularized reason for their suspicion.

Whether or not the no-knock order was appropriate the Sixth Circuit, citing the US Supreme Court’s decision in Hudson v. Michigan, declared that failure to comply with the knock-notice requirement does not mandate suppression of the evidence.

Without excluding the evidence as a remedy for entering a residence; without giving knock-notice; does the knock-notice rule have any relevance. Why should police give notice if there is no penalty for the failure to give notice. True in this case, Roberge was sleeping. But if he was awake in his livingroom and heard the police entering, he could have shot shot the police. Apparently the chance of this happening is immaterial to the police because, knowing that Roberge had a gun, they still entered the residence.

Roberge was sentenced to 295 months in prison. Does anyone outside of Tennessee believe that a man should get nearly 25 years in prison for manufacturing methamphetamine for his own use, considering that while he had guns, he did not use them? Sentencing Roberge to 295 month cannot be considered a victory for the War On Drugs. Nor will it decrease the amount of drugs in circulation. But it will cost the government a lot of taxpayer dollars.

U. S. District Judge George Wu who presided over Lori Drew’s cyberbullying trial continued the sentencing until July 2. She was convicted of three misdemeanor counts of violating the Computer Fraud and Abuse Act (18 USC 1030) The jury either found her not guilty or hung on felony counts and now the U. S. attorney is seeking three consecutive sentences of one year each for the misdemeanor convictions. One year is the maximum sentence on a misdemeanor.

The problem is that she may not have violated any law that was on the books at the time that she, her 13 year old daughter and an employee created the fake person named Josh Evans and used the identity to communicate with Megan Meir on MySpace. Rumor had it that Megan Meier. a former friend of Drew’s daughter was spreading malicious rumors about her daughter. Drew created the Josh Evans character in order to get Meier to admit that she spread the rumors.

Meier was emotionally weak and she had been prescribed psychoactive medications. At one point in the MySpace communications, “Josh Evans” says to Meier “The world would be better off if you were never born.” Twenty minutes later, Meier tragically committed suicide.

The authorities in Missouri where Drew and Meier lived investigated the incident and were unable to find any violation of the law. But the U. S. attorney in Los Angeles where MySpace is located came up with a creative way to charge Drew by alleging that she violated the Computer Fraud and Abuse Act. Section a(2)(c) of the act reads:

(a) Whoever–

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains–

(C) information from any protected computer if the conduct involved an interstate or foreign communication;

The government’s theory is that by creating a false identity on MySpace, Drew violated the MySpace rules and therefore accessed the MySpace computer without authorization. But, assuming that this is the type of behavior that Congress was attempting to forbid when it passed the act you still have to show that Drew intentionally accessed the MySpace computer with the intent to gain access to a computer she knew she did not have authorization to access. There is no evidence that she knew the MySpace rules or that she intended to violate the rules when she created the “Josh Evans” character.

Besides the lack of proof that Drew intentionally accessed a computer without authorization the government has several other problems. The law was written to prevent computer hacking. Due process requires that a law give notice to those who may violate the law of what conduct will violate the law. The courts have consistently held that to determine what conduct will violate a law you first look at the plain meaning of the law and secondly if the plain meaning of the law is vague you look at the intent of Congress in passing the law. There is little in Section 1030 that indicates that the law can be violated by bullying a neighborhood child. Such harassment may not be nice. It may be mean but it does not seem to violate the plain meaning of the law. Furthermore, when we look at Congressional intent in passing the law it is clear that it was meant to punish computer hackers and the theft of trade secrets–not bullies who harass neighborhood kids.

Since the arrest of Drew many states have passed laws, specifically punishing cyberbullies. But these laws were passed after Drew bullied Meier. The Constitution prohibits ex post facto laws. Ex post facto law are those that punish behavior that occurred prior to the passage of the law. Again the purpose is that a person should know what conduct will violate a law. Of course one does not know what conduct will violate a law that is only passed after the conduct occurred.

Charles “Eddy” Lepp, a Rastafarian minister and an advocate for medical marijuana was sentenced to a ten year mandatory minimum sentence for growing 32,000 marijuana plants. In pronouncing the sentence United States District Judge Marilyn Hall Patel said, “I think that amount of time is excessive, but it’s not up to me,” Furthermore she said that if the law changed allowing her to give Lepp a lesser sentence she would reconsider the sentence.

Ironically, Lepp was sentenced on the same day the United States Supreme Court refused to consider a challenge to California’s medical marijuana law. But that does not affect Lepp’s Federal conviction.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?

One of the hardest things for a criminal defense attorney to do is to deal with with non-citizen clients. Often they face deportation, exclusion, or denial of citizenship in addition to the normal punishment for a conviction. In the years I’ve been practicing I have represented numerous clients that immigrated to this country as young children with their families but have never become citizens. Many of them don’t even speak their “native” language. Many do not have any close family left in their “native” country. For many of these people the penalty of deportation is much greater than whatever time they are going to spend in jail or prison.

Of course I have other clients who after a brief period dealing with the criminal justice system tell me to get them back to their native country as fast as possible.

Then again I had a Mexican client. He plead guilty to a drug offense and the judge ordered that he be released on his own recognizance from jail at the time of his guilty plea. He was given a date for sentencing. But no one expected him to be there since he had an INS hold. I came to court on the day set for sentencing and he was not there. I asked the bailiff if he was in custody and I was told he had been released to INS. But as I was leaving the building–guess who walks in. He told me that he had been ordered back for sentencing on that date and he did not want a bench warrant. So he came back across the border and got to court only an hour late. He was sentenced. Pursuant to the plea agreement he did not do any more time in custody. Since he wasn’t in custody, the INS could not pick him up and he walked out the front door of the courthouse.

Generally ICE puts a hold on non-citizens when they are in custody. Americans know from watching too many police dramas on TV that anything you say to a peace officer can and will be used against you. Foreigners do not always know this and therefore many non-citizens make the fatal mistake of answering questions posed by ICE agents who meet them in the jail. By telling the agents their citizenship status or their place of birth they end up with an ICE hold. When this happens the jail must notify ICE when the foreign national is to be released. Then the jail or prison must hold the individual for five more days to allow ICE time to come and get him/her.

I had one client who was a French citizen. She was married to a US citizen and she could have become a US citizen is she tried. Despite (and perhaps because of) the fact that she was a drug addict and therefore subject to arrest and deportation, she never became a citizen. Eventually she was arrested with a significant amount of drugs on her. She was taken to jail and even though she was fairly smart she answered all of the questions posed by the ICE agent who put a hold on her. The ICE agents question foreign born prisoners before they are even arraigned and before they have a chance to talk to a lawyer and learn their right not to speak to the agent. My client was charged, convicted, and deported leaving her husband at least temporarily in this country.

What brings all of this up is a case out of the Fifth Circuit Court of Appeals. In Singh v. Holder the court held that a conviction for”wounding” under the laws of Virginia is an aggravated felony and a conviction for such resulted in this case in denial of citizenship.

Satbir Singh immigrated to this country in 1987. After he was here for a couple of months he was convicted of wounding in Virginia. Before he could be sentenced he returned to India. He was arrested when he reentered the country in 1998. After he was sentenced he applied for citizenship. It was denied on the basis of his conviction for an aggravated felony. He sued in the United State District Court. Summary judgment was granted to the defendants and he appealed to the Fifth Circuit.

An aggravated felony is inter alia “a crime of violence . . . for which the term of imprisonment [is] at least one year.” It includes many other offenses including those involving drugs, theft and firearms. (See USC Title 8, section 1101.)Wounding, under Virginia law, is

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.

The court did not have much trouble showing that wounding was an aggravated felony. But since the law took effect in 1990 a second question was raised in the appeal. Since the plea was before 1990 and the sentencing was after 1990 which date would be used. The Court did not have much trouble saying that the conviction date was the date of the sentence.

The Fifth Circuit upheld the summary judgment finding and he was correctly denied citizenship.

While this case does not involve deportation many do. Since denial of citizenship is an additional penalty, why should a non-citizen be punished more for the same criminal conduct that the citizen. This is particularly noticeable when the long term resident but non-citizen is deported. The penalty can be significantly more burdensome than the penalty for the same conduct committed by the citizen.

Several days ago we discussed Unus v. Kane a case in which a Muslim family sued for an alleged violation of its Fourth Amendment rights to be free of unreasonable searches and seizures. Today we take a look at another case in which the plaintiff claimed an illegal search of her residence. Luckily for the plaintiff in this case, Maira Guzman the Seventh Circuit Court of Appeals reversed the trial court grant of summary judgment to the defendant, the City of Chicago. Guzman sued the City of Chicago pursuant to 42 USC Section 1983 for a violation of her civil rights.

Sergeant Marvin Bonnstetter of the Chicago Police Department was investigating gangs in Chicago. While he was at the jail he was approached by a man who claimed to have information. Together with an FBI officer he met with this man (known as John Doe). The officers asked the man a number of questions. He seemed knowledgeable about Chicago gangs and he was able to identify pictures of gang members.

John Doe told the officers that he had seen a convicted felon, Ruben Estrada coming out of his residence, located at 1536 West Walton in Chicago, with a gun. Doe told the officers that the West Walton address was a single family residence. The officers and Doe drove by the building and it appeared to be a single family residence. There was a real estate sign in the window and the officers thought it was a home run business.

Bonnstetter used the information to write an affidavit and submit it to the court to get a search warrant for the residence. A magistrate signed the search warrant.

Fourteen police officers and FBI agents, including Bonnstetter went to the residence to serve the search warrant. Shortly after arriving they discovered that it was not a single family residence. The real estate office was separate from the rest of the building and their were two residential apartments in the building. Furthermore no one by the name of Ruben Estrada lived in the building. They searched the upstairs apartment where Maira Guzmen, a pregnant woman, her husband, and their nine year old son lived.

The Seventh Circuit found that while Bonnstetter acted appropriately in obtaining the search warrant the police did not properly execute the warrant. The court citing Maryland v. Garrison stated that since the officers realized that it was not a single family residence prior to the search, they were required to withdraw.