Well they gave Bernie Madoff 150 years. Surprize, Surprize! Really it made no difference. A twenty year sentence or a 150 year sentence. Either one is life. He’s 71. He won’t be running any more Ponzi schemes, unless he does it from inside the prison.

It might have been nice to give him twelve years. That way he would have had some hope of getting out. And with the number of prisoners committing suicide hope is nice.

But the cries for blood from the victims and the media were too great. Perhaps the judge wants to be appointed the the Second Circuit and is afraid of Congressional comments during confirmation. It doesn’t make much difference any sentence is a life sentence.

While we are on the subject what type of defense attorney pleads his or her client to the maximum sentence. I hope it wasn’t that there was no money left for trial. If you take a case you give it your all. You don’t put your interests ahead of those of your client. If your client is going to get the maximum sentence–and truthfully any sentence in this case is a maximum sentence–you go to trial. Who knows what happens at trial. The odds may not be great but any odds are better than pleading to the maximum sentence.

Also, why did they leave his wife 2.5 million? Can’t she live on Social Security or SSI like other people her age?

The Supreme Court last week ruled that it violated the Fourth Amendment for school officials to strip search a thirteen year old girl who was suspected of possessing prescription medication at school without prior permission.

Savana Redding was a thirteen year old student attending middle school. The assistant principal showed her a Daytimer and asked her if it was hers. Inside the Daytimer were knives and a few prescription pills. She said, yes, but she had loaned the Daytimer to her friend, Marissa. When Marissa was confronted she said she got the pills from Savana. The assistant principal, after receiving permission searched Savana’s back pack and other clothes. Finding nothing he asked the administrative assistant and the nurse both of whom were women to have Savana strip to her underwear. When nothing was found they had her move her bra and open up the elastic on her underwear which exposed her private parts.

Her mother sued the school district, the assistant principal and others who participated in the strip search. The defendants moved for summary judgment on the grounds that they did not violate the Fourth Amendment and if they did violate the Fourth Amendment they were protected by qualified immunity.

Citing New Jersey v. T. L. O. the Court pointed out that for a search at a school probable cause is not needed but the search must be reasonable. In determining whether a search is reasonable the age of the student and the possible harm to society must be considered. In this case the student is 13 years old, a particularly vulnerable age for being strip searched. The number of pills was a personal use amount and unlikely to cause much harm. Furthermore there was no specific evidence leading the school authorities to believe that drugs would be found inside Savana’s underwear Under these conditions, in an 8-1 vote, with Thomas dissenting, the Supreme Court found that it was not reasonable to perform a strip search.

Last week we discussed the issue of qualified immunity. Its comes up again. The test is whether “clearly established law does not show that the search violated the Fourth Amendment.” But this time the Supreme Court granted the defendant’s claim of qualified immunity. The Court pointed out that in several cases lower courts, in similar situations found that there was not a Fourth Amendment violation and that the Ninth Circuit was divided on this case. While a division among judges is not necessarily determinative, in this case the Supreme Court upheld the claim of qualified immunity,

Thus while Savana won the issue, she lost the case.

Five years ago in Crawford v. Washington the Supreme Court held, in a decision written by Justice Scalia, that a defendant has the right to confront and to cross examine any prosecution witness who provides testimonial evidence. The only exception, and it is not really an exception is that statements made prior to trial, but under oath and subject to cross examination may be used at trial.

Yesterday, the Supreme Court reinforced Crawford. In Melendez-Diaz v. Massachusetts Scalia, writing for the majority, made it clear that Courts would be unable to try to weasel out of Crawford by finding evidence to be non-testimonial.

The case involved a Massachusetts statute which allowed a chemist’s certificate to be used at trial to make a prima facie showing, in a drug case that the seized substance is a particular drug. The Court ruled that the certificate, which it compared to an affidavit, was inadmissible testimonial evidence under the Sixth Amendment’s Confrontation Clause. Not only is it crucial evidence against the client but it was prepared in preparation for litigation.
Furthermore with the huge number of errors and the lack of scientific credibility for many forensic tests it is necessary to subject the chemist’s conclusions to cross examination.

The dissent claims that the chemist is not an accusatory witness and therefore the defendant need not confront him. But the Court’s opinion points out that the Sixth Amendment allows the defendant to confront all witnesses against him or her. Furthermore the dissent argues that the chemist is not a “conventional” witness. Scalia replies that it is immaterial that the witness is a scientist. He points to the large number of errors in forensic evidence. Nor is the Court concerned about any extra work that DA’s must perform to have live witnesses. When it comes to carrying out the will of the Constitution we are not concerned with extra work.

The Third Circuit Court of Appeals ruled that for Fourth Amendment purposes a man is not seized despite the fact that two police officers are pointing guns at him when he does not freeze in response to the officers with the guns.

Two Wilmington, Delaware police officers received a report that a person had a gun at 1009 West Seventh Street. They drove by the house and saw five people on the front porch. They got out of the marked vehicle and told the five people to raise their hands for officer safety. Four of them raised their hands. Christopher Waterman kept his hands in his pockets. The officers drew their guns. Waterman removed one of his hands and put it behind him. He unsuccessfully attempted to open the door to the house with the hand that was behind him. Deborah Waters opened the door and came out of the house. Waterman went into the house.

The question before the Court was whether Waterman was seized at the time he went into the house. The Fourth Amendment forbids illegal searches and seizures. In order to arrest a person an officer must have probable cause to believe that a crime has been committed and that the person committed the crime. A detention does not require probable cause. Rather it only requires a reasonable suspicion that the person is involved in a crime. In this case since the police only had an anonymous tip neither probable cause or a reasonable suspicion existed. But since the Third Circuit held that neither a search or a seizure occurred it refused to suppress evidence found as a result of the incident on the porch. It held that for a seizure to occur the officers must either physically seize the person or the person must submit to an assertion of authority. While the drawing of the guns was an assertion of authority, Waterman did not submit to the authority and therefore there wasn’t a seizure subject to the Fourth Amendment.

But in United States v, Mendenhall the Supreme Court ruled that searches and seizures must be based on an objective basis. In other words they can only be justified if the average person in the spot of the defendant would feel that they are seized and unable to leave. I would maintain that the average person facing two officers both of whom have their guns drawn would not be crazy enough to leave even to enter the house through an open door. If this is the case then Waterman was seized and any evidence discovered as a result of his entry into the house should be suppressed.

In fact the Court stated in Mendenhall that

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

While in this case Waterman went into the residence and the decision does not state what happened next I think we can bet he did not get very far. We have the threatening presence of two officers with guns drawn insisting that Waterman put his hands above his head. It would seem under an objective standard Waterman was seized. And I bet when he went into the house the officers proved that he was seized by taking further steps that limited his ability to move.

The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges.

Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was charged with exposing himself and lewd behavior. Friedman had a history of sex crimes in Montana and Ohio but at the time of his arrest he lived in Las Vegas and he had completed his most recent parole in Montana. Friedman refused to give Boucher a sample. Boucher then went to Assistant District Attorney Elissa Luzaich and obtained permission to take a sample by force.

When Friedman again refused to give Boucher a sample and asked to talk to his lawyer. Boucher refused. Another officer threatened to hurt him if he did not comply. They also threatened to have other officers beat him up. At this point he was sitting on a bench in chains and shackles, chained to a metal bar on the bench.

Boucher then forced Friedman’s mouth open and took a buccal swab.

Friedman filed suit. The District Court granted a motion for summary judgment after the defendants claimed partial immunity. The Ninth Circuit ruled that since Friedman’s Fourth Amendment rights were violated and since the rule was well known at the time of the violation Boucher and Luzaich’s claim of immunity should have been denied.

Boucher and Luzaich alleged the existence of three exceptions to the Fourth Amendment’s warrant requirement but the court refused to accept them. First they claimed a “special needs” exception. But that only applies for non-law enforcement reasons and the defendant’s claim that they they were going to use it to find cold cases was a law enforcement purpose. Second they said that they were complying with a Montana law requiring the taking of a DNA sample from convicted sex offense felons. But the law appears to apply to only those who are on probation or parole and Boucher did not comply with the requirement that the sample be turned over to Montana authorities. Finally they claimed that since Friedman was incarcerated he had only limited privacy rights and they did not apply to the taking of a DNA sample which could be used for identity. But it was not being used to test his identity or for anything connected to the pending charges. Nor was it being used for a legitimate custodial purpose.

The Ninth Circuit reversed the grant of summary judgment and sent the case back to the District Court for trial.

The Supreme Court denied cert to the Cuban Five who were convicted on charges related to espionage. They were accused of being Cuban agents. The five men: Ruben Campa, Rene Gonzalez. Antonio Guerrero, Geraldo Hernandez, and Luis Medina were tried in an extremely tense environment in Miami. The trial occurred simultaneously with the demonstrations over the return of Elian Gonzalez to his father’s custody in Cuba after his mother died while attempting to enter the United States. One of the issues on appeal was the refusal of the District Court to remove the trial from Miami to a place where the men could have gotten a fair trial. Another issue involved the prosecution’s use of nine of its eleven peremptory challenges to exclude African Americans from the jury. Three African Americans did serve on the jury. Finally Geraldo Hernandez was convicted of conspiring with the Cuban government to shoot down anti-Cuba fliers flying over Cuban territory despite the fact that the Cuban government had a legal right to shoot down planes invading its territory.

The Supreme Court ruled last week held that there is no due process right to DNA discovery post conviction.

William G. Osborne was convicted of rape and assault for a 1993 incident in Anchorage, Alaska.At the time of the trial modern DNA tests were not available. The results obtained from the DNA test did not exclude eighteen percent of African American men.

Osborne filed a 1983 civil rights action in Federal Court to get the DNA sample which he plans to have tested at his own expense. The District Court denied his request. The Ninth Circuit Court of Appeals upheld his right to the discovery and the Supreme Court last week reversed the decision of the Ninth Circuit.

While, under Brady, there is a pretrial right to discovery, the Ninth Circuit erred, according to Chief Justice Roberts in his majority opinion, in extending the right to post trial discovery, despite the fact that Osborne has a liberty interest in pursuing post conviction relief.

The Supreme Court held that one can only obtain post trial due process relief if the available process “offends some fundamental principle of justice” or “transgresses any recognized principle of fundamental fairness.” While Alaska does not have a statute specifically granting the right to post trial DNA, a review of the statutes and judicial decisions in Alaska indicates that post trial right to a DNA examination is available under various circumstances and the process by which it can be obtained does not offend the fundamentals of justice or transgress recognized principle of the fundamental fairness.

Furthermore the Court refused to extend the right to substantive due process to the right to post trial discovery of DNA samples. First there is no long standing right to DNA and secondly the court did not want to interupt the legislative and judicial process which is happening in each of the states and Congress. There are 46 states in which legislation has been enacted which in one way or another guarantees the right post trial discovery of DNA samples.

Justice Stevens in dissent, wrote that while Alaskan law permits post trial discovery of DNA samples it is not clear that the discovery is granted in practice, In particular he noted that it was not granted to Osborne even though it appears that it could exonerate him. Second, Stevens states that there is a fundamental right in not being incarcerated if one is innocent and that denial of the DNA discovery violates his due process liberty right.

Yesterday we looked at a Fifth Circuit case exploring the Double Jeopardy Clause in a matter involving three Enron Corporation officials.

About ten hours after I wrote the post the Supreme Court issued a decision in another case involving an Enron official, F. Steve Yeager, on the Double Jeopardy Clause. Yeager was a vice president of Enron in charge of their broadband division. The company kept issuing positive reports about the division and stock kept going up in price. While the stock was selling well Yeager sold stock he owned in the company making a 19 million dollar profit. The positive reports were misleading since the division was not doing well and as we all know shortly thereafter Enron went into bankruptcy.

Yeager was charged with 126 counts in an indictment. In Count i he was charged with conspiracy to commit wire fraud and security fraud. In Counts 2 through 6 he was charged with various counts of wire fraud and security fraud. The rest of the counts involved insider trading and money laundering the profits from the insider trading.

He was acquitted on the first six counts and the jury hung on the remaining counts. In a superseding indictment the government moved to retry him on some of the insider trading counts. Yeager moved to dismiss the indictment on double jeopardy grounds. The trial court denied his motion and the question before the Supreme Court was whether double jeopardy could be found where the jury hung on the counts to be relitigated.

The traditional case of double jeopardy is where the government attempts to reprosecute an individual for the same crime that the person was found not guilty in a previous trial. But it has also been used where the appellate court finds that there was insufficient evidence to support a conviction. Another use of double jeopardy is what is called issue preclusion. Issue preclusion is where a necessary issue has been answered in favor of the defendant in a previous trial and now the government wants to retry the same issue. For example, Yeager claimed that in order to convict him on the insider trading charges a jury would have to reconsider at least one of the issues that the jury in the first trial must have found in his favor in order to acquit him on the first six counts.

What the Supreme Court ruled was that a jury in a new trial could not be required to go back and reconsider an issue that the previous jury necessarily found in his favor. But the Supreme Court permitted the Fifth Circuit Court of Appeals to reconsider the case and determine if a jury necessarily would have had to consider an issue which will have to be considered by a new jury considering the current indictment. Both Justice Kennedy in a concurring opinion and Justice Alito in a dissenting opinion strongly recommended that the Fifth Circuit carefully consider the issue. But Samuel Buffone, one of Yeager’s lawyers said, “We are confident we will prevail. We are down to a very narrow factual issue the court of appeals has already resolved once in our favor and has an opportunity to revisit if they like.” If the new jury will be forced to reconsider an issue necessarily considered by the previous jury the indictment must be dismissed to prevent Yeager from being placed in double jeopardy.

Obviously we are not through with Enron yet.

James A. Brown, Robert S. Furst, and Daniel Bayley were employees of Merrill Lynch. The government accused them of using communications facilities to conspire with Enron executives to defraud the Enron Corporation and its stockholders by falsely enhancing the value of the Enron corporation. Specifically the three men were accuse of conspiring with Enron officials in 1999 to “buy’ three power generating barges, from Enron, located off the coast of Nigeria in order to artificially enhance Enron’s 1999 end-of-year earnings report. In addition to the agreement to “buy” the barges their was a side agreement that Enron Corporation would either buy the barges back after six months or would find a third party buyer for the barges at a fifteen per cent annual rate of return for Merrill Lynch. Thus, the purchase was actually a rental.

The case went to trial. The government gave three grounds for convicting the defendants on wire fraud and conspiracy: (1) to commit wire fraud by fraudulent deprivation of Enron’s money or property (the “money or property charge”); (2) to commit wire fraud by fraudulent deprivation of the intangible right to honest services (the “honest services charge”); and (3) to falsify Enron’s books and records (the “books and records charge”). The defendants were convicted and appealed. The Fifth Circuit Court of Appeals granted the Appeal in 2006 in Brown I. The Court ruled that the “honest services” charge: did not apply and since the jury was not asked to determine which of the three grounds they accepted they may have wrongly convicted on the “honest service” grounds. “Honest services” are those duties an employee owes to an employer including the fiduciary duty to disclose evidence that might be harmful to the employer. Generally “honest services” involve bribery or self-dealing. Here the Enron Corporation co-defendants of the three men who appealed in Brown II were not attempting to hurt the corporation. Rather they were attempting, however misguided, to comply with the company goal of enhancing Enron’s 1999 end-of-year earnings report. Therefore they could on be convicted of wire fraud on an “honest services” theory.

The government redacted the indictment to remove the “honest service” grounds and moved to retry the case. The three defendants objected on double jeopardy grounds. The trial court denied the objection and they appealed again to the Fifth Circuit. Tuesday the Fifth Circuit denied the appeal in Brown II.

The Court, using the one bite of the apple rule, found that since the Fifth Circuit in the first appeal did not find that there was insufficient evidence to convict the defendants on either the money or property charge or the books and records charge they could be retried on these theories. Under the one bite of the apple theory if an appellate court reverses the conviction because the government had insufficient evidence to convict the defendants in the trial court it cannot go out and find more evidence and try again. This would violate the constitutional ban on double jeopardy. But since the 2006 Fifth Circuit decision specifically refused to find that the government had insufficient evidence on any grounds other than the “honest services” ground it is not a violation of double jeopardy to retry the defendants on the other grounds.

Since the case can go to trial again the Enron saga continues.

Yesterday, we discussed the use of aggravated felonies for the purpose of immigration. Specifically we looked at the courts’ consideration of prior conviction by looking at the actual conduct. In passing, we considered the contrary method of looking at prior convictions by using the generic or categorical approach. Unlike the actual conduct test, the generic or categorical test looks at the code section of the prior conviction and compares it to the statute. Last week the First Circuit Court of Appeals considered a case under the Armed Career Criminal Act (ACCA).

John Pakala was convicted of selling stolen firearms. At sentencing it was found that he had three prior convictions for violent felonies. He had a Nevada conviction for attempted burglary and two Florida convictions for burglary. In United States vs. Pakala the court used the generic or categorical method to determine whether the Florida burglary statute comes under the ACCA.

Under the ACCA, an individual convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), as Pakala was here, is subject to a sentencing enhancement as an armed career criminal if he “has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both.

The ACCA considers burglary to be a violent felony so at first glance Pakala would appear to have three prior convictions for violent felonies. But since each state defines burglary differently, in order to have a consistent Federal law, the ACCA looks at the essence of burglary. Under Federal law, therefore, the courts consider a burglary to be a crime

regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime

But the Florida law is broader than the ACCA definition. It includes the curtilage surrounding the house. Since Pakalawas was convicted under the Florida burglary law, and on the face of the complaint he could have entered the curtilage it would appear that the two Florida priors, using the generic or categorical method, are not violent crimes under the ACCA.

But Florida uses a very narrow definition of “curtilage.” Under Florida law the curtilage is “an enclosed area surrounding a structure.”

The court citing 18 U.S.C. § 924(e)(2)(B)(ii) found that

The ACCA contains an ‘otherwise’ clause, which defines a ‘violent felony’ as a crime that, along with “\’burglary,’ otherwise involves conduct that presents a serious potential risk of physical injury to another.

Still using the generic or categorical method, the court found that entry into the curtilage, as defined by Florida law, is a violent felony since it “involves conduct that presents a serious potential risk of physical injury to another.”

So in any case, Pakala loses. He was sentenced to 235 months in prison for stealing five guns from his employer’s house and selling them.