The Supreme Court again considered the issue of what is an aggravated felony for immigration purposes this week in Nijhawan v. Holder. In immigration law the question is an important one because convictions for aggravated felonies lead to deportation.

Aggravated felonies are defined in 8 U. S. C. 1101(a)(43). At question in Nijhawan is subdivision (M)(i) which involves offenses that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. The question is what convictions involve a loss of over $10,000. There are two ways to look at it. The first is called the categorical or generic method. It says that anyone who is found guilty of fraud or deceit where the crime necessarily involves a loss of $10,000 is guilty of a crime involving an aggravated felony. For example if there was a crime called Fraud Involving a Loss of Over $10,000 and Mr. Nijhawan was found guilty of it, using the generic or categorical method he would be guilty of an aggravated felony. The problem is there are very few such crimes. In fact, Mr. Nijhawan was found guilty of conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. The crimes do not list a specific amount of loss. Thus using the generic or categorical method he is not deportable. This leads to the second possible way to define a aggravated felony. It is to look at the specific conduct of the individual. At sentencing on the fraud case Mr. Nijhawan stipulated that the loss was over a 100 million dollars. If you consider the actual conduct Mr. Nijhawan is deportable.

In cases under the Armed Career Criminal Act (ACCA) the courts have used the generic or categorical method. The court noted that in interpreting the ACCA courts have found that it is difficult to go back later, often only on a paper record and use the actual conduct method. Furthermore. The ACCA and Section 1101 list many actual crimes susceptible to to the generic or categoric method.

But the Supreme Court decided to use the actual conduct method. It pointed out that Congress could not have intended to use the generic or categorical methods since so few crimes would be applicable. Furthermore, the language of Section 1101 seems to imply that the conduct method should be used. For example, some offenses are only aggravated felonies if it is not the first conviction for the offense or other offenses are only aggravated felonies if the defendant had a commercial intent. In these cases only the actual conduct method appears to be applicable.

Holding that Section 1101 involves the actual conduct method the Supreme Court upheld the deportation of Mr. Nijhawan who fraudulently obtained over 100 million dollars.

Former BART Police Officer Johannes Mehserle was held to answer at his preliminary examination for first degree murder for the killing of Oscar Grant who was shot while face down and while being held by BART police officers on the platform at the Fruitvale Station in Oakland.

At the preliminary examination his defense counsel, Michael Rains took the unusual step of putting on a defense. He put on a number of witnesses in order to try to prove that Mehserle did not intend to kill Grant. Rather it was the defense point of view that Mehserle accidently pulled his gun and shot it when he meant to pull his Taser.

But at the end of the Preliminary Examination, Alameda County Superior Court Judge Don Clay said that he had no doubt that Mehserle intended to use his gun and to kill Grant. Furthermore he expressed doubt about the credibility of some of the BART police officers who testified on behalf of Mehserle.

In response Rains, according to the Oakland Tribune, said that Alameda County’s judicial system is biased against Mehserle and that he will not receive a fair trial trial in the county. Rains plans to file a motion for a change of venue.

But Rains’ problem is that the test for a change of venue is not dependent upon an alleged bias of one judge. Rather in order to obtain a change of venue Rains will have to show that it is impossible to pick an unbiased jury. He will have to show that due to the vast amount of publicity the case has received that it is unlikely that a fair jury can be chosen. If all of the members of the jury panel have made up their minds prior to the trial that Mehserle is guilty then he will be entitled to a change of venue.

This is generally a very difficult task but it may be possible in this case. There has been a tremendous amount of publicity and many people have made up their mind. There have been numerous demonstrations outside the courthouse and in the streets in which people have exhibited their anger at Meserle for the killing. There was also a bomb scare at his parent’s house in nearby Napa County.

Just the same, both sides will do extensive polling to try to determine whether or not Mehserle can get a fair trial in Alameda County. Meserle would like to move the trial out of the county while the district attorney would like to keep the trial in Alameda County. The two primary issues in picking a jury will be race and attitudes towards the police. Officially of course neither side can base decisions on jury selection on race. But you can be quite sure that both sides are thinking about it. Whatever they say about a post racial society it does not work in jury selection. Grant was African American and Meserle is White. One reason the district attorney wants to keep the trial in Alameda County is that the county has a relatively high percentage of African Americans who are likely to vote for the conviction of a white police officer who shot an African American man. Meserle and his attorneys would prefer to move the trial to a county with less African Americans in the jury pool.

Likewise Alameda County jurors, with its large percentage of third world residents, are more likely to be skeptical of a white police defendant and other members of the BART police force who are likely to testify on behalf of Mehserle. Judge Clay stated that he did not find some of the BART officers credible in their testimony. Therefore Rains will want to move the trial to some county where police officers are held in higher esteem than Alameda County.

Between now and the trial we can expect considerable litigation and dispute over the venue of the trial. While Rains was wrong in claiming the need for a change of venue, based on judicial bias, Judge Clay’s comments did not help the district attorney keep the trial in Alameda County. If the people of Alameda County believe that Judge Clay is the greatest judge west of the Mississippi and therefore they find credible his comment about Mehserle’s intent to kill Grant, they may form a bias against Mehserle. Therefore, the more press Clay’s comments get the more likely the jury will be biased against Mehserle and the more likely the venue will change. Is there any doubt why Rains called a press conference to complain about Clay’s comment just as both sides are beginning to poll the community to determine whether bias exists?u

A Congressional committee recommended Wednesday the impeachment of U. S. District Judge Samuel Kent who was convicted of obstruction of justice for lying to a judicial investigating committee and the FBI which were investigating sexual abuse complaints against him by his secretary and case manager.

According to testimony by staff members he would grope them, often while drunk. As part of a plea bargain he was sentenced to 33 months on the obstruction of justice charge and the sex related charges were dismissed. At his sentencing a statement by his case manager was read in which she said,

“After forcing himself upon me and asking me to do unspeakable things, he told me that pleasuring him was something I owed him. That was it for me.”

Kent has turned in a resignation effective June 2010, Thus unless he is impeached he will continue to get his full salary for the next year while he is in prison. The House Judiciary Committee voted unanimously to impeach him. Assuming that the House votes for impeachment and the Senate convicts him his salary will be terminated immediately.

Joshua Johnson lived in a two bedroom apartment in Sacramento County with his girlfriend, their infant daughter and two roommates, Jessie Rider and Devon McDermott. He supported his family by being the neighborhood dope dealer.

On August 28, 2005 he received a phone call from Del Jay Ugalino, wanting to buy some dope. Johnson said, fine, come on over. Ugalino who had bought marijuana from Johnson ten to fifteen times before was no stranger, Johnson brought two friends with him. After Johnson got the marijuana (3 oz) out of the safe Ugalino pulled a gun out and attempted to rob him. But Johnson was swift on his feet. He put the marijuana in his underwear and ran out the front door. Luckily Ugalino and his friends did not take Johnson’s girl friend, roommates and baby hostage. Instead they ran out the front door and got into their pick up truck and left. But as the truck pulled away they hit a post leaving the bumper and the license tag behind which made the work of the police much easier.

Ugalino was convicted of one count of residential burglary, two counts of attempted robbery (Johnson and Rider), possession of a controlled substance (ecstacy) and being a felon in possession of ammunition. The jury also found that he used a gun during the felonies.

The significant legal issue is whether Ugalino can be convicted of attempted robbery of Rider. The California Court of Appeal said no. Under California law robbery is

” the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

The court ruled that a victim of a robbery must be either the owner of the property, the person in possession of the property or a person with a special relationship to the owner such as to be in control of the property. Since Rider was only a roommate and the marijuana was kept in a safe for which Rider did not have a key he did not have the special relationship necessary to be the victim. Ugalino was guilty on the other charges including the attempted robbery of Johnson and I am sure he is doing enough time in prison thinking about the statement that he gave to the police when he was arrested: He told them they “couldn’t arrest him for ripping off a drug dealer.”

This brings up the second question. Since when do dope dealers go to the police for protection. Not many years ago if a dope dealer came to me and told me Johnson’s story, I would have said, hey you got away with your life, be happy–if you call the police they might arrest you. And in fact right now I am representing a woman in Alameda County who called the police to report a burglary at her house. The police entered the house to look for the burglar who had gone out the back door. The police found a significant amount of marijuana and she is charged with possession for sale of marijuana. Thus, I guess, outside of Sacramento County things have not changed much.

Ahmed Khalfan Ghailani who is accused of participating in the 1998 bombing of the United States embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya in which 224 people were killed was transferred from Guantanamo to New York City where he will stand trial. He is the first person held in Guantanamo to be transported to the United States for trial. Immediately upon his arrival he was taken to the U. S. District Court where he entered a not guilty plea.

He was arrested five years ago in Pakistan and he has been held in Guantanamo for three years. Between the time of his arrest and his placement in Guantanamo Ghailani was kept in secret foreign CIA prisons.

He is accused of buying a truck used in the Dar Es Salaam bombing. It is also alleged that he bought and loaded explosives onto the vehicle. From 2001 to 2004 it is alleged that he worked as a forger, forging documents for Al Qaeda,

Wadih el-Hage, an American citizen was convicted in 1998 of conspiring with Al Qaeda to kill Americans. He is serving his sentence at a super secure prison in Florence, Alabama. In the same trial Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, and Mohammed Saddiq Odeh were convicted of murder in connection with the bombing of the embassies. they are also serving life terms.

Whatever happens Ghailani’s prosecution and trial must be carried out with the greatest transparency. In order to validate the trial in the eyes of the international community and in compliance with President Obama’s opening to the Muslim world the government should invite international observer including representatives from Muslim countries and representatives of Al Qaeda to observe the trial. The observers must be given the greatest latitude to view American jurisprudence. Furthermore Ghailani’s attorneys must be provided with all of the documents and discovery necessary for a vigorous and zealous defense. Not only will such efforts justify the trial in the eyes of the world community but it will prevent revengeful terrorist attacks on this nation if there is a conviction.

Last week the Seventh Circuit Court of Appeals denied the appeal of Kenneth Kirkland who was convicted of possessing over fifty grams of cocaine and sentenced to twenty years in prison and an additional ten years of supervised release.

In the early morning hours of September 2, 2007, Fairview Heights, Illinois police officers began an investigation of Kirkland for possession of cocaine. The investigation took them to the local Ramada Inn. Using police dogs to sniff Kirkland’s vehicle which was parked at the hotel they believed that there was cocaine in the vehicle. After he came out of the hotel and started to drive the vehicle, the officers pulled him over on the pretext that they were stopping him for a cracked windshield.

While an officer was issuing Kirkland a warning, a sergeant and a DEA agent drove up. Without reading Kirkland his Miranda warnings they asked him some questions and for permission to search the vehicle. Kirkland agreed. Rifle cartridges and cocaine were found. He was arrested and 48 hours later transferred to DEA custody. Once in DEA custody he was read his Miranda rights and he took responsibility for the cocaine. At approximately 3:00 p.m. on September 4 he was taken before a magistrate.

On November 30 he (actually his attorney) filed a motion to suppress evidence. The motion did not mention the statements made to the police or the DEA. He claimed that his detention was without reasonable or probable cause and that the length of the detention was excessive. He filed a brief in support of the motion on February 1, 2008 but again did not discuss the statements. A hearing was held on February 28. At the hearing his counsel said

Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.

The Court refused to suppress the cocaine because the search of the vehicle was supported by probable cause. The Court also refused to suppress the statements made while in Federal custody because he had been given Miranda warnings and it did not suppress the roadside statements because Kirkland (again actually his counsel) did not specify the nature of the statements.

The Fourth Amendment prevents lengthy detentions prior to an appearance before an magistrate during which peace officers can ruthlessly interrogate defendants. The Supreme Court has decided that a defendant must be taken before a magistrate for a probable cause hearing within 48 hours of arrest. Rule 5(a) of the Federal Rules of Criminal Procedure mandate that a defendant be brought immediately before a Federal magistrate and that any statement taken prior to the appearance before the magistrate but more than six hours after the arrest be excluded. Time held in local custody is excluded unless the Federal authorities colluded with the local police.

In refusing to grant the defendant’s appeal the appellate court found that Kirkland waived his right to have appellate consideration by failing to timely move to suppress the statements. Not only did Kirkland’s counsel wait until the hearing on the motion to suppress the cocaine to bring up the statements but his counsel failed to provide any legal reasoning in the motion to support the suppression of the statements. Furthermore counsel failed to meet deadlines set by the trial court for motions to suppress in that the original motion did not ask for the suppression of the statements.

The logical problem with the Seventh Circuit’s denial of the appeal is that Kirkland did not fail to meet any deadlines or to fulfill any duties. He is being punished for his counsel’s failure to meet deadlines and properly move for suppression of the statements. Presumably, although there is no indication in the appellate decision his appellate counsel (let’s hope that his trial counsel is not doing the appeal) is filing a writ of habeas corpus alleging incompetence of his trial counsel for failure to meet the deadline and for failure to move in a timely manner for suppression of the statements.

Scott Roeder is charged with the Kansas murder of Dr.George Tiller. Tiller was one of few doctors in this country who performed late term abortions.

At the time of his arrest he did the right thing. He refused to talk to the police without an attorney present. After all, we have all heard the Miranda rights on TV. In the usual pronouncement of the rights a defendant is told “anything you say can be used against you.” The better pronouncement is “Anything you say can and will be used against you. Because a smart prosecutor will find a way.

But after refusing to talk to the police, Roeder called the Associated Press. He told them, “I know there are many other similar events planned around the country as long as abortion remains legal,” Well guess what: his quote ends up in every newspaper in the country. And guess what else, he will hear it at trial. Just as his comments to the police are admissible any other comments he makes will be admissible at trial. Any prosecutor worth his or her salt will get this statement admitted as an admission of guilt. After all, the argument will go, if he was not involved in the murder how would he know that similar criminal acts are planned around the country.

And by the way, Mr Roeder, I’d be willing to bet that every conversation you make from the jail telephone (besides those to your lawyer) are taped and provided immediately to the District Attorney.

Attorney General Eric Holder in a brief filed before the Ninth Circuit Court of Appeal admitted that the government failed to provide significant discovery to two Republican members of the Alaska legislature who were convicted on corruption charges . The cases of former Alaska House Speaker Peter Kott, from Eagle River, Alaska, and former state Rep. Victor Kohring, from Waslla, Alaska, are currently on appeal before the Ninth Circuit. Holder asked the court to release the defendants on their own recognizance and to return the cases to the trial court where it is expected that their attorneys will move to have the cases dismissed on Brady grounds. In Brady v. Maryland the Supreme Court ruled that the failure of the government to provide a defendant with discovery favorable to the defendant violates due process. Kott and Kohring were charged with bribery, extortion and conspiracy for allegedly accepting bribes from VECO, an oil services company in exchange for legislative votes which favored the company. After being convicted Kott was sentenced to six years in prison and Kohring was sentenced to 3 1/2 years.

The admission is particularly embarrassing since it has only been two months since the government was forced to ask U.S. District Judge Emmet G. Sullivan to dismiss corruption charges against Alaska Senator Ted Stevens for similar reasons. The documents that the government failed to provide to the attorneys for Kott and Kohring were discovered in the Stevens trial. It was only after Stevens’ attorney sent the documents to Kott’s attorney that Kott was able to move for discovery in the Ninth Circuit. Holder’s request came while Kott’s motion was pending before the Ninth Circuit.

The California Supreme Court upheld the death penalty for Richard Allen Davis who was convicted of kidnapping and murdering Polly Klaas. Polly Klaas was the twelve year old girl who was kidnapped from her Petaluma house during a October 1, 1993 slumber party while her mother and kid sister were sleeping in a nearby bedroom.

Polly invited two friends to the party. The three girls were in Polly’s room with the door shut. At one point Polly opened the door to her room to get the sleeping bag of one of her guests. She saw Davis with a knife in his hand. He entered the bedroom and tied up the three girls. He took Polly and told the other two girls to count to a thousand before doing anything. They removed the ties and woke up Polly’s mother who called the police.

Shannon Lynch was driving on a road leading from the residence of Dana Jaffe approximately a half hours after the kidnapping. She had been babysitting for Jaffe’s children. As she approached Pythian Road she saw Davis. His car was stuck in a ditch. She got scared and called Jaffe from the nearest pay phone. Jaffe called the Sonoma County Sheriff’s Department. They sent two deputies out who helped get Davis’s vehicle out of the ditch and escorted him off the property. The Sonoma County Sheriff’s Department radio system was not connected to the Petaluma Police Department’s radio system and the deputies did not know about the kidnapping. Later that evening Davis returned to Jaffe’s property and retrieved Polly.

At least four people saw Davis that evening near the Klaas residence.

The kidnapping attracted considerable attention. Seventy-five FBI agents and 50 police officers immediately started searching for Polly and the nationwide press carried major articles. Thousands of leads poured into the police and FBI offices. Nearly two months later on November 28 Jaffe found several items associated with Polly near the spot where Davis had run into the ditch. She called the Sheriff’s Department and Davis was arrested at his sister’s residence on a parole violation on November 30.

Later that day, Petaluma police officer Larry Pelton and FBI agent Larry Taylor Mirandized and interrogated Davis but he denied everything. At one point during the interview Davis requested a lawyer but the Supreme Court found the request to be too ambiguous to terminate the interrogation under Miranda. But before the interview was over Davis clearly asserted his right to have an attorney present. On December 2 criminalists identified a palm print in Polly’s room as belonging to Davis. On the fourth Petaluma Police Sargeant Michael Meese again interrogated Davis at the jail and urged him to call Meese if there was any chance of finding Polly alive. Later, Davis called Meese and confessed. He then led the officers to Polly’s body. The Supreme Court decision in Edwards v. Arizona mandated that once a defendant asserted his Miranda rights police could not further interview the inmate until he/she was provided an attorney.

But the California courts have developed an exception to the Miranda rule called called the Rescue Exception. When a person has been kidnapped and urgency requires immediate knowledge in order to save the person’s life, peace officers can violate the Miranda rule if the following conditions exist: 1) urgency of need with no other course of action promising relief; 2) the possibility of saving a person’s life mandates the action; and 3) objective facts known to the police officers require such action. Even though 64 days passed between the time of the kidnapping and Sargeant Meese’s jailhouse interview, the court found that since it was possible that Polly was still living the Rescue Exception was applicable and the conversation was admissible at trial.

The Supreme Court found no reasons to reverse the convictions and it stated that if any errors were committed they were harmless in that there was enough evidence when excluding the wrongly admitted evidence to convict Davis.

It was the murder of Polly Klaas and the crusading efforts of her father, Marc Klaas that led to the passage of Three Strike laws throughout the country. Prior to Polly’s murder, Davis had been convicted of burglary and forging a ten dollar bill when he was twelve years old. He had convictions for assault, robbery, and kidnapping in addition to the juvenile burglary. He also had a record of committing sex offenses against. Yet despite his record and despite the fact that he had spent much of his life in prison he was paroled at the time of Polly’s murder. California and other states enacted Three Strikes Law in order to prevent other people with similar records from killing other people like Polly. While the laws have numerous flaws they have kept many habitual felons off the streets.

In 1992 Michael Bies was convicted of the aggravated murder, kidnapping, and attempted rape of a ten-year-old boy in an Ohio court. During the penalty phase it was brought up as a mitigating factor that Bies had a mild to borderline case of mental retardation. But the jury found that aggravating circumstance, particularly his tendency towards violence outweighed the mitigating circumstance and recommended the death penalty which the judge imposed. On appeal to the Court of Appeals and the Ohio Supreme Court the death penalty was upheld. Bies then filed a petition asking to be spared the death penalty due to his retardation. The appeal was denied by both the Ohio Court of Appeals and the state Supreme Court.

Shortly after Bies filed a writ of habeas corpus in Federal Court the Supreme Court decided Atkins v. Virginia. In Atkins the court decided that the Eighth Amendment prohibited the execution of the death penalty on a retarded person. But it did not decide, or provide guidance on, who was too retarded to kill.

Bies then filed an action in the Ohio trial courts to prevent the execution of the death penalty. He filed a motion for summary judgment. It was denied and the trial court ordered a complete hearing. Bies appealed the decision to the Ohio Supreme Court, without success.

He then went into the Federal Court to get an order mandating that the hearing in state court be prevented on double jeopardy grounds. He argued that since his retardation was proved during the sentencing phase of his trial holding another hearing on the issue would violate his Eighth Amendment right not to be placed in double jeopardy. The District Court and the Sixth Circuit Court of Appeal agreed with him. The State of Ohio appealed to the Supreme Court and in Bobby, Warden v. Bies the Supreme Court reversed the decision of the Sixth Circuit, finding that the Ohio court’s proposed hearing on Bies retardation did not violate the Eighth Amendment and it complied with Atkins.

Bies’ theory was that since his mental retardation was a mitigating factor at trial, to decide it again would place him in double jeopardy. Such a theory is called issue preclusion since it prevents the same issue from being litigated twice. The Supreme Court disagreed. First, according to Justice Ginsburg’s unanimous decision, Bies was not placed in double jeopardy since the State of Ohio was not trying to increase his sentence it was merely trying to impose the sentence previously ordered. Second, mental retardation for the purpose of mitigation and mental retardation for the purpose of Atkins are two discrete issues and a finding in one does not mandate the same finding in the other. Finally, the Supreme Court ruled that issue preclusion is only available to a prevailing party who wants to maintain his/her decision. In the case of Bies he did not prevail at sentencing and therefore cannot now claim issue preclusion. In fact, at sentencing where his retardation was considered a mitigating factor it was outweighed by aggravating factors. So he does not have an issue which he won and for which he is afraid the State will obtain a reversal. In fact even if it had not been considered a mitigating factor at trial he could have gotten the same sentence.

Furthermore, the Supreme Court was clearly uncomfortable with the lower Federal Courts intervening in the Atkins process before the state court made a final decision. So we can probably expect the matter to return to the Federal Courts after a decision is made by Ohio courts and appealed to the State Supreme Court.