Myron Robinson, like many other people ignored his lawyer’s advice and spoke to the police, believing that he could talk himself out of trouble. But like most other people in his position he talked himself into a conviction and a stay in the Federal pen. Even after the police gave him the Miranda warnings he continued to talk and the more he talked the more trouble he was in. Now Myron thought he was smart. After all he was friends with an FBI agent and he was friends with the US Attorney. At least he thought they were his friends. He had been a cooperating witness on a case. He even invited agents over to his mother’s house. As a result he thought he could talk himself out of trouble and that he was immune from arrest. WRONG!!! They arrested him and used his statement against him to send him to the pen.

On appeal he asked the appellate court to find that his statement should have been excluded and that his conviction reversed. WRONG!!! The question was who initiated the interrogation. If the FBI initiated the interrogation after being told by Robinson’s lawyer that he asserted his right to remain silent the statement would be excluded, If Robinson initiated the conversation in which he gave the statement then the statement would be admissible.

The Seventh Circuit Court of Appeals found that the question of who initiated the conversation was a factual question and therefore it was reviewed for clear error. It came down to whether the court believed Robinson or whether the court believed the agents. “Where a factual finding rests on the district court’s credibility determination, it ‘is entitled to great deference and can virtually never be clear error’.”

Thus Myron’s big mouth earned him ten years in the Federal pen on gun charges. MAYBE next time he will listen to his lawyer.

In an immigration matter the Fourth Circuit Court of Appeals remanded the case of Marvin Maroquin-Bran to the trial court for resentencing after the trial court erroneously applied a sixteen level sentencing enhancement for reentering the nation after being convicted of reentering the country after being convicted of a drug trafficking offense.

Maroquin-Bran reentered the country after being convicted of violating California Health and Safety Code Section 11360(a). Section 11360(a) states in pertinent part:

[E]very person who transports, imports into this
state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give
away, or attempts to import into this state or transport any
marijuana shall be punished by imprisonment in the state prison for a
period of two, three or four years.

The trial court found Section 11360(a) to be a drug trafficking offense. But the appellate court found otherwise. A drug trafficking offense is one that ” prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled
substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” a controlled substance. While Section 11360(a) does outlaw drug trafficking it also outlaws other activity. Specifically it outlaws transporting marijuana. Transportation is not an element of drug trafficking. Therefore unless there is evidence that Maroquin-Bran actually participated in drug trafficking the enhancement cannot be imposed. Case law limits the evidence of trafficking to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Therefore the Fourth Circuit remanded the case so that the trial judge can determine whether or not their is proper evidence that Maroquin-Bran committed a drug trafficking offense.

Another report shows that marijuana arrests are costly, do not decrease marijuana use and are particularly injurious to young men and African Americans. In a new report funded by the Marijuana Policy Project Foundation Jon Gettman reviewed the data in the Marijuana Almanac as to the use of marijuana, the number of arrests, and the punishment for possession of marijuana in the fifty states and the District of Columbia.

The report looks at the reasons given for incarcerating marijuana users:

a) Arresting adults and criminalizing marijuana markets is the best way to discourage
 and control  teenage marijuana use.    
b)
Marijuana’s illegality is the best way to discourage and reduce marijuana use; 
more people would use the drug if it were legal. 
c)
Marijuana arrests are not widespread and penalties are relatively mild. 
d) Smoking marijuana is not the optimal method of delivering its therapeutic
 benefits to patients. 
e)
Marijuana use is a risky activity for individuals afflicted with schizophrenia.

 

In so far as the statistics in the Marijuana Almanac are relevant the statistics do not support the reasons for incarceration. There is no correlation between greater punishment and less use of marijuana. For example, Mississippi and Nebraska have decriminalized marijuana but relatively few people used marijuana in these states. At the same time Utah and North Dakota have low arrest rates and low usage rates.

The statistics also show that while 25 per cent more African Americans use cannabis than White Americans the arrest rate for African American is three times as great as it is for white Americans.

Another statistic is that state and local governments pay 10.3 billion dollars to arrest people for possession of marijuana. Decriminalization save California taxpayers 857 million dollars in 2006.

The California Supreme Court ruled that having a deputy escort an in-custody defendant to the witness seat and sit next to him/her while he/she testifies is not a violation of the defendant’ due process rights under the Fifth and Fourteenth Amendments to the U. S. Constitution.

Lorenzo Stevens was charged with attempting to molest his daughter and giving her crack. His daughter lived with her grandmother. According to her testimony at trial, he called her up and asked her to meet him at Taco Bell. They walked to a truck he used as a residence. He gave her a piece of rock cocaine and attempted to get her to copulate him. She escaped and reported the incident to her grandmother and her mother. The police were called. Stevens led the police on a wild escapade by jumping from roof to roof.

According to his testimony his daughter made up the story. He claimed that she made up the story after he asked her if she was sexually active and if she used drugs.

Prior to testifying he was escorted to the witness seat by a sheriff’s deputy who sat beside him during his testimony. No other witness was escorted by a deputy and deputies did not sit beside any other witness.

While certain courtroom security techniques such as shackling the defendant or requiring him/her to wear jail garb while before the jury are “inherently prejudicial” and require a “manifest need” before they can be imposed having a deputy sit next to the defendant while he/she testifies is not an “inherently prejudicial” act requiring a “manifest need” for such a technique. The Court points out that American citizens are accustomed to having security offices in official places and the jury may not pay any attention to it. But as the dissent, by Justice Moreno points out having a uniformed guard sitting next to the defendant when he testifies, like shackling the defendant or having him/her dressed in jail clothes indicates that the defendant must be separated from the community at large.As Justice Moreno pointed out the use of a uniformed deputy sitting next to the defendant as he testifies violates the presumption of innocence.

While the United States does everything in its power to prevent civil suits against those involved in extraordinary renditions, the practice of the CIA of kidnapping alleged terrorists abroad and shipping them to third countries, Italy is criminally prosecuting CIA agents involved in the renditions.

Twenty-three Americans were convicted of kidnapping a Muslim cleric, Osama Moustafa Hassan Nasr, off the streets of Milan and transporting him to Egypt where he was allegedly tortured. Robert Seldon Lady, the former CIA base chief in Milan was sentenced to eight years and 22 other CIA employees were sentence to five years each. Lady is quoted as saying, “I’m not guilty. I’m only responsible for carrying out orders that I received from my superiors,” Since they were prosecuted in absentia it is unlikely that any of the agents will serve their time.

In 1996 California voters approved Proposition 215 which approved the medical use of marijuana. In 2003 the state legislature passed Senate Bill 420 which attempted to regulate the medical use of marijuana. Among the provisions of SB 420 was a rule limiting the amount of medical marijuana an individual may possess to eight ounces and six plants. A second provision created a voluntary ID card for those who possess no more marijuana than the statute’s limits.

Patrick Kelly was arrested and convicted for possession of seven plants and twelve ounces of marijuana in his house even though he has the required permission from a doctor to use medical marijuana. The Court of appeals reversed his conviction finding that limits on the amount of medical marijuana one may possess is an unconstitutional modification to Proposition 215 and that the ID cards which are only available to those who possess less than eight ounces are also unconstitutional.

The state constitution prohibits the legislature from modifying a proposition enacted by a vote of the people. Both sides admit that any limit on the amount of medical marijuana a person can possess cannot exceed what a person needs and that different individual may need different amounts. Both sides also want to save the medical marijuana cards.

Now it is up to the Supreme Court. It has ninety days to rule.

The Supreme Court declined to decide whether the statute of limitations has run on the conviction of James Ford Seale. A little used provision of the law allows a Circuit Court of Appeal to certify a question to the Supreme Court. The Fifth Circuit Court of Appeals certified a question to the Supreme Court on whether or not Seale was tried within the statute of limitations.

Seale was tried for the 1964 kidnapping by members of the Ku Klux Klan of two African American young men. Under Federal law there is no statute of limitations for capital offenses. Other felonies carry a five year statute of limitations. In 1964 kidnapping was a capital offense. While it is a capital crime now if it results in murder for most of the time between 1964 and the present it was not a capital crime. Thus the question that the Fifth Circuit asked the Supreme Court is whether the 1964 statute of limitations applies or the 2007 statute of limitations.

In 2007 Seale was tried and convicted for the Ku Klux Klan murder of Henry Dee and Charles Moore. Seale appealed to the Fifth Circuit. A three judge panel reversed the conviction on statute of limitations grounds. The panel did not decide other questions raised on the appeal since it reversed the conviction and sent the case back to the District Court. But an en banc decision deadlocked 9 to 9, which reinstated the District Court’s conviction. The en banc court instead of returning the case to the three judge panel for a decision on the other issues raised on appeal certified the question of the statute of limitations to the Supreme Court.

Dee and Moore disappeared in the heat of Mississippi’s Freedom Summer in 1964 when civil rights workers descended upon Mississippi to register African American voters. Even though Dee and Moore were not involved in the civil rights movement or in the registration of voters they were seized by a group of Ku Klux Klan, kidnapped and murdered. But the police and the district attorney were unable to prove the case against Seale or the others in the group. The only witness was a confidential informant who was afraid for his life if he testified or if his name became known publicly. The arrest was only possible after a reporter for 20/20 found the informant, Ernest Gilbert and encouraged to go public with his detailed knowledge of the murder.

Of course after the Fifth Circuit hears the other questions on appeal the case is likely to return to the Supreme Court on direct appeal.

It may be politically incorrect but I have a problem with a prosecution that occurs 43 years after the crime. We are not the same people that we were 43 years ago. Incarceration forty-three years after the crime is hardly going to prevent further crimes. After all few crimes are committed by 72 year olds. No matter how hard we try memories fade and witnesses die in a 43 year period. A trial 43 years later does not have a rehabilitative effect. The only reason to have a trial is to punish the wrong doer and that has little benefit when you are talking about a sick senior citizen.

The Fifth Circuit Court of Appeals found a lack of exigent circumstances to support a warrantless search and reversed Ariel Menchaca-Castruita’s conviction for possession for sale of marijuana

Mr. Menchaca rented a house in McAllen, Texas, In the three month period after he rented the house he did not pay any rent. The landlords decided to make a personal visit to the residence. They knocked on the door and their was no answer. They saw him through a bedroom window and he opened the door to talk to them. He offered to pay the rent but they insisted on coming into the house to see what condition it was in. When they entered they saw a bundle of marijuana. They called the police and Menchaca left the home. Before he drove away Menchaca threatened the landlord with a tire iron but was unable to make contact.

The police arrived and after talking to the landlords they immediately searched the residence. After Menchaca was arrested he made a motion to suppress the evidence on the grounds that the search was committed without a search warrant. The government responded that a search warrant was not necessary. The government claimed that the search was justified by exigent circumstances. The government pointed out that:

(1) the officer was aware that an assault had occurred shortly before his
arrival on the scene; (2) he had reason to believe that there was marijuana inside
the residence; (3) he was unsure whether additional persons were present inside
the residence; (4) he knew from experience that persons who engage in drug
trafficking often carry firearms; and (5) he was concerned for his own safety as
well as the safety of the bystanders

The Fourth Amendment requires that prior to searching a private residence the police get a search warrant. But there are a limited number of exceptions to the rule. One of the exceptions is that the police may search a residence without a search warrant if exigent circumstances exist. Among the factors to be considered in determining whether or not exigent circumstances exist are.

(1) the degree of urgency involved and amount of time necessary to
obtain a warrant;
(2) the reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

The Fifth Circuit found that the government had not provided any evidence that there was any danger to the officers or that the evidence might be destroyed. On the contrary, the evidence indicated that Menchaca had left the residence and that there was no evidence that anyone was still in the building. Furthermore it was on a week day and the officers would have no trouble getting a magistrate to sign a search warrant. In support of the reversal of the trial court ruling that the search was constitutional the appellate court found that;

(1) When Menchaca fled in his truck, he knew that Mrs. Garcia had called the
police, so he could have, and almost certainly would have, alerted any of his
accomplices to flee with him; (2) the officers knew that Mr. Garcia had peered
into the side windows of the house and had seen only Menchaca there; (3) Mrs.
Garcia never mentioned an accomplice, and the testimony at the suppression
hearing at least suggested that Ms. San Miguel might have told the officers that
there were no accomplices inside the house; (4) the front door to the residence
had been left open, indicating a hasty retreat as well as an unsecured premises,
inconsistent with the probability of additional occupants; and (5) there were no
sounds coming from inside the residence to suggest that someone might have
remained behind.

As a result the court found that it was unlikely that anyone else was in the building or that the police were in any danger. As a result it reversed the conviction finding that there were not exigent circumstances supporting the search and that Menchaca’s Fourth Amendment right to be secure in his property had been violated.