The Supreme Court in Berghuis v. Smith looked at an appeal from a grant of habeas corpus in which the question, again, is not whether the trial court was right or wrong but rather whether the state court decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,”

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

“prohibits federal habeas relief unless the state court’s adjudication ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’. . . or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’”

In Smith the issue is whether Diapolis Smith, an African American, was denied his Sixth Amendment right to a jury consisting of a cross section of the population. He was convicted of murder by an all white jury in Kent County, Michigan. The lower courts in finding a constitutional violation cited Duren v. Missouri in which the Supreme Court developed a three part test “a criminal defendant must make to establish a prima facie violation of the Sixth Amendment’s fair-cross-section requirement:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

In Duren the underrepresented group was woman. The court found that women made up 54 per cent of the jury-eligible population but only 14.5 per cent of the weekly venires. In contrast the court in Smith found that African Americans in Kent County made up 7.28 per cent of the jury eligible population but only six per cent of the jury pool. In Duren the law did not require women to sit on juries. They were allowed to exclude themselves and if they did not answer jury summons they were assumed to have excluded themselves. Contrasting this to the system in Kent County where Smith claimed that the jury selection system which gave priority to the District Courts and allowed them to get first choice at minorities instead of the Circuit Court which tried felonies such as that with which he was charged.

But the Supreme Court did not find that the alleged discrimination in Kent County violated any “clearly established” decision of the Supreme Court. The figures in Duren cannot be compared to the figures in Smith. The Supreme Court has given the states wide discretion in determining how to meet constitutional jury requirements and no Supreme Court precedent clearly supports the Sixth Circuit decision supporting the granting of the writ of habeas corpus.

Jason Montes and Margarito Armijo were charged with participating in eight bank robberies in the Dallas area. They were convicted. Armijo was senenced to 4,692 months in prison and Montes to 4,705 months. (Yes, that’s nearly 400 years each!)

While there were several issues on appeal the only one worth discussing is Armijo’s claim that he was denied his Miranda rights.

In reviewing a district court’s denial of a defendant’s motion to suppress a statement given to the police, this court reviews factual findings, including credibility determinations, for clear error, and reviews legal conclusions de novo. Since the trial court held an evidentiary hearing on the matter where it could observe the demeanor of various witnesses it was in a better position to determine which witnesses to trust and which ones not to trust. That was particularly important in this case where their was contrasting testimony.

The police officers testified that Armijo did not clearly ask for an attorney during the interrogation and Armijo testified that he asked for an attorney. Under Supreme Court precedent an ambiguous or equivocal reference to an attorney does not result in the right to have a statement excluded at trial. The request must be clear and specific. The officers testified that Armijo signed a waiver acknowledging that at any time during the interrogation he could ask for an attorney. After answering questions the officers asked him to put it in writing. At that point he said something to the effect that “Maybe I should get an attorney” or “Do I need an attorney?” The trial court found the officers to be more credible than Armijo and the appellate court looking at the evidence in the light most favorable to the prevailing party in the trial court found the statement to be ambiguous and therefore the statement to be admissible.

In a case like this where it is a factual question the case is going to be won or lost in the trial court. Unless the trial court made a mistake as to the law an appellate court is unlikely to reverse a conviction. While appeals are filed as a matter of course after losing at trial expecting a better result on appeal is probably fruitless.

Charles Dickens started Tale of Two Cities with “It was the best of times. It was the worst of times. . .” Well if you are in San Francisco and you’re charged with a drug crime it may be the best of times and if you work for the police crime lab it may be the worst of times.

Last December the Police Department was notified that one of its supervising chemists, Deborah Madden was stealing cocaine from the laboratory for her own use. But the District Attorney office was not notified until February. By then other allegations had come up regarding the crime lab including problems involving chain of custody issues and contamination of the tested substances. Now we learn that Madden was not only using cocaine but she may also have taken oxycontin from the laboratory,

Furthermore it has been learned that Madden was convicted of domestic violence charges in nearby San Mateo County. The failure to notify defense counsel of the conviction may be a Brady issue. In Brady v. Maryland the Supreme Court ruled that a prosecutor and the police department must turn over evidence that may be helpful to a defendant to his/her attorney. This would include evidence that a prosecutorial witness committed a crime of moral turpitude. But evidence of Madden’s charges and conviction were only partially turned over earlier this month to defense counsel.

The crime lab was closed last month and drugs have been sent out to other communities for testing.

The number of cases affected is unclear. But the District Attorney’s most recent count is that 500 cases have been dismissed and another 1900 will be dismissed. This only includes open cases. Other cases, where convictions have been obtained may be reversed on writs of habeas corpus.

California voters will vote on legalization of marijuana in November. California’s Secretary of State, Debra Bowen, certified the Tax Cannabis Initiative after nearly 700,000 people signed the petition. The petition only needed 434,000 signatures.

California would be the first state in the Union to legalize marijuana and it would still be illegal under Federal law.

A poll last year showed that 56 per cent of Californians supported the legalization of marijuana.

The initiative if passed will allow everyone over 21 years old to possess up to an ounce of marijuana. Individuals would be allowed to cultivate and transport marijuana for personal use. They will be allowed to have a 25 square foot marijuana garden.

Cities would be authorized to regulate and tax the sale of marijuana. If they do not pass ordinances regulating the sale of marijuana possession will be legal in the community but selling it would be illegal. In all cases it will be illegal to sell to minors or to involve minors in the sale of marijuana. It will be illegal to have marijuana on school grounds and smoking it in public will be illegal.

The major arguments in favor of the initiative will be the failure of prohibition and financial. Despite marijuana being illegal and millions of dollars being spent to enforce prohibition a large number of citizens use it. Medical marijuana, which is legal in California, is available primarily to the middle class who can afford going to doctors and getting certified. The truth of the matter is that almost anyone with the money can get medical marijuana but the poor cannot afford going to the doctors who charge significant fees for the certification required under the medical marijuana laws. The poor end up buying it on the street and getting arrested. One problem with the initiative is that it will still outlaw street sales. As a result many of the sellers, who are often poor immigrants or youth will continue to be arrested.

California cities continue to suffer from the recession. The Federal government has cut back on many programs that provide money to the states and California has solved many of its budget problems by cutting back on support to local communities. As a result many communities are looking forward to being able to tax marijuana sales in order to provide services to the public. Legalization of marijuana will allow communities and the state to either cut back or make better use of money currently used to arrest, convict and incarcerate users, sellers and cultivators of marijuana.

But on the other hand many police officers and parents’ groups will continue to oppose legalization. They fear that despite the laws prohibiting possession of marijuana by those under 21 that legalization will make it easier for teenagers to obtain marijuana. Furthermore they are afraid that legalization will lead to more people driving under the influence of marijuana resulting in injuries and accidents.

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

The Eighth Circuit Court of Appeals reversed the conviction of Marc Sean Wisecarver for deprecation of government property after he shot a hole through the engine of a government owned vehicle.

Wisecarver owned a one sixth undivided interest in a a piece of land on the Pine Ridge Indian Reservation near Manderson, South Dakota. He reqested permission to rent out his share. The BIA sent Duke Bourne, a soil conservationist to determine the rental value of the property. Wisecarver saw Bourne drive onto the property. He did not recognize Bourne or the government truck he was driving. He yelled and waved at the truck. Bourne continued driving along the interior of the fence, nearly hitting one of Wisecarver’s horses. When Bourne again ignored Wisecarver’s yelling at him, Wisecarver got his gun.

Bourne drove over to Wisecarver, but he refused to identify himself, giving Wisecarver a phone number he could call. Wisecarver ordered Bourne off the property without the government vehicle because he was afraid Bourne would drive the truck into himself or his horses. Bourne refused and Wisecarver shot a bullet into the car’s engine. Bourne then walked off the property.

Wisecarver was charged with assault on a government officer and deprecation of government property. During deliberations the jury requested further instruction on the deprecation charge. The Judge, after conferring with counsel that:

[y]ou are instructed that the shooting of the pickup truck would constitute ‘depredation’ under the statute 18 U.S.C. § 1361, unless you find that the
defendant did not use justifiable force to protect his person or property.

Shortly after the instruction was given the prosecutor pointed out that the instruction had a double negative in it and misstated the law. But the judge decided not to change the instruction.

The jury found him not guilty of assault but guilty of deprevation.

Wisecarver raised three issues on appeal. First he questioned the sufficiency of the evidence. Second, he asked that the conviction be reversed due to the erroneous instruction. Third he challenge his 36 month sentence.

The Eighth Circuit found that the only issue in contention was Wisecarver’s intent when he shot the gun, that is the issue of self defense and that there was insufficient evidence to show self defense as a matter of law. But it reversed the conviction because the jury instruction was clearly wrong and if the jury followed the instruction as given reversal was necessary. After reversing the conviction it did not consider the sentencing errors.

Generally an inmate or a person on parole or probation must use a writ of habeas corpus to challenge their confinement or conditions limiting their freedom. The rules regarding the ability to file a writ of habeas corpus in Federal Court are complicated. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set up a number of rules limiting the ability to file writs of habeas corpus in Federal Court.

One of the rules prohibits people from filing “second or successive” petitions. In Restucci v. Bender the First Circuit Court of Appeals found that the rule does not apply to petitions alleging deprivations of liberty which could not have been challenged in earlier petitions. William Restucci was convicted of voluntary manslaughter in 1995. This is his third petition for a writ of habeas corpus. In his first writ he challenged the constitutionality of the statute under which he was convicted. The Court considered the writ on its merits and denied it. In his second writ he challenged the competence of his counsel The Court rejected the writ because it was a “Second or Successive” writ in that the issue could have been considered in the earlier writ. Now he has petitioned to be allowed to file a “Second or Successive” writ in order to challenge the denial of parole.

The First Circuit denied the petition, last week, as being unnecessary. Since the denial of parole came after the denial of his previous writs it could not have been considered in either of the previous petitions. As a result, under the AEDPA, it is not necessary for Restucci to file a petition prior to filing his writ of habeas corpus challenging the denial of parole.

The question before the Seventh Circuit Court of Appeals in Tully v. Rush County Prosecutor Paul Barada et al was whether one who had been issued a citation and had not been incarcerated could sue for false arrest on the grounds that the prosecutor had violated their Fourth and Fourteenth Amendment rights when probable cause did not exist to charge them.

The Seventh Circuit ruled that a Section 1983 claim cannot be based purely on a citation without an actual arrest. A citation, unlike an arrest does not involve a seizure under the Fourth Amendment.

Michael Tully and Brock Carfield were convicted of shooting across a highway in Indiana after a citizen reported hearing gun shots and they were found with a gun and a dead raccoon in their vehicle. The conviction was reversed on appeal and they sued.

The Court found that they did not have a cause of action since they were cited and were not arrested. They had not been seized under the Fourth and Fourteenth Amendments and therefore could not sue. Probable cause, without an arrest, according to the Seventh Circuit is not cause for a 1983 cause of action.

Aiding and abetting requires (1) an act contributing to the commission of the crime; and (2) the intent to aid in the commission of the crime. In United States v. Bronzino the Sixth Circuit, yesterday, found Vincenzo Bronzino guilty of aiding and abetting money laundering.

Bronzino paid an illegal betting debt to Peter Messina using 15,000 dollars worth of legally obtained betting chips. Messina was reluctant to take the chips. He was afraid that if he tried to cash them in he would have to give his name. Bronzino told him not to worry. That as long as he cashed less than 10,000 dollars of chips in at a time he would be okay. The law requires that anyone involved in a cash transaction of over ten thousand dollars provide their name and identity as well as the source of the money.

However the offense of structuring a money laundering transaction is accomplished by manipulating an event by using multiple transactions to avoid the ten thousand dollar limit. Bronzino did not deny that Messina committed money laundering when he used multiple transactions to convert the fifteen thousand dollars of gambling chips into cash. But he argued that by encouraging Messina to use multiple transactions he was not aiding and abetting the crime.

The Sixth Circuit found that Bronzino committed an act contributing to the commission of the crime with the intent to aid in the commission of the crime. Specifically he contributed to money laundering by “teaching” Messina how to perform multiple transactions in an attempt to avoid detection. As such he was a catalyst without which the crime would not have occurred.

Second, as to Bronzino’s intent, Bronzino argued that he did not have the intent to violate the money laundering laws. He merely wanted to encourage Messina to take the chips in payment of the debt. To be guilty of money laundering one must have the specific intent to violate the same law as the individual committing the offense. The Court found that while they had different motivations they had the same intent. Both wanted “to make the illegal venture succeed.” They both “shared the common purpose of consummating the transaction without triggering the federal reporting requirement,” The Sixth Circuit finding both an act and the intent upheld the conviction.

Recently we looked at Florida v. Powell in which the the Supreme Court limited the need to inform a detainee that he/she may have an attorney present during interrogation. On Friday the First Circuit in United States v. Mejia found that Ricardo Mejia implicitly waived his Miranda rights without expressly doing so.

Ricardo Miranda was arrested with Eudy Tejada-Pichardo (”Tejada”) after they sold two kilograms of cocaine to two government informants, Ambioris Falette and Marie Perez. Prior to the arrest Tejada was recorded, arranging the deal which was to go down at a McDonald’s, in two telephone conversations with Falette and Perez. Mejia was not recorded but telephone records show that he had over 470 conversations with Tejada in the six weeks prior to the transaction, including one on the night of the sale.

Mejia and Tejada arrived at the McDonald’s together. Tejada got into Falette’s vehicle with a suitcase. Mejia and Perez got into Perez’s car. The plan was to pick up the money but the vehicles were stopped by the DEA. Tejada and Mejia were arrested. Police found the cocaine in the suitcase and a gun on the floor of Perez’s car.

At the scene Mejia was orally advised in Spanish of his Miranda rights by Detective Andres Perez. At the police station he was again orally advised of his Miranda rights and he was given a written copy in Spanish. Detective Perez read him the rights. Mejia initialed each of the rights and signed the bottom of the paper. But he never said that he waived the rights. After signing the form he began answering questions. Mejia said that Tejada gave him the gun at McDonald’s and that his job was to protect Tejada. When the officers attempted to commit his statement to writing for him to sign Mejia became evasive and the interview was terminated.

The First Circuit found that Mejia implicitly waived his Miranda rights. He initialed a box saying that he understood his rights and he answered questions after being advised of his rights, having his rights read to him, and being given the rights in writing. The Court found that “[t]he totality of the circumstances indicate that this was a voluntary conversation that Mejia undertook after having been fully advised of his rights.”

Mejia made three objections. First he claimed that the “suspected crime” section of the Miranda form was not completed but the Court found that immaterial since he was arrested in the middle of the transaction. Second he claimed that the Miranda warnings were not properly translated but Detective Perez was a native Spanish speakers and he was given the rights in writing. Finally his statement was not recorded or contemporaneously put into notes. But this issue was not raised in the trial court so the appellate court found it waived.