Franklin Woods plead guilty to conspiring to manufacture fifty grams or more of methamphetamine. He was sentenced to 108 months. In determining his sentencing guidelines the District Court applied an enhancement for possession of a firearm. There was no evidence that Woods had a firearm or that he knew that a firearm was present. The evidence of manufacturing was found in a co-defendant’s residence. But the District Court assumed that Woods knew that there was a high likelihood that a gun would be present in a residence used to manufacture methamphetamine.

The District Court found that Woods was responsible for 53.64 grams of methamphetamine, which has a value of approximately $5,000. The Sixth Circuit Court of Appeals remanded the case to the District Court for resentencing. Previously it has determined that when there is a large amount of narcotics it is safe to assume that one of the defendants has a gun. But in those cases, barring evidence to the contrary, it has never assumed that a co-defendant had a gun when the value of the drugs was less than $60,000.

What I do not understand is why based solely upon the value or the quantity of the narcotics one can assume that a gun is present. Certainly it is not unusual to find a gun when narcotics are present. Often a gun may be present when the value of the narcotics is considerably under $60,000. But if we assume that those who would conspire together to manufacture of sell drugs know each other fairly well, based upon their knowledge of each other or the history of their relationship they may know whether a gun is likely to be present or not be present. Certainly there are any number of cases where guns are not present.

Marshall Kanner was a principal owner of Pharmacon International Corporation. Pharmacon sold prescription medication over the internet. Patients sent descriptions of their medical problems over the internet. Doctors reviewed the descriptions and prescribed medication. Pharmacon filled the prescriptions.

Among the prescriptions filled were prescriptions for Schedule III and Schedule IV controlled substances for which a prescription is necessary. The government charged Kanner and others with conspiring to distribute controlled substances in violation of 21 U. S. C. 841(a)(1) much like it charges people with conspiring to sell illegal drugs. It’s theory was that since the doctors never saw the patients the doctors were not practicing medicine and therefore the distribution was in violation of the Controlled Substance Act. (CSA)

The guiding law on this matter is the Supreme Court case, United States v. Moore. In Moore the Supreme Court held that doctors could be prosecuted for violating the CSA if “their activities fall outside the usual course of professional practice.” Kanner argued that Moore had been supplanted by Gonzales v. Oregon in which the Supreme Court considered a 2001 Interpretative Rule by the Attorney General prohibiting doctors from prescribing medication in compliance with Oregon’s assisted suicide law. In Gonzales the court said the CSA bars the prescription of drugs for illicit purposes and since the Oregon doctors were prescribing medication in compliance with Oregon law they were not violating the CSA. While the CSA bars prescriptions issued for illicit purposes it still only protects doctors who are prescribing medication in the “usual course of professional practice.” Since prescribing medication without ever seeing or examining the patient and without the ability to verify patient’s complaints is not within the “usual course of professional practice according to the Eighth Circuit Court of Appeals, Pharmacon violated the Controlled Substance Act and it upheld Kanner’s conviction.

While I am not sure I would want to be prescribed medication by a doctor who never examined me and had no way of verifying my complaints, it does seem overly harsh to prosecute pharmacies and doctors who prescribe legitimate medication over the internet in the same way the government prosecutes drug dealers.

Joseph Carey plead guilty to conducting an illegal gambling business in 2003. As a convicted felon he is ineligible to possess a gun. In Heller the Supreme Court specifically excluded convicted felon from those who could possess weapons.

Carey now wants to have a gun. Therefore he moved in the United States District Court to expunge his record. The motion was denied, without a hearing, on the basis that the court did not have jurisdiction.

Carey appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit held that “[a]n order on a motion to expunge a conviction is within the equitable jurisdiction” of the District Court. Therefore the proper action for the Sixth Circuit to take is to return the case to the District Court for it to consider whether or not, using its equitable jurisdiction it should grant the motion to expunge. But instead the Sixth Circuit affirmed the District Court decision saying that the District Court properly used its discretion in denying Carey a hearing and in denying his motion. The problem is that the District Court never used its discretion in denying the motion since it wrongly decided that it did not have jurisdiction.

Employees from the Stone County (Missouri) jail transported Penny Whitson and four men in the same van to the state Department of Corrections. The van consisted of three section. In the first section were two employees of the jail, one of whom drove the van. In the first caged section behind the driver were three men. In the back caged section was one man, Richard Leach, and Whitson.

The van was dark and noisy. The officers were playing loud music. Whitson alleged that Leach raped her. She did not immediately complain but she complained when the van stopped at a rest stop and when they got to the prison. A rape test at the prison showed mobile sperm.

She sued the deputies in the van for failure to protect her. She also alleged that the jail and supervising officers failed to properly train and supervise the officers.

The District Court granted the defendants motion for summary judgment but the Eighth Circuit Court of Appeals reversed the trial court decision finding that triable facts exist. On a motion for summary judgment the question is whether as a matter of law one party wins and that there are no facts which need to be decided by a jury.

The Eighth Amendment’s prohibition of cruel and unusual punishment places a duty of prison authorities to protect prisoners from injury caused by other prisoners.

In order to prevail in a civil rights suits for damages resulting from injury caused by another inmate a two part test must be proved. First, objectively the inmate must prove that “the deprivation of rights was sufficiently serious; i.e., whether the inmate “is
incarcerated under conditions posing a substantial risk of serious harm. . . The second requirement is subjective and requires that the inmate prove that the prison official had a sufficiently culpable state of mind.”

The defendants wrongly claim that since the officers did not have specific information that Leach, the alleged rapist, was a danger to Whitson that summary judgment was appropriate. But as the Court points out that a substantial risk of injury can exist without the officers knowing specific information about Leach’s dangerousness. For example other officers may have received complaints or jail regulations may require particular steps be followed when transporting male and female inmates together. None of these issues were raised on summary judgment and therefore triable facts remain to be determined at trial.

A thirteen year old boy punched a schoolmate and stole forty-six cents from him. Proper punishment–some time in youth hall maybe. Counseling–perhaps. But in this case the fourteen year old, his mother and his brother, but not his stepfather who is a US citizen were almost deported when it was discovered that their visa had expired.

San Francisco Mayor Gavin Newsom instituted a new policy under which every juvenile alleged to have committed felonious conduct and who was in the country illegally is reported to Homeland Security for deportation. No conviction is necessary. So when the boy was arrested and charged with robbing forty-six cents the Juvenile Probation Department reported it to Homeland Security and the kid, his mother and his five year old brother were ordered to leave the country by March 5. Luckily some strings were pulled in Washington and the deportation order was delayed. Yesterday it was announced that the family had been given green cards and would not be deported.

The ironic part of this is that the boy’s mother, Tracey Washington is married to Charles Washington, a Municipal Bus driver and a United States citizen. Therefore she and her children are eligible for citizenship.

As Charles Washington pointed out after it was announced that his family would be allowed to remain in the country, in a letter to Newsom

“Your policy hurts families and tears children away from their parents for minor, first-time offenses,” Charles Washington, a Muni bus driver, said in a letter to the mayor.

“Our family’s luck in this case was unique, but Mr. Newsom, the pain we felt when our family was facing deportation as a result of your policy is not unique.”

Other consequences are that children who have spent most of their life in this country are deported to countries where they cannot speak the language. Children may be deported, without their parents to countries where they do not have family or know anyone. The Board of Supervisors pass legislation rejecting the mayor”s policy. But Newsom vetoed it. The Board overrode the veto but Newsom has refused to enforce the legislation.

The Supreme Court ruled yesterday that 18 U. S. C. §48 which criminalizes the commercial creation, sale, or possession of certain depictions of animal cruelty, but which does not penalize the actual cruelty a violation of the First Amendment.

The statute defines “depiction of animal cruelty” as

any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State;

As such many of the illegal acts are not acts of cruelty. It would include pictures of a veterinarian putting a cat to sleep and pictures in hunting magazines. The statute excludes

any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

But it would still excludes hunting magazines where the purpose of the picture is to entertain. Particularly in Washington DC where hunting is illegal. Pictures of legal cock fights in Puerto Rico would be illegal if sent to any of the fifty states.

The stated purpose of the legislation was to outlaw pictures of crush videos in which people are seen killing animals by stepping on them, often with high heels to give others sexual pleasure. But United States v. Stevens involved dog fighting.

Since the vast majority of pictures that violate the law, including hunting magazines, would not be considered by most people to be cruel the Supreme Court found that the legislation was overbroad and therefore unconstitutional.

Louisiana lawmakers are considering legislation that would require all people who have been convicted of two felony drug offenses to have the words “Drug Offender” printed in orange on their driver’s license. The bill which is sponsored by Rep. Rickey Hardy, D-Lafayette has been unanimously approved by the House Committee on Transportation, Highways and Public Works. Now it will go before the full House.

Louisiana already requires certain people convicted of sex offenses to have the words “Sex Offender’ printed on their license.

According to its supporters the legislation will help law enforcement officers. But the effect of the legislation would be to destroy the lives of ex-felons who may no longer be involved with narcotics. Driver’s licenses are used for many things. You cannot cash a check, rent an apartment, or get governmental services without showing your driver’s license. Thus the effect of the legislation may be to force ex cons to go homeless. steal merchandise, or go without vital services.

Furthermore any assistance to peace officers is minimal at best. Arrests can only be made upon a showing of probable cause. And probable cause cannot be based upon past convictions. It can only be based upon current information. It may result in police officers making arrest and performing searches without probable cause and these cases would have to be thrown out by the courts.

Thus while providing little benefit it would make it more difficult for ex offenders to get jobs, housing, and benefits. I guess the only way they will be able to survive is by selling drugs. Good job legislators!

Streamwood, Illinois police officer, James Mandarino, while making a traffic stop, tasered, Ronald Bell, the driver and hit him with his baton 15 times. The Cook County District Attorney has charged Mandarino with felony aggravated battery and official misconduct.. The beating may not be unusual but the charges are becoming more common. What made the charges possible was a video of the beating taken by a camera in the officer’s vehicle.

Many cases of police using excess force are making the press and some of them are resulting in criminal charges. Videos are also helping law enforcement officers fight charges of excessive force such as the case of the Bay Area Rapid Transit (BART) officer who was accused of throwing a man through a glass window but the video showed that it was the suspect was punching the window. But of course another BART police office is facing murder charges based upon a cell phone video for killing Oscar Grant, a BART passenger, on New Years Eve 2009.

While some of the video’s,such as that of Mandarino are taken from cameras in their vehicles, others such as the video of Rodney King were taken by citizens. With the advent of cell phone cameras videos, such as the killing of Oscar Grant, and You Tube are becoming omnipresent.

Videos can also be used to help convict or exonerate individuals. But mny police departments have been slow to install them in police cars. In DUI’s I can think of no better evidence that a videotape of the suspect performing the field sobriety tests.

One of the advantages of videos, although it did not work in the Bell case, is that it should make police more reluctant to use unnecessary force. But Mandarino tasered Bell and hit him numerous times with his baton despite the fact that Bell did not offer any resistance and despite the fact that it was being recorded on the officer’s camera.

The vast majority of people who come before our criminal courts at one point or another face sentencing. Either they plead guilty, often as part of a plea agreement or they are found guilty after trial. Particularly in the Federal Courts sentencing is a complicated and drawn out procedure. As a result many of the cases that are decided on appeal involve sentencing issues. As a general rule if one pleads guilty and admits the charged offense one cannot allege innocence on appeal. Thus the only issue on appeal in most cases where there is a guilty plea is the sentence imposed.

In United States v. Pape the Seventh Circuit Court of Appeals considered the correctness of a sentence in a child pornography case.

Jason Pape was an outstanding member of his community. He was a businessman and he was active in his church. He took excellent care of his children and of wife’s children she had by a prior marriage, one of whom was autistic. He had no criminal record.

There is no evidence that he mistreated his children or abused any children. But he was indicted after his daughter reported to her school that she had accidentally run across child pornography on Pape’s computer. He plead guilty and was sentenced to 90 months in prison and twenty year of supervised release. The sentence was below the advisory guideline range of 97 to 120 months.

Appellate consideration of a sentence involves two issues. The first question is whether the sentencing court followed the correct procedure and the second question is whether the sentence is reasonable or whether it is an abuse of discretion.

There was no question raised about the procedure followed by the sentencing judge. But Pape raised four issues on appeal regarding the reasonableness of the sentence. First he claimed that the court did not take sufficient consideration of his parenting responsibilities. While the court must consider non-frivolous issues raised by the defendant the weight to be given to each issue is up to the court. It is clear that the court considered his parenting responsibilities and while the court’s language is slightly ambiguous at times it clearly took the responsibilities into consideration.

Second, Pape argued that the court failed to consider sections of the Guidelines that authorize consideration of extraordinary childcare responsibilities but these sections do not apply to child pornography cases.

The third issue raised by Pape is that the sentencing court failed to consider his argument that the child pornography guidelines “do not reflect the result of careful study based in empirical analysis and national experience.” The Seventh Circuit found that by sentencing Paper after considering the Guideline the sentencing judge implicitly rejected the defendant’s argument.

Pape’s final argument was the vast difference between the various District Courts in Wisconsin. But since the sentence below Guidelines and Pape did not provide any explanation for the variation the Seventh Circuit found that the argument lacks substance. It affirmed the sentence.

The large headline claiming that a fifteen year old girl sold her seven year old sister for sex at a Trenton, New Jersey party last month certainly attracted attention. But the actual facts are much muddier and we may never know what happened. Besides the sister two men and three juveniles were arrested. Apparently much of the information that we have heard comes from the police interrogation of the two youngest juveniles who are 13 and 14 years old. Both of them have learning disabilities. One is illiterate. Those who have listened to the tapes of the interviews say the police used leading questions and promised the boys that they would be released if they cooperated. At times the polices put words in the boys’ mouths and pushed the kids into implicating particular people.

The thirteen year old cried throughout the interrogation and continually asked for his mother. At one point in the interview he said: “I should just make up a story to get it over with.”

The interview with the seven year old is not much more helpful. She apparently walked into a room and watched her sister having consensual sex for money. Then her statement parroted her sister’s statement.

We may never know the whole truth although the results of DNA tests should clarify the situation to some degree.