Catherine Miller plead guilty in Federal Court to crossing state lines to have sex with a minor. The presentence report recommended a within guidelines sentence of between 70 and 87 months. However the court sentenced her to 120 months.

The Sentencing Guidelines as originally passed were considered mandatory and judges had only a limited ability to deviate from them. But in United States v. Booker the Supreme Court found the guidelines to be advisory. While the courts have the ability to deviate from the Guideline deviations are limited and must be reasonable.

At sentencing and on appeal Miller objected to the courts adoption of the Probation Department’s recommendation that that the sentencing guidelines be enhanced by an undue influence enhancement. However such enhancement, while subject to rebuttal are required in cases where there is an age difference of over ten years. Neither the trial court not the Seventh Circuit found that the enhancement had been rebutted despite some evidence that the juvenile had prior sexual experiences and seemed open to a romantic relationship with Miller.

The second issue on appeal was the government’s use of surprize evidence at the sentencing hearing. Specifically, the government introduced photo albums showing Miller with other minors. When Miller’s attorney objected, the court gave him a five minute recess to talk to his client. He said thank you and did not further object. Therefore the appellate court found that Miller waived any objection on appeal.

The final issue was the fifty percent upward deviation from the guidelines. The trial court based its decision on the high rate of recidivism among sex offenders. The appellate court rejected the finding and returned the case to the trial court for resentencing. First it found that if there is a high rate of recidivism it applies to all people charged with the crime and the Sentencing Commission would have taken this into consideration in writing the guidelines. Second it found there was no evidence at the sentencing hearing that supported a belief in a high rate of recidivism and there is evidence to the contrary. Therefore it reversed the sentence.

A former assistant United States attorney who prosecuted fraud cases against Lyndon LaRouche in the 1980′s has been disqualified to represent a woman suing LaRouche. After prosecuting LaRouche, John Markham II left the United States Attorneys office in 1989 and formed a private practice. Now he has been retained by Marielle “Molly” Kronberg, a former government witness against LaRouche to sue LaRouche and others for harassment.

But according to The BLT: The Blog of LegalTimes Judge Anthony Trenga of the U.S. District Court for the Eastern District of Virginia disqualified Markham from representing Kronberg due to confidential Federal files that he viewed while prosecuting LaRouche. Judge Trenga found that Kronberg had a unnecessary advantage as a result of Markham’s knowledge obtained from viewing the confidential files.

Disqualifying Markham is unusual. Most cases involving the disqualification of a lawyer occur where she/he has represented both sides. For example, if Markham was representing LaRouche and as part of his Federal duties he had interviewed Kronberg or had read confidential reports of her interviews he should be disqualified because he could use confidential information obtained from Kronberg against her. But that is not the case. He has consistently represented parties opposing LaRouche and information obtained from Kronberg while he worked for the government will only be used to help her now. She could tell him the same information now that she did twenty years ago. There is no conflict of interest.

Edgar Ayala and Oscar Velasquez are members of La Mara Salvatrucha (generally known as MS 13). They were convicted of various RICO and VICAR offenses in Maryland involving gang related murders, rapes and robberies. RICO is the Racketeer Influenced and Corrupt Organizations Act AND VICAR is the Violent Crimes in Aid of Racketeering statute.

Ayala was the Second Word, or second in command of the Sailors Locos Salvatruchos Westside section of MS13 and Velasques for the First Word or head of the the Teclas Locos Salvatruchos. Both sections were located in the Baltimore area. MS 13, originally found in Los Angeles is now spread throughout the country and Central America. It is known for its use of violence to maintain group discipline, turf control and opposition to other gangs.

Both defendants were convicted of conspiracy to participate in racketeering activity and a VICAR offense, conspiring to commit murder, Ayala was also charged with the VICAR offense of conspiracy to commit murder. On appeal Ayala claimed it was double jeopardy to charge him with both offenses since they were both based on the same conduct. But the Court found that the RICO offense and the VICAR offfenses are two different offenses and Ayala could be convicted of both even though the same conduct led to both convictions. Using the Blockburger test, the court ruled that since the RICO conspiracy and the VICAR conspiracy have at lease one element that is not held in common with the other, Congress in passing the RICO and VICAR sgtatutes want to punish different things and therefore a person could be convicted of both even though they are based on the same behavior.

The VICAR offense unlike the RICO offense requires an intent to elevate one’s position in the gang. The RICO offense, unlike the VICAR offense, requires proof of a pattern of racketeering activity. Thus while the same murder can be used to prove each offense, the offenses are different and according to the court one can be convicted of both without violating double jeopardy.

The Ninth Circuit ruled in, United States v. Juarez, that the Federal that the tolling of a term of supervised release begins whenever a person absconds not when a warrant is issued.

Manuel Ignacio Juarez was sentenced to 46 months in prison and four years of supervised release in 1989 for bank robbery. After he did his 46 months he was turned over to INS and deported. At some point prior to 1993 when he applied for a California driver’s license under a false name he came back into the country illegally. Since he did not notify his probation officer of his new address within 72 hours he was considered to be a fugitive.

He was arrested and released in 1994 for possession of paraphernalia and he was arrested and kept in custody in 1995 for two robberies. He was sentenced to 15 years. Time in custody is tolled towards completion of the supervised release.

A Federal Judge issued a bench warrant for him for violation of his supervised release in 2005. When he was released from prison on the state robbery charges in 2009, he was turned over to the Feds on the supervised release warrant and he was sentenced to eighteen months. He appealed claiming that his supervised released terminated prior to the the issuing of the warrant. When excluding the time that Juarez was a fugitive and the time that he was in state custody his period of supervised release did not terminate prior to the issuance of the warrant in 2005. Once a warrant is issued the period is tolled until Juarez is brought back into Federal custody and a judge acts upon the warrant. In this case it was 2009.

Thus a period of supervised release can be a lifetime sentence. I doubt anyone really expected Juarez to report to his probation officer when he returned illegally to the country. (Although once I had a client who was released upon entering a plea and ordered to return for sentencing. No one expected this to happen since he was going to be deported. But just in case I showed up at the courthouse on the sentencing date. He had been deported and the judge issued a warrant. As I am walking out of the courthouse, who do I see? He knew he was supposed to be in court for sentencing so he illegally returned to the country for sentencing.) Thus Juarez was considered a fugitive. This could go on forever.

President Obama has authorized the capture or killing of Anwar al-Awlaki. Al-Awlaki is an American citizen, born in new Mexico of Yemeni parents. Allegedly he is a recruiter for al-Qaeda.

He may be the first American citizen placed on the targeted killing list. Although I’m not sure what difference it makes whether he is an American citizen or not. We are supposed to be a nation of law. The proper thing to do is to indict him, perhaps on treason charges, and ask the Yemeni government to arrest him and extradite him. This is the legal thing to do.

At this point he is in hiding in Yemen and neither the Yemeni government or the American government know exactly where he is. Though there are all sorts of rumors about his conduct and participation in al-Qaeda, I suspect the government wants to kill him because it does not have enough solid evidence to indict him.

The government will probably justify the killing of al-Awlaki by asserting that international law permits the killing of individuals who pose an imminent threat to a country and also it will point out that we are at war with al-Qaeda. But even if he poses an imminent threat and even if his killing would be permissible under international law it does not mean that we should kill him. We like to think of ourselves as a humane example to the rest of the world–as a nation that believes in the rule of law. Even if it is permissible under international law, it may not be permissible under out Constitution. Both the Sixth and Fourteenth Amendments require due process of law. The Fifth Amendment states in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . .

His killing may be justified under the Fifth Amendment as being in time of war. It would appear to me, however, that the Fifth Amendment allows for the killing of members of the military by court marshal without an indictment during war but not of US citizens who are not members of the military. But the sad fact is that the Courts will never get a chance to decide whether the killing is legal or not because he will not be indicted and charged.

The old adage, “justice delayed is justice denied” has once again been proven true. Twenty years ago Erick Flores-Rivera was arrested and the government seized his new Jeep Cherokee, $1,903 in cash, and other items. All parties admit that the seizure was without proper notice and therefore illegal. Flores-Rivera plead guilty to two counts in January 1991 and was sentenced to twenty years in prison.

From 1992 to 1999 the government used the vehicle and then sold it for $6400. During this period Flores-Rivera entered into a contract with the government to make installment payments on a fine that was imposed upon sentencing.

Throughout this entire period Flores-Rivera diligently attempted to get his vehicle and his money back. In 1999 the government conceded the illegality of the seizure and the need to return the property to Flores-Rivera. But it was not until 2006 that the government requested the court to set a hearing date. But no date has yet been set. In 2006 the government said it did not know what happened to the vehicle or the car. In 2007 it reported that the car had been sold and the money placed in a forfeiture fund.

In July 2006 an attorney was appointed to represent Flores-Rivera but he was not informed of the appointment until 2008.

In November 2008 the First Circuit Court of Appeals, upon a further motion from Flores-Rivera ordered the District Court to determine the value of the seized property. The District Court ignoring the Circuit Court order and the contract to repay the fine ordered without a motion from the government that the forfeited property to be used towards paying Flores-Rivera’s fine.

Finally in 2009 the Federal Public Defender is appointed to represent Flores-Rivera.

So what does the First Circuit do when it gets the case back in 2010. Does it order immediate payment including interest and rent on the vehicle for the period that the government used the vehicle? No, while admitting that “further delay is unacceptable,” it ordered that “the district court should promptly conduct a hearing, follow the applicable statutory procedures, and otherwise provide Flores with the long-delayed process to which he is entitled.” It sounds like its back at square one and another twenty years of litigation is to follow.

The State of New York Court of Appeals strictly limited “all persons-present” warrants in People v. Mothersell. All persons-present warrants are used in New York to search individuals present at the scene of a search being conducted pursuant to a search warrant.

The search warrant authorizes the search of a particular building and allows the searching agency to search all people present at the time of the search. The police used an informant to make two controlled buys from a residence. In one case the informant bought from “Tom” and in the other case from an unnamed man. Then the police got a search warrant for the residence and all persons present at the time of the search. The affidavit said that it was likely that all people in the residence were involved in drug transactions.

While the Court of Appeals said that in some circumstances such a warrant might be good, the affidavit in support of such a warrant would have to provide probable cause to believe that each person in the house would be in possession of contraband and that was not done here. Factors that might lead to a legitimate all persons-present warrant would include “the nature of the illegal activity believed to be conducted at the location, the number and behavior of the persons present at the time of day or night when the sought warrant was proposed to be executed, and whether persons unconnected with the illicit activity had been observed at the premises.” Here the warrant was insufficiently detailed to provide probable cause that each person in the residence was in possession of narcotics. It only said that two sales had been made at the residence. It did not indicate who else might be presence or how the building was used. The mere fact that the affiant did not know the names of the narcotics traffickers did not provide probable cause to search each person in the building. In some cases the building might be used as a shooting gallery or as a warehouse for keeping drugs. In those cases an all persons-present warrant may be acceptable. But here there was no evidence of that.

Not only was Mothersell searched despite the fact that the affidavit provided no factual reason to believe that there was probable cause to search him but he was strip searched and narcotics were found in his anus. The Court found that a strip search was particularly invasive and in order to perform one there must be not only probable cause to search but probable cause to believe that he was secreting contraband under his clothes. There was no evidence of that in this case. In fact one of the officers testified that as a matter of course in serving all persons-present warrants those present were strip searched regardless of whether probable cause existed to believe that contraband could be found under their clothes.

A twelve year old boy will be tried in adult court for the murder of his father’s girlfriend, according to to a Pennsylvania judge. He is facing life in prison if convicted.

Jordan Brown, who was eleven at the time is accused of shooting his father’s pregnant girlfriend in the head while she was sleeping. Allegedly he approached Kenzie Marie Houk with his loaded gun and shot her in the head.

After a hearing Lawrence County Judge Dominick Motto refused to send the case to Juvenile Court. He said “This offense was an execution-style killing of a defenseless pregnant young mother. A more horrific crime is difficult to imagine,”

At the hearing there was evidence that Brown wrapped the gun in a blanket. After shooting Houk he went to school getting rid of the empty shells on the way. Furthermore the evidence shows that he continues to deny shooting Houk despite the facts that forensic tests show that she was shot with Brown’s 20 gauge juvenile model shotgun.

Assuming that he did kill Houk, the fact that he does not show any remorse indicates to me that he is not mature enough to be tried in adult court. He obviously did not understand the severity of his actions.

Under Pennsylvania law the burden is on children over ten years old to prove that they can be rehabilitated in the juvenile system. But Judge Motto found that Brown could not be rehabilitated before he turns 21. Talking about rehabilitation prior to trial appears to assume Brown’s guilt. Unless and until Brown is convicted he is assumed to be innocent. Therefore it seems to violate the Constitutional requirement that he is being asked to proved that he can be rehabilitated prior to finding that he is guilty.

Questions must be asked about why the child had a loaded gun. Even if his father was teaching him how to hunt, why was he allowed to have a loaded gun in the house and why did the gun not have a trigger lock on it?

Running from the police may never be a very bright thing to do but Ricky Flowers brought it to a new low. He didn’t have a driver’s license so when the Garfield Heights, Ohio police attempted to pull him over for a traffic violation he led them on a 90 mile an hour chase into nearby Cleveland.

Eventually he was forced to stop. Flowers and his three passenger ran. Two of them showing only moderate stupidity ran down a dead end street and were caught. The third passenger tried to climb a fence. He couldn’t get over the fence and he was arrested up against the fence. Flowers made it over the fence and into prison. The fence surrounded a woman pre-release prison. A siren went off and he was arrested in the prison–not too bright.

The United States Supreme Court ruled yesterday in Padilla v. Kentucky that defense counsel in a criminal case is incompetent if he/she does not inform a defendant prior to entering into a plea agreement of the immigration consequences facing the defendant.

Jose Padilla, a citizen of Honduras who lived in this country for forty years was told by his counsel prior to his entering a guilty plea to trafficking in narcotics that he would not be deported. The advice was clearly wrong. The law mandate deportation for anyone convicted of trafficking.

The Court, using the Stickland standard, required that an attorney’s performance fall within the expected range of attorneys in similar cases and that the defendant not be prejudiced by the attorney’s performance.

But some courts, including the Supreme Court of Kentucky, have held that attorneys have no duty to inform the client of collateral effects of the plea. But the Supreme Court in this case, without directly deciding what collateral affects defense counsel must inform their clients of decided that in this case the odds on deportation were so great that not informing the defendant of the correct immigration consequences in effect left the client not knowing a direct effect of the plea.

While admitting that in some cases the immigration effects of a guilty plea may not be clear enough for a non-expert in immigration law to give competent advice the court said that in this case the defense counsel gave incompetent assistance by not accurately advising Padilla of the immigration consequences.

As Justice Alito pointed out in a concurring opinion the decision will lead to further litigation as to what cases will the immigration effects be too complicated to assume that a criminal defense attorney will be able to competently advise his/her client on the consequence. What about other collateral consequences, such as licensing issues, civil suits, tax issues, civil commitments, etc.

But there is no question that the better informed a defendant is about all of the consequences of a plea bargain, the better she/he can decide whether to accept the bargain. All too often clients are presented with a proposed bargain and given only a few minutes or less to decide whether or not to accept it. In these cases they do not have time to consider all of the possible ramifications of the agreement and often regret their decision with no ability to retract the plea.