Glen Marcus was convicted of engaging in unlawful forced labor and sex trafficking between January 1999 and October 2001. The problem is the statute making forced labor and sex trafficking illegal was not enacted until 2000. Therefore much of the evidence at trial concerned acts that were legal at the time they were committed.

Of course someone cannot be convicted for committing a legal act. The Constitution and basic rules of fairness prohibit ex post facto laws which penalize events that happened prior to the passage of a statute making an event illegal. For some reason neither defense counsel nor the judge realized that some of the acts were performed prior to the effective date of the statute. Therefore no instruction was given to the jury informing them of the effective date of the statute.

Marcus’ appellate attorney caught the error and raised the issue before the Second Circuit Court of Appeals. The problem is that generally you cannot raise an issue that was not raised in the trial court. An exception occurs however for “plain error.” The issue raised before the Second Circuit and before the Supreme Court is how to define “plain error.”

The Second Circuit ruled “if it was possible for the jury—wh[ich] had not been given instructions regarding the date of enactment—to convict exclusively on [the basis of] pre-enactment conduct, then the conviction constitutes a violation” of the Ex Post Facto Clause and must be reversed.

The Supreme Court, while not ruling on the issue of whether “plain error” occurred, returned the case to the Second Circuit finding that its definition of “plain error” was wrong. Citing Puckett v. United States the Supreme Court ruled that a five part test exists to find “plain error:”

(1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

The Second Circuit’s “possibility test” fails to meet the third and fourth element. A mere possibility neither affects the outcome of the trial or the fairness of the trial. therefore the Supreme Court returned the case to the Second Circuit for further consideration.

Justice Stevens dissented. He pointed out that Rule 52(b) of the Federal Rules of Criminal Procedure which mandates the use of the “plain error” test merely states:

A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

Therefore Justice Stevens believes that the only issue should be whether the use of evidence of events that occurred before the law was enacted and the failure to inform the jury of such violated a substantial right of Glenn Markus and he would reverse the conviction. It makes sense–doesn’t it.

Martin O’Brien and Arthur Burgess attempted an armed robbery of an armored vehicle. The were arrested and charged in a multi-count indictment with possession of a gun during a violent crime in Count III which carries a minimum sentence of five years and in Count IV with possession of a machine gun during a crime of violence which carries a minimum sentence of 30 years.

Both are violations of 18 USC Section 924(c). The government was not sure it could prove count IV beyond a reasonable doubt so they dismissed the count and tried to come in through the back door. At sentencing they tried to use it as a sentencing enhancement. This way they did not have to present the issue to a jury and only had to prove it by a preponderance of the evidence. But the United States Supreme Court said no. It said that possession of a machine gun is an element of the offense and had to be tried to a jury and proved by a beyond a reasonable doubt standard.

The Court used a five step test to determine whether it is a element of the offense or a sentencing enhancement: (1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history.” The first factor by itself is insufficient and the Supreme Court found nothing overwhelming in the statute which reads:

“(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

“(B) If the firearm possessed by a person convicted of a violation of this subsection–

“(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

“(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.” 18 U. S. C. §924(c)(1)

It is true that the section dealing with the machine gun is in a different section from the other elements when when considered against the other factor this is insufficient.

As to the second factor characteristics related to the offense are generally elements while characteristics related to the defendant are often sentencing factor. The nature of the gun refers to an offense characteristic.

As to the third factor, treating the nature of the weapon as a sentencing factor may create a problem since the jury may have to decide which weapon the defendant used and the judge not knowing what the jury decided may have to decide whether the weapon was a machine gun.

As to the severity of the offense a thirty year minimum as contrasted to a five year minimum points to it being an element, not a sentencing factor.

As to the last factor legislative history on the issue is practically nil and doesn’t one way or the other. Considering the factors as a whole the Supreme Court found that the nature of the weapon is an element of the offense.

The Supreme Court, yesterday, reversed the denial of a writ of habeas corpus by the Eleventh Circuit Court of Appeals on the grounds that the Circuit Court failed to consider all possible exceptions to the rule that an appellate court accepts the facts as found by the trial court. In this case, which predated the Antiterrorism and Effective Death Penalty Act of 1996, the appellate court adopted the factual findings of the lower court. While generally appellate courts must accept the facts as found by the trial court 28 USCA 2254(d) names eight exceptions to the rule:

“(1) that the merits of the factual dispute were not resolved in the State court hearing;

“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

“(3) that the material facts were not adequately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

“(7) that the applicant was otherwise denied due process of law in the State court proceeding;

“(8) or unless … the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record .” §2254(d) (emphasis added).

Jefferson was charged with murder of a co-worker on a fishing trip.

As a child, Lawrence Joseph Jefferson suffered major head damage when he was run over by a car. While it is disputed, his trial attorney claimed that an expert told him that it was not necessary to investigate the injury prior to trial. Only minimal evidence was introduced about the injury either at trial or at the sentencing hearing. The habeas alleges that trial counsel was incompetent for not fully investigating the effect of the injury on Jefferson’s behavior. Furthermore in considering the habeas the state court considered only whether or not Section 2254(d)(8) (see above) applied. It found that the factual determination was fairly supported by the record and therefore it denied the habeas.

But there was another issue the court did not consider. After the state court hearing on the habeas the trial court had an ex parte meeting with the prosecutor and asked the prosecutor to draft the decision. Not only was Jefferson not told about the ex parte meeting but his attorneys were neither given the chance to draft an order or to review the prosecutor’s before it was accepted in toto. Thus the state court did not consider whether the trial court may have violated Section 2254(d)(7) and denied Jefferson due process. The Supreme Court vacated the Circuit Court’s decision and remanded the case for further consideration.

Secure Communities is a Department of Homeland Security (DHS) program to deport felons who have either been convicted of serious felonies in the past or are currently accused of committing such. It operates through the use of biometric evidence, primarily booking fingerprints, which are immediately transmitted to the Integrated Automatic Fingerprint Identification System (IAFIS) of the FBI’s Criminal Justice Information Services (CJIS) Division and the Automated Biometric Identification System (IDENT) of the Department of Homeland Security’s US-VISIT Program.

Within hours of booking DHS can order the local sheriff’s to put a hold on the person for transfer to an immigration facility. Thus even if the District Attorney decides not to charge the individual or if the only charges pressed are misdemeanors or infractions the individual could be deported. DHS says that only felons will be targeted but the hold may be placed before the person is charged.

San Francisco Sheriff Michael Hennessey last week asked California Attorney General Jerry Brown to exclude San Francisco from Secure Communities even though that will mean a loss of Federal Funds. He pointed out that the programs is in direct conflict with San Francisco’s Sanctuary City policy under which only those accused of felonies are reported to Federal Authorities. Under Secure Communities all people who are booked will be automatically reported.

Last year the San Francisco Sheriff’s Department reported 2000 aliens to DHS and DHS picked up 1,162 of them. Hennessey says the number will dramatically increase under Secure Communities. Although DHS claims that they will target felons, Hennessey claims that among those that will be reported are those charged with such petty crimes as selling from an ice cream cart without a permit. DHS says they do not have the budget to go after those accused of petty crimes but Congress seems willing to increase DHS’s budget in light of Arizona’s move to criminalize illegal aliens.

One problem with Secure Communities is that it inhibits immigrants from calling the police for help. An immigrant is less likely, for example to report domestic violence, if he/she is afraid that their spouse or significant other will be finger printed and deported shortly after being arrested. Immigrants are less likely to report the gang activities of their neighbor’s children if they are afraid the child will be deported. In the end it may make us less secure and crime less likely to be reported.

Following up on the recent release of statistics showing that the number of African Americans and Latinos stopped and searched by New York City police vastly exceeds their percentage of the population, the New York Civil Liberties Union filed suit against the city claiming that under state law the names and other identifying information regarding those searched but for whom charges are later dismissed must be purged from the records. In the first three months of this year 9% of those searched by New York police officers were white, 33% were Hispanic and 52% percent were black.

But ironically even if the suit is won, the much larger group of people who are searched but never charged will remain in the database. In 2009 police reported 575,000 people were stopped and frisked. Since 2004 the police admit to stopping and frisking three million people. Over eighty per cent of these were either African American or Hispanic. But only six per cent of these people are charged. The percentage that the suit affects would be considerably less than six per cent of those stopped and frisked.

Congress passed a bill authorizing the Federal government to petition the courts to institutionalize an offender beyond the time of his/her maximum sentence if that person either committed or attempted to commit an act of sexual violence or child molestation and the offender is a danger to society.

Four Florida inmates challenged their commitments under 18 U. S. C. §4248 in United States v, Comstock on the basis that the Constitution does not grant the Federal government authority to institutionalize them beyond their maximum prison commitment. Article I of the Constitution grants Congress specific limited powers. The Tenth Amendment states that all powers not granted to the Federal government are reserved for the states.

Despite the defendants arguing that Congress was without authority to commit individuals after their sentence was completed, the Court ruled that the legislation was authorized by the Necessary and Proper Clause, under which Congress can pass any law necessary and proper to the carrying out the duties enumerated in Article I. For example, one of the enumerated duties authorizes a postal service. The building of post offices is a necessary and proper tool to establishing a postal service.

The court evaluated five factors in determining that the post-prison commitment of sexually violent inmates is necessary and proper means to carry out its duty to provide mental health care for Federal prisoners. The factors are “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” The Court ruled that the Necessary and Proper Clause allows Congress to pass legislation that is convenient, useful or conducive to carrying out one of its assigned duties. The Court found that while it is not independently proof of constitutionality the government has a long history of legislating prison mental health issues. Congress reasonably enacted the legislation to protect people who lived near Federal prisons from sexual violence by released inmates. The statute allows the Federal government to institutionalize those who would otherwise be released only after the states in which they were arrested and in which they live refuse to take custody of a dangerous inmate. Finally the court found that the post-prison institutionalization of sexually dangerous inmates was not too attenuated from Article I duties of Congress.

Justice Clarence Thomas dissented. He points to the pivotal 1819 case, McCulloch v. Maryland, Chief Justice Marshall wrote:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Thus to be constitutional it must

satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”–that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.

The only crimes the constitution specifically authorizes the Federal government to prosecute are counterfeiting, treason, piracy, crimes committed on the high seas and those against the Law of Nations. No one today would limit the Federal government to prosecuting those crimes. Certainly any number of crimes can be prosecuted under the Necessary and Proper Clause. But it is time to reconsider some of the crimes prosecuted by the Federal government. For example, is it really necessary to have the federal government prosecute drug, sex, and internet crimes. The basic police duties of government should be left to the state governments.

The Supreme Court, yesterday, banned the use of life without parole (LWOP) sentences for juveniles convicted of crimes other than homicide. In Graham v. Florida it reversed the life without parole sentence of a Florida teenager who violated his probation for a home invasion robbery by committing an armed robbery.

The Court found that sentencing a juvenile to life in prison without parole for a crime other than homicide violated the Eighth Amendment’s ban of cruel and unusual punishment.

The court found that juveniles are less culpable because they have not reached full maturity. Because juveniles continue to change it is difficult if not impossible to determine whether they will become good citizens as they grow older or whether they are evil people who need to be kept behind bars for their entire life to protect society.

Courts generally look at two factors in determining Eighth Amendment violations. First they look at whether the sentence is disproportionate to the crime. Second they consider whether the crime is part of a category of crimes that society recognizes as no deserving of the severe sentence. In this case the United States is the only nation that imposes life without parole sentences on juveniles. While 37 states, the District of Columbia, and the Federal government allow LWOP sentences for juveniles only eleven states and the Federal government have imposed such. There are currently 129 people in prisons sentenced to life without parole for juvenile crimes other than homicide. Seventy-seven of these have been sentenced in Florida. Considering the large number of juveniles convicted of serious felonies very few outside of Florida have been sentenced to life without parole. The Court considered this in determining society’s general opposition to such sentences.

Furthermore the Court found that LWOP sentences for juveniles charged with crimes other than homicide is not justified by any penological justification. The court found that while retribution is a genuine justification it is only valid if it is relative to the degree of culpability and since juveniles, due to a lack of maturity are less culpable than adults life without parole for crimes other than homicide do not fulfill a valid need for retribution. A second penological goal is deterrence but since the juvenile has not reached his/her full level of maturity it is impossible to say that LWOP acts as a deterrence. A third penolgical goal is incapacitation. But again it is not mandatory for a juvenile who may mature as time goes on. The fourth penological goal is rehabilitation but LWOP rules out any chance of rehabilitation.

The ban on LWOP sentences for juveniles convicted of crimes other than homicide does not guarantee that all juveniles will be released. All it does is guarantee that they will have a chance to prove their maturity and be released. They will still be sentenced to life in prison and it will be up to the state’s parole system to determine whether or not to release them.

There has been considerable talk lately about Congress attempting to widen the public safety exception to the Miranda Rule. Attorney General Eric Holder supported such a move in a interview on Meet the Press last week.

The public safety exception was first enunciated by the Supreme Court in New York v. Quarles. In Quarles a woman approached a police officer and told him that she had been raped at gunpoint. Furthermore, she told him that the rapist was in a particular grocery store. The officer went to the store and together with other officers found the suspect, searched him and handcuffed him. They found an empty holster on him. They asked him where the gun was. He said “over there.” then the officers Mirandized him. The lower courts excluded the statement ‘over there” from the trial saying that it was obtained in violation of Miranda.. But the Supreme Court found that the overwhelming need to protect the public safety and to find the gun before someone else got hurt was an except to the Miranda rule.

Now the administration is considering asking Congress to change the public safety exception to allow questioning of suspected terrorist prior to giving the Miranda warnings. Let’s be clear. No law requires the Miranda warnings to be given. The law only prohibits non-Mirandized statements given while a suspect is in custody in response to police interrogation from being used in court. Police have every right to interrogate a suspected terrorist to obtain information about other terrorists or terrorist acts without giving Miranda warnings as long as the statements and and evidence obtained as a result of getting the statement is not used to convict the alleged terrorist.

Furthermore under the public safety exception, there is little doubt that law enforcement officers, if they find a person with a bomb in Time Square can question the man about the existence of other bombs in Time Square or elsewhere without worrying whether or not the statement will be admissible. The statement would come in under the public safety exception.

Also any attempt by Congress to expand the public safety exception would be subject to Supreme Court review. As Chief Justice Rehnquist wrote for the court in Dickerson v. United States: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

It is not clear how Holder wants to amend the Miranda rule. But constitutional rights are guaranteed to all citizens regardless of what crime they may be charged with. It is unlikely, therefore, that the Supreme Court would agree to an exception the Miranda rule for those charged with terrorist offenses.

The New York Times has released some startling new statistics.

African Americans and Latinos were nine times more likely to be stopped and frisked in New York City than Caucasians in 2009. Police stopped 209,000 Black and Latinos in 2009 while they only stopped 53,000 Caucasians. In Ohio v. Terry the Supreme Court found it permissible to stop an individual if a police office has a reasonable suspicion that the person was involved in a crime. Furthermore the Supreme Court ruled that the officer could frisk the person if the officer has a reasonable suspicion that the person might be carrying a weapon. But in the New York City searches, less than two tenths of a per cent of the frisks yielded guns. Furthermore force was only used in 19 per cent of the stops of Caucasians while it was used in 25 per cent of the stops of African Americans and 27 per cent of the stops of Latinos.

But once the stop occurred arrest rates were similar. Slightly over six per cent of the Caucasians who were stopped were arrested and slightly less than six per cent of African American who were stopped were arrested. The primary reason given for stopping individuals were furtive movement which is so vague that anyone can be stopped for making a ‘furtive movement.” Only fifteen percent of those stopped are alleged to look like a person wanted for committing a crime.

Sorry, I’ve had problems with the internet the past few days. I hope they’re over and the posts will be as normal.

Thanks for your patience.