Cesar Julio Salazar-Mojica was convicted of a felony assault with a deadly weapon in California in 1980. He was placed on probation. The probation was revoked in 1982 and he was sent to prison. When he was released from prison he was deported to Mexico.

On June 5, 2008 ¹he was arrested near the border and charged with returning to the United States after being deported in violation of 8 U.S.C. § 1326. While awaiting trial on the Federal charge, Salazar-Mojica applied to the state court to reduce his felony charge to a misdemeanor. The application was granted pursuant to California Penal Code Section 17(b). Never the less the Federal Court in determining the guidelines on the Section 1326 charge gave him a 16 level enhancement for a prior felony conviction involving violence. ²

Salazar-Mojica’s guideline range was for between 84 and 105 months. He was sentenced to 66 months.

The Ninth Circuit joined other circuits in finding that the reduction of a felony to a misdemeanor does not affect the enhancement. The crucial time according to the appellate court is the time of the deportation. If it is a felony at the time of the deportation it remains a felony for the purposes of the enhancement.

Lindsay Lohan is in a difficult position. She is facing both a hearing on whether she violated her probation and a felony trial for grand theft. She is on misdemeanor probation for a third DUI. She could get up to a year on the probation violation since it is a third DUI with credit for the time she has done on prior violations and she could get up to three years in prison for the felony. More likely she will be placed on felony probation but she could do up to a year in jail as a condition of the probation.

As to the felony she is entitled to a trial where in order to convict her twelve jurors will have to find that beyond a reasonable doubt she is guilty of the grand theft. But on the probation hearing she is not entitled to a trial. She gets a hearing before a judge who can send her to jail if he/she finds by a preponderance of the evidence that she violated her probation.

Lohan has been offered a plea bargain which presumably ¹ will cover both the probation violation and the grand theft charge.

If she does not accept the plea bargain she is facing a hearing. The hearing will serve as both a preliminary examination in the felony case and a probation violation in the DUI. During the hearing the judge will be put to the difficult task of applying two different standards of proof. As to the probation hearing he/she will use a preponderance of the evidence standard. That means that to find her in violation of her probation the judge must find that there is more evidence that she violated her probation than there is evidence that she did not. But as to the felony the judge need only find that there is probable cause that she committed the felony to hold her for trial. ² Probable cause means that there is reason to believe that a crime was committed and that the defendant is the one that committed the crime. It is a much lower standard than preponderance of the evidence.

Furthermore the probation violation hearing and the preliminary examination have different evidentiary rules. Hearsay is admissible in the preliminary examination but not in the probation violation hearing. Thus a judge must keep track of what evidence comes in for what purpose.

The better practice according to the California Supreme Court is to have separate hearings for the two cases but at least according to the Associated Press article a single hearing will be held.

To make matters worse for Lohan, she could be sentenced immediately after the hearing to a jail term on the probation violation but the felony trial, even if she does not waive time could be ten weeks later. ³Thus she could be in jail prior to her trial and if she is found guilty at trial she could be sentenced to a jail period consecutive to the time she is doing on the probation violation. Of course by accepting a plea bargain she will be sentenced to only one period in jail for both the violation and the felony. She will not have to worry about a consecutive sentence. However she will lose her right to a trial.

A Federal Court will not review a state denial of a writ of habeas corpus if the state ruling is based upon an independent state ground that is independent of the federal question and adequate to support the judgment.To be considered an adequate state ground the rule must be “firmly established and regularly followed.”

Walker, Warden et al v. Martin decided yesterday by the Supreme Court builds upon Beard v. Kindler, decided last year. The Supreme Court held in Beard that a rule can be “firmly established and regularly followed” even if it gives judges a certain amount of discretion in applying the rule.

The question facing the court in Walker was whether the California rule defining timeliness for filing a writ of habeas corpus qualifies as “firmly established and regularly followed.” Unlike most other jurisdictions, California does not set a specific time period in which writs of habeas corpus must be filed in non-capital cases. Rather California requires that they be filed “as promptly as the circumstances allow.” Furthermore, the California Supreme Court sometimes denies a writ on its merits even if it is untimely. However, as the Supreme Court pointed out in Kindler the mere fact that a court has discretion does not mean that the rule is not regularly followed. The rule can regularly give the court discretion. And that is what the Supreme Court found in Walker. It found that the California courts regularly followed the rule giving the court discretion and there was no claim that the discretion was used unwisely in Walker.

In Walker the defendant raised the issue of incompetence of counsel only in its second state writ which occurred five years after the defendant had been found guilty. The state court found that under these conditions and in face of the fact that the defendant did not provide any reason for its late filing that the writ was untimely. The District Court agreed but the Ninth Circuit reversed the District Court. For the fourth time this year the Supreme Court reversed a Ninth Circuit grant of habeas corpus holding that the California ruled provided an unreviewable independent ground. It reinstated the state court decision finding the petition for a writ of habeas corpus untimely.

Walnut Creek, California authorities announced that former police officer, Shawn Wallace was arrested on suspicion of unlawful sexual intercourse with an underage woman and dissuading a witness. He has been released from custody and he has not been charged with any crimes.

While on duty he investigated the sexual assault of a seventeen year old girl. The victim ended up moving into Wallace’s house and, according to his lawyer, Michael Rains, they had a sexual relationship.

If this is true, Wallace’s behavior is inexcusable. As an authority figure, old enough to be the young lady’s father, he took advantage of her at an extremely fragile period in her life after she was sexually assaulted. It may be partially explained but not excused by the fact that Wallace recently went through a divorce.

The woman, now 18, continues to live in Wallace’s house, though the sexual relationship has apparently ended. According to an article in the local WalnutCreekPatch the young lady does not want Wallace prosecuted. While Wallace’s behavior was wrong, to put it mildly, it is doubtful that prosecution is the proper action to take. All too often in such cases the victim is hurt by the defendant’s prosecution. She is likely to feel guilty and blame herself, perhaps for the rest of her life.

Also inexcusable is his attorney’s comments. According to the Patch, Rains said Wallace’s friendship with the girl benefitted her. “She and her family feel that without his intervention in her life she would be a mess today, if not dead.” This attempt to excuse Wallace’s conduct only shows a lack of insight on the part of Rains, Wallace, and the young lady’s family. It makes it look like the 45 year old Wallace, was having sex with the young lady for her own good. No good can come out of this situation. Wallace took advantage of the young lady for his own benefit. He is a police officer and old enough to be her father. It is extremely unlikely that she could use her own free will to decide to have sex with him.. She must have been bowing to authority and not performing a voluntary act.

Former Luzerne County Pennsylvania Common Pleas Court Judge Mark A. Ciavarella Jr. was found guilty of racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges in what has become known as the“Kids for Cash Scandal.” As a juvenile court judge, it was alleged that Ciavarella received money from a for profit company in exchange for sending children to the company’s private jail. Many of the children were sent to the facility for lengthy periods of time while being denied various rights guaranteed by the constitution. Often Ciavarella denied the children their right to counsel before sending them to the private jail.

It was a mixed verdict with Ciavarella being cleared of extortion, bribery and honest services wire fraud charges. Overall he was convicted of 12 of the 39 counts, including most of the serious allegations, in the indictment. But it is not exactly clear what the jury believed. For example it convicted him of racketeering and honest services fraud but it found him not guilty of bribery. Honest services fraud is a rather complicated crime. It is defined in 18 U.S.C. §1346 as a “scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.” The Supreme Court has limited it to cases which involve a “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who ha[s] not been deceived”. In the case of Ciavarella he received money from the private corporation to deprive the Common Pleas Court of his “honest services.”

Racketeering is a form of conspiracy under which money is obtained illegally often by extortion. The jury found that Ciavarella illicitly obtained $997,000 in kickbacks from the builder of the PA Child Care and Western PA Child Care detention centers.

While this trial did not concentrate upon the juveniles’ denial of constitutional rights, the Pennsylvania Supreme Court reversed 4000 juvenile convictions in Ciavarella’s court.

Furthermore there remains a pending civil suits by thousands of juveniles ¹ who appeared before Ciavarella.

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota.

Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded and he was resentenced. When he was resentenced the court enhanced his sentence for using a dangerous weapon and in the current appeal he challenged the use of the enhancement.

As a result of the enhancement he was sentenced to 352 months. Sometimes it seems like it’s not worth appealing but the appellate court ruled that the trial court was within its discretion to add the enhancement on resentencing even though it had not been originally used.

As to Flint Thomas Red Feather the trial court, in applying the guidelines, used a guideline for one who conspires to sell between five and fifteen kilograms of cocaines and sentenced him to 151 months. Red Feather argued that he only sold 3 kilograms 14 ounces before he moved off the reservation and withdrew from the conspiracy. But the appellate court ruled that the question was not how much cocaine Red Feather sold but rather how much it was foreseeable that he would sell during the pendency of the conspiracy. Looking at it this way the appellate court agreed with the trial court that he should be sentenced as if he had sold five kilograms.

The Fourth Circuit Court of Appeals denied Rae Carruth’s petition for a writ of habeas corpus following the conviction of the former Carolina Panther football star for conspiracy to commit the murder of his pregnant girlfriend, use of an instrument to destroy their unborn child, and discharge of a firearm into occupied property.

Carruth went to a movie with Cherica Adams, who was eight months pregnant with their son. After the movie they went to his house to pick up her car and they drove to her house. While at his house, Carruth called his friend Michael Kennedy. Adams followed Carruth to her house. Kennedy with two passengers followed Adams. As they approached her house, Carruth slowed down. Kennedy came up alongside Adams and a passenger in his car, Van Brett Watkins shot her four times. Carruth and Kennedy disappeared. Adams called 911 and was taken to the hospital where she held on to life for another month. The baby was saved but Adams died.

During the trial three problematic pieces of evidence were used by the district attorney: two statements by Adams to a police officers and notes that she wrote to a nurse in the hospital. For the purpose of the appeal the court assumed that the admission of the items were constitutional errors but it determined that there was sufficient evidence corroborating the items and admissible items to convict him without considering the three items.

The primary piece of evidence was the transcript of the 911 call. During the call Adams clearly laid out the events of the evening and they were quite inculpatory. Numerous witnesses testified for both sides with significant cross examination but Carruth’s attorney was unable to make any dent in the facts as stated above. Experts testified about the effect of drugs given to Adams in the hospital. Her cousin and her father testified about statements she made to them. Other witnesses testified that Carruth had a motive to kill Adams. He was angry that she would not have an abortion and he was afraid that child support payments would bankrupt him.

In the end the appellate court found that the erroneously entered evidence did not have a “substantial and injurious effect” upon the verdict and denied the petition for a writ of habeas corpus.

Daniel Szymanski pled guilty in the United States District Court to receiving child pornography. At the time of the plea the judge was hesitant to take the plea because it required a five year minimum sentence and possession of child pornography had no minimum sentence. What the judge, the defense attorney, the defendant and at the time of the plea the United States attorney did not realize is that unlike possession of child pornography, receiving child pornography require knowledge at the time of the receipt that the pornography portrays minors. ¹

Rule 11(b) of the Federal Rules of Criminal procedure requires that the judge when taking a sentence voir dire a defendant to make sure that he/she understand the charges he/she is pleading to. The voir dire must include a discussion of the major elements of the charge. The element of the of the offense requiring knowledge of the age of the child is not in the statute. Rather it was implied by the Supreme Court some years ago. Here it is clear that the Court did not voir dire on whether Szymanski knew at the time that he received the pictures that they were of a minor. In fact he told the probation officer who was writing the probation report after the plea that he did not know the pictures were of a minor until after he received them.

While a minor violation of rule 11(b) may not require a reversal in this case the court determined that the interests of justice required that the conviction be reversed and that the case be remanded to the District Court.

Friday, the Sixth Circuit Court of Appeal upheld the conviction Reginald Ellison, Sr. on various drug charges. The only question on appeal was the sufficiency of the nexus between the residence that was the subject of a search warrant and crime.

Neither a search warrant or the affidavit supporting a search warrant must name an individual suspected of committing a crime. The warrant need only name a place to be searched. The affidavit must show probable cause that evidence of a crime will be found at the place. In order to show probable cause, inter alia, it must show a nexus between the place to be searched and a crime. It is certainly possible that a search warrant is issued and a search is performed where a significant amount of contraband is seized but no one is found in possession of the contraband and no one is arrested.

In Ellison an informant ¹ tells a government agent that he/she saw “Short” ² exit the house, make a sale of drugs to “Red,” and return to the house.

This was an easy case for both the trial court and the Sixth Circuit. Certainly if “Short” came out the residence and returned to the residence after the sale it is likely that more drugs will be found in the residence. It is also likely that the money “Short” received for the sale of the drugs will be found in the residence. This creates a sufficient nexus between the residence and a crime to obtain a search warrant.

Prior to obtaining the search warrant the police determined that the utilities were in Ellison’s name. Presumably once in the residence they found evidence that Ellison was involved in the crime and arrested him. ³