Law enforcement officers got an arrest warrant for Jeanine Daley in Brockton, Massachusetts. An informant told them that she recently saw Daley at 63 Menlo Street, a known sober residence and that Daley was hanging out there. The residence was a three story single family house with a number of non-related individuals living in it. Though the warrant had another address on it two officers went to the address where they confronted Jeffrey Cicerano, who’s name was on the lease. When Cicerano denied them entry they threatened to kick down the door. Cicerano opened the door to talk to the officers. The officers rushed past him into the residence. They ordered Cicerano to gather the residents of the house together so that the officers could question them. While Cicerano was gathering everyone together the officers saw James Werra, one of the residents in a room adjoining the foyer. They saw a pocket knife clip attached to one of Werra’s pockets. They removed the knife and pat searched Werra, finding a gun. They arrested him. He challenged the arrest on the basis that the officers neither had probable cause to search him and that their entry into the residence was illegal.

Werra rented the third story from Cicerano but when there was too much partying on the third floor he slept on a couch in the living room. Together with his brother he had moved furniture into the living room.

The government claimed that Werra did not have standing to challenge a search which occurred in the Foyer since he rented the third floor. The question before the First Circuit Court of Appeals was whether the residence was similar to a single family house where each resident has standing since they share the entire house or a multi-resident apartment house where residents have limited standing based upon the area they rent.

The test is that individuals only have standing to challenge searches of areas where they have an expectation of privacy in the area and it is an expectation that society finds acceptable.

The appellate court upheld Werra’s expectation of privacy. First it found no cases where an expectation of privacy was denied to the residents of a single family house. Second, it found that Werra had access to most of the residence including the living room where he would sleep on the couch. The court noted that instead of each individual paying rent to the owner, Cicerano rented the house and some of his friends lived there and helped pay the rent. Overall the court found that the residents acted more like a family than like apartment dwellers. They share space and often used community spaces together as a group. Therefore it found that Werra had the ability to exclude non residents from the building and that society recognized his privacy right in the building.

The Court had little trouble finding the search to be illegal. While there might be some question as to whether the officers had probable cause to believe that Daley lived at the residence it found that they had no evidence that she was at the residence at the time they entered the residence without consent. Since Werra had a privacy interest in the entire house including the foyer and since the search was illegal it reversed the trial court’s denial of his motion to suppress and found him not guilty.

http://twitter.com/TakingTheFifth

Cedric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll were convicted in separate matters of crimes involving crack cocaine. They applied to their respective courts pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction. Under this section inmates may apply for a sentence reduction, if following their sentencing, the United States Sentencing Commission reduces the guidelines for the offense of conviction. In 2007 the Sentencing Commission reduced by two levels the guideline for most crack cocaine offenses, in order to reduced the disparity in the law between sentences for crack cocaine and powder cocaine. The law gives judges the discretion to reduce sentences after reviewing the factors found in 18 U.S.C. § 3553(a). The section provides the factors a judge must consider in sentencing a defendant.

In resentencing the Court must follow a two step process. First it must consider the defendant’s eligibility under the statute and second it must consider the 3553(a) factors. In the cases of Henderson, McClune, and Kirkendall, all of whom received below guidelines sentences the judges on resentencing said that they had reviewed the 3553(a) factors at the time of sentencing and saw no reason to reconsider the sentence. Since each received a below guidelines sentence during the original sentencing the law allows the judge to give a similar reduction based upon the new guidelines but prior to using his/her discretion the Court must reconsider the 3553(a) factors. Therefore The Fifth Circuit remanded the matters to the trial courts for reconsideration of the factors.

Joemon D. Higden was charged with possession of a firearm by a convicted felon. In order to convict him the government had to prove three elements:

(1) the defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year;
(2) the defendant knowingly possessed the firearm; and
(3) the firearm had travelled in interstate commerce.

The prosecution and the defense stipulated to the first and the third elements. Instead of instructing the jury on all three elements and telling them that the parties stipulated to the existence of two of the elements, the judge told the jury that their sole job was to determine whether the prosecution had proved the second element by beyond a reasonable doubt.

The jury hung and a second trial was scheduled. when the judge indicated he planned to follow the same regime in the second trial the U. S. attorney objected and appealed to the Third Circuit Court of Appeals. The Third Circuit ruled that the procedure was wrong since the jury must find the existence of all of the elements. The Court, citing the Sixth Amendment. The Court said that every defendant is entitled to a jury determination of each element. But here the defendant stipulated to two elements and agreed that the jury would only be asked to find that he knowingly possessed the gun. The advantage to the defendant is that the jury would not find out that he is a convicted felon. Protecting Higden’s right to have a jury determine every element of the offense actually hurts him. The trial judge realized that but sadly the appellate court did not.

The Department of Homeland Security learned that there was pornography on computers at Terry Boll’s residence. They got a search warrant. They discover that seven people live in the house and there are ten computers. Eventually they learn that there is child porn on three of the computers and that two of these computers belong to Boll. ¹ This should be the end of the case. There is no way the government is going to be able to prove beyond a reasonable doubt that Boll possessed the pornography. Any criminal defense attorney worth his/her salt can convince a jury that there is a reasonable doubt that someone else put the pornography on the computers even if boll owned them. ² t is unlikely anyone will be charged.

But Boll apparently has not listened to enough police shows on TV. If he had he would have heard the police give the Miranda warning regularly. He seems to know that anything he says can be used against him. ³ Just the same, he answers the agent’s questions:

Agent Scherer: I asked him if he had an explanation about why there was child pornography on his computer.

Government: How did he respond?

Scherer: He replied I guess you caught me.

Government: How did you respond to that?

Scherer: I asked him further questions about how the child pornography got on there, and he stated, well, they are my computers, aren’t they.

Case lost. Not only did Boll lose the case but his attorney had the nerve to argue insufficiency of the evidence on appeal. His answers to the questions gave the government all it needed to convict.

Generally the police won’t ask any questions unless they need the information to charge a crime or get a conviction. Often if you refuse to answer police questions they walk away without even charging you. But by answering the questions you give them the information they need to charge you or to get a conviction.

Zhi Yong Guo, a Chinese citizens was convicted of conspiring to export thermal imaging cameras to China and attempting to export the equipment without a license.

Thermal imaging cameras are a relatively new technological device used for among other things night vision and discovering structural problems in construction. They detect infrared heat and through the use of a computer create an image of the object releasing the heat. Guo is an engineer and owner of a company dedicated to developing uses for
photoelectric technologies in China and he wanted to use the thermal imaging camera in his business but a license is necessary for its export.

On appeal he challenged the validity of the statute on due process grounds. He claimed the statute was too vague. A statute does not meet due process requirement if it is vague. A statute is void for vagueness if it is so unclear that either a person cannot tell what he/she has to do to comply with the statute or law enforcement authorities cannot determine who is violating the statute.

The laws governing which exports need to be licensed are complicated. To determine if a particular device needs a license a person must consider four documents concurrently: the statute, § 1705(a); Executive Order No. 13,222; and two implementing regulations, the Commerce Control List in 15 C.F.R. Part 774 and the Commerce Country Chart in 15 C.F.R. Part 738. When looking at these document it is necessary to consider “(1) connecting the item to the relevant description in the Commerce Control List; (2) identifying the reasons for control applicable to that item; and (3) looking to see whether any of the reasons for control of that item are checked off next to the relevant country on the Commerce Country Chart.” But being complicated does not necessarily make it vague. Reviewing the documents leaves no question that the thermal imaging camera needs an export license.

Furthermore, since the statute requires that a violation of the statute be willful, in order to convict Guo the government had to prove beyond a reasonable doubt that he knew he was violating the statute. If he knew that he was violating the statute he must have understood the statute or at least the requirements of the law. As a result the Ninth Circuit Court of Appeals upheld the conviction.

The Administrative Office of the United States Courts released it’s statistical report for 2009-2010. Overall the number of criminal cases prosecuted in the Federal Courts increased slightly but violent crimes decreased by 7.4 percent.

The report, of course, only covers those prosecuted in Federal Court. The vast majority of people prosecuted for crimes in this country are charged in state courts, although the trend seems to be to increase the number and types of cases prosecuted in the Federal Courts. At one point for example most of the murder cases prosecuted in the Federal Courts either occurred on Federal property, in United States possessions or in the District of Columbia. Now there are a fair number of homicide prosecutions in major drug and terrorism cases. There were 135 homicide cases up from 123 the previous year. The number of terrorism cases increased from 34 to 48. Also increasing were the number of racketeering cases. But the number of robbery, assault, kidnapping, and carjacking cased decreased.

Property crimes, fraud cases, and regulatory offenses increased. The number of criminal immigration offenses increased by 8.7 per cent from 25,804 the previous year to 28,046. The vast majority of the immigration prosecutions occur along the Mexican border.

Decreases occurred in embezzlement cases, forgery and counterfeiting, auto thefts, drug offenses, firearms cases, and sex offenses.

Even though the year 2009-2010 saw a change in administration from the fiscal year 2008-2009, with the possibility of a change in priorities, there seems to have been no change in the types of cases prosecuted.

Marcus Eugene Jacobs plead guilty to possessing stolen mail. As part of the plea agreement he agreed to waive his right to appeal. However an exception was allowed if the court upwardly departed from the guidelines, not requested by the government.

Jacobs’ guidelines were four to ten months. The government recommended seven months. In taking the plea the judge was very careful to make sure that Jacobs understood that he was waiving the right to appeal unless the judge granted an upward departure. But the judge did not discuss the possibility of a variance.

Under the Guidelines a three-part framework exists. First the court

(1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole

A variance is a sentence outside the guideline structure. It is based on 18 U.S.C. § 3553(a). which sets forth a number of characteristics that a court should take into consideration in sentencing. Subdivision 3553(a)(1) states “the nature and circumstances of the offense and the history and characteristics of the defendant;” At sentencing the judge pointed out Jacobs’ significant criminal history. Section 3553(a)(2)(B) lists “to afford adequate deterrence to criminal conduct;” and at sentencing the court pointed out the failures of shorter sentences in the past to deter criminal behavior.

Variances and departures are treated differently. Departures require the court to give prior notice of its intention to depart. Variances do not require notice. ¹

I am willing to bet that prior to signing the plea agreement Jacobs’ attorney discussed with him the nature of an upward departure but did not discuss the possibility of a variance. It would surprize me if Jacobs understood prior to entering into the plea agreement that the judge may vary from the guidelines. In this case the final sentence was 260 per cent of the upper guideline. Assuming, I am correct, the waiver cannot be considered “knowing and voluntary.” In this case a habeas for incompetence of counsel will probably follow.

This Guidelines are very complicated. A lawyer representing a defendant in a Federal case must go over any plea agreement with a fine toothed comb and make sure that the defendant understands every detail of the agreement. In this case the lawyer should have insisted that the agreement preserve the right to appeal if the sentence exceeded the guidelines instead of limiting the right to appeal to cases in which an upward departure was granted.

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) prevents governmental bodies from placing a substantial burden on an individual’s religious activity by its land use policy or in institutions including jails and pretrial detention centers built with Federal money.

The statute reads in pertinent part:

(1) GENERAL RULE- No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Souhair Khatib and her husband plead guilty to misdemeanor welfare fraud in Orange County, California. They were sentenced to three years probation and thirty days of community service. As the period to complete the community service was ending, they went back to court to request an extension of time. For an unstated reason the judge was angry and revoked their probation. They were immediately incarcerated in the Santa Ana Courthouse’s holding facility. Khatib, a practicing Muslim, was forced to remove her hijab. This caused her considerable anxiety, aggravation, and embarrassment. Later in the day the judge called Khatib back into the courtroom, reinstated her probation and extended the time to complete the community service.

She sued in Federal Court. Orange County moved to dismiss the case on the grounds that the holding facility was not an institution under the RLUIPA. The District Court granted the motion and dismissed the case. The three judge appellate panel upheld the dismissal but an en banc decision unanimously reinstated the matter.

The court held that the holding facility was both a pretrial detention center and a jail. Since neither “pretrial detention center” or “jail” is defined in the statute the Court looked to the ordinary and common meanings of the terms. The court held that pretrial detention is simply the “holding of a defendant before trial on criminal charges.” Since the holding facility confines people waiting for court appearance and for trial it meets the definition. The court quotes Webster’s as defining a jail as a “building for the confinement of persons held in lawful custody (as for minor offenses or some future judicial proceeding).” Orange County describes the holding facility as a “secure detention facility . . . for the confinement of persons solely for the purpose of a court appearance.” Using this description there is no question that the facility is a jail.

Finding that the facility is an institution under the RLUIPA the Ninth Circuit remanded the matter to the District Court with orders to reinstate the action. But the next question for the court will be does prohibiting the wearing of the hijab promote a compelling government interest. Among the issues will be does the hijab create a security problem? Can it be used in an assault or a suicide attempt? But we can note that both Federal and state prisons allow women to wear hijabs. The county will argue that the temporary nature confinement in the holding facility creates problems not found in prisons.

A jury in the Northern District of New York found Mark Desnoyers guilty on a number of counts including conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. § 371. The judge overruled the jury and entered a judgment of acquittal on the conspiracy count finding the evidence both factually and legally insufficiency.

Factual insufficiency is fairly easy to understand. If no rational jury could find the defendant guilty based upon the evidence presented factual insufficiency exists. But in this case Desnoyers was charged with conspiracy to commit violations of both the Clean Air Act and mail fraud. With factual innocence, if there is more than one way a defendant can be found guilty, the conviction is upheld if there is any way the jury could have found the defendant guilty. Desnoyers claimed that a jury could not find him guilty of conspiracy to violate the Clean Air Act but he made no claim about mail fraud. Since he could have been convicted of conspiracy to commit mail fraud the appellate court reversed the trial judge’s reversal of the jury finding in regard to factual innocence.

Legal innocence is a more complicated issue. ” A legal challenge . . . questions whether a conviction rests on a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.” Another difference between legal insufficiency and factual insufficiency is that with legal insufficiency if under any theory before the jury the conviction was legally insufficient the conviction must be reversed. Desnoyers was charged with violating the Clean Air Act in regard to eight buildings. He was an asbestos inspector. The Clean Air Act applies to commercial buildings and residential buildings with more than four units. “[A]dditionally, buildings must contain “friable” asbestos and at least 260 linear feet of asbestos on pipes or 160 square feet of asbestos on other facility components in order to be subject to the regulations.” After the trial the government admitted that seven of the eight buildings did not meet the requirements. In the eighth building no one measured the amount of asbestos since it was removed before the government agents arrived. However a number of people referred to the building as “a large job.” In the trade “a large job” means that it is covered by the Clean Air Act. Desnoyers claimed that there was legal insufficiency because their was insufficient evidence to prove a violation of the law in that the amount of asbestos had not been measured. However, the Second Circuit Court of Appeals ruled that Desnoyers failed to understand what was meant by legal insufficiency. Desnoyers explanation does not meet the test of whether a conviction rests on a mistake of law. The question should be whether what Desnoyers did was legal but he was convicted because of a mistake of law. For example if the judge misdirected the jury and he was convicted of an action that was actually legal.. If the judge misdirected the jury then the conviction would rest on a mistake of law and would be reversed for legal insufficiency. But in this case the judge correctly instructed the jury and the jury found Desnoyers to be in violation of the law.

The Second Circuit remanded the case with instructions to reinstate the jury verdict and to sentence Desnoyers, accordingly.