At 13 years old the respondent, in a Supreme Court case, began sexually assaulting a ten year old boy on the Fort Belknap Indian Reservation in Montana. The assaults continued for two years. In 2005 the respondent admitted to juvenile delinquency allegations in Federal Court. He was sentenced to two years of juvenile detention followed by juvenile supervision until his 21st birthday with the first six months of the supervision served in a prerelease center.

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA) which requires sex offenders to register wherever they live, work or go to school. The attorney general determined that SORNA retroactively applied to convictions occurring prior to SORNA’s enactment.

In 2007 the respondent was found to be in violation of his prerelease conditions and he was sentenced to an additional six months and required to register as a sex offender at least until his 21st birthday.

He appealed the registration requirement. By the time the Ninth Circuit ruled on the appeal he was 22 years old. The Ninth Circuit ruled that “that applying SORNA to juvenile delinquents who committed their offenses before SORNA’s passage violates the Ex Post Facto Clause.”

The Supreme Court reversed, finding that at the time the Ninth Circuit ruled, the issue was moot. An issue is moot on appeal unless there is “an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ In most criminal cases at the time of the appeal the defendant is either incarcerated, on parole or on probation–all of which are considered “actual injuries.” In the present case there were two possible injuries. One was the confinement and supervision but that terminated prior to the Ninth Circuit decision and the other was the registration required which terminated at his 21st birthday. ¹ Thus the Supreme Court reversed the Ninth Circuit ruling. The only real effect of the reversal is that the Ninth Circuit decision does not serve as a precedent for future cases. ²

Last year in Melendez-Diaz v. Massachusetts the Supreme Court ruled that the admittance at trial of a lab report without the testimony of its author violated the Sixth Amendment Confrontation Clause. But sometimes saying something once is not enough. In nearly identical facts to Melendez-Diaz the Supreme Court of New Mexico approved the admittance of a blood alcohol test when the New Mexico Court allowed the prosecutor to use the testimony of a chemist other than the one who performed the test but who was familiar with the methods used in the lab to explain the results.

So again in Bullcoming v. New Mexico the United States Supreme Court said that in order to enter into evidence a lab report without the testimony of the chemist who performed the test the chemist must be unavailable and the defense must have had a previous chance to cross examine the chemist.

The members of the first Congress who wrote the Bill of Rights and the states who approved the amendments felt, and for good reason, that the best way to test the validity of a witness was to subject the witness to cross examination. Perhaps if we were doing it today we would subject witnesses to lie detector tests ¹ but they relied upon the right of confrontation and that means the right to cross examine the chemist who did the test–not someone else.

William Freeman entered a “C” plea in Federal Court to possession of crack cocaine. A “C” plea is a guilty plea pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under Rule 11(c)(1)(C) the defendant and the government agree on a particular sentence and once the judge agrees to the plea the judge is required to go along with the stipulated sentence.

The agreement between the parties stated that Freeman would get 106 months and that the figure was based on the Guidelines. When the judge sentenced him to 106 months he stated that it was a Guidelines sentence.

Three years after the sentencing the Sentencing Commission retroactively reduced the Guidelines for crack cocaine in an attempt to reduce the disparity between crack and powder cocaine sentences. Freeman applied for a reduced sentence. The government objected on the grounds that he had stipulated to his sentence.

The Supreme Court ruled that the reduction applied to Freeman because while he stipulated to the sentence the stipulation and the sentence was based on the Guidelines so the retroactive change in the Guidelines apply to him.

While in a few civil cases the Supreme Court has ruled that there is a right to appointed counsel, the general rule is that there is no right to appointed counsel in civil cases, even when a party faces incarceration.

The Supreme Court has ruled that the Sixth Amendment right to counsel only applies to criminal cases, Yet in some civil cases defendants are facing significant jail time. In Turner v. Rogers, decided Monday, the question was whether the Fourteenth Amendment’s Due Process Clause required the appointment of counsel in civil contempt proceedings resulting from the failure of a non-custodial parent to pay child support. One of the differences between civil contempt and criminal law is that in a criminal case a defendant may be incarcerated as a form of punishment. In civil contempt proceedings, incarceration may be ordered but its purpose is to coerce a defendant into complying with a court order. Incarceration is only permitted in a civil contempt proceeding if the defendant willfully refuses to comply with the court order. Thus if a defendant is unable to comply–in this case if the defendant does not have the money to pay the child support–incarceration is not a appropriate remedy. Once the defendant complies, such as by paying the arrears of the child support, he or she is released from custody.

Michael Turner was ordered to pay $51.73 per week to Rebecca Rodgers for support for their child. While he made some payments it was generally to avoid incarceration and he spent several periods in jail. On January 3, 2008 he was held in contempt for being $5,728.76 behind on his payments. Neither Turner pr Rodgers was represented by counsel. At no time was he asked about his finances. Nor was he told that inability to pay the child support was a complete defense. When given a chance to address the court he did not discuss his ability to pay. Rather he discussed his history of drug abuse. The Court held him in contempt and ordered him to do a year in jail without good time or work time. The court allowed him to be released on work furlough but there is no evidence that he had a job. With help from pro bono counsel he appealed.

The court assessed three factors in determining whether there is a due process right to appointed counsel:

(1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an ‘erroneous deprivation’ of that interest withand without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].’

Both the private interest–incarceration versus liberty and the risk of erroneous deprivation of the right are great and favor the appointment of counsel. But the court found countervailing issues. The primary issue during a hearing on civil contempt is the ability to pay and in order to get appointed counsel that decision needs to be decided before the hearing since only the indigent will get appointed counsel. Often the opposing party does not have counsel and the court was afraid that the defendant might have an unfair advantage.

The court held that as long as specific safeguards were present appointed counsel is generally not necessary to meet Due Process requirements. Specifically it held that indigent individuals charged with contempt must either have appointed counsel or “(1) notice to the de-fendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.” Where the opposing party has counsel the alleged contemner is entitled to appointed counsel.

Since Turner had neither appointed counsel or the requirements of due process his finding of contempt is reversed.

Last week in Bond v. United States the Supreme Court held that an individual harmed by a Federal statute may claim that it violates the Tenth Amendment. The Tenth Amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Carol Anne Bond learned that her best friend was about to give birth to Bond’s husband’s child. To put it mildly she got upset. Among other things she placed a caustic substance on areas her friend was likely to touch, causing minor burns to her friend. She was charged in the United States District Court with two counts “of possession or use of any chemical that ‘can cause death, temporary incapacitation or permanent harm to humans or animals’ where not intended for a ‘peaceful purpose.’” The legislation was passed in compliance with the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, a treaty the United States ratified in 1997.

In the District Court and on Appeal Bond claimed that the Constitution does not authorize Congress to pass such legislation and that the Tenth Amendment delegates the right to pass such legislation to the states.

The government ¹ Counsel argued the traditional view that the Tenth Amendment grants certain rights to the states and only the states may challenge legislation on Tenth Amendment grounds.

But the Supreme Court held that the advantages of a Federal system are not limited to the states. Rather the people of the United States gain considerable freedom as a result of the Federal system. The limitation of the peoples’ rights results in “justiciable injury” allowing individuals to object to the violation of the Tenth Amendment which guarantees a Federal system in which both the states and the Federal government have sovereign rights.

The Supreme Court remanded the case with instructions to rule on the merits of the claim. We can expect the government to argue that Congress has the power to pass such legislation. We can expect the government to argue that the legislation is necessary and proper for carrying our the government’s treaty powers.

A thirteen year old North Carolina boy was removed from his classroom by a uniformed officer. He was taken to a room where he was interrogated by a police officer, a school security guard, and an assistant principal. He was not Mirandized. During the interrogation he made statements that incriminated himself in two burglaries.

An unmirandized statement cannot be used against a defendant if the statement was made while the defendant was being interrogated while the defendant is in custody. The question in juvenile court proceedings and on appeal was whether the teenager was in custody at the time of the interrogation . The defendant does not actually have to be in custody. It is sufficient if the defendant is in a custody-like situation. The juvenile court ruled that he was not in custody. On appeal his attorneys argued that in determining whether the teenager was in custody the juvenile court should have taken into consideration that the teenager was a juvenile. The state argued that the same definition of custody should be used for all regardless of the age of the defendant.

The Supreme Court held last week that the juvenile court should have taken into consideration the defendant’s age. The Supreme Court ruled that a minor’s age must be taken into consideration due to the increased pressure juveniles feel to answer questions posed by law enforcement officials.

Justice Alito dissented saying that the purpose of Miranda was to create a uniform rule. Necessarily when you create a uniform rule it is both over inclusive and under inclusive. Miranda covers some people who do not need the warnings and other people who need stronger warnings. By giving children more protection you are destroying the uniformity of Miranda and opening up the door to more exceptions. However, the Court ruled that it was more important to prevent police from circumventing Miranda than providing one rule for both adults and juveniles.

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program).

On appeal the issue was whether the trial court had the authority to lengthen the sentence based upon the need for rehabilitation.

The governing law is the Sentencing Reform Act of 1984. In determining a sentence the courts are mandated to consider four factors:

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

But the courts are also mandated to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹ While the term “recognize” may be rather weak the Supreme Court found that it was mandatory.

But perhaps the best argument against extending sentences to accommodate rehabilitation is the story of Alejandra Tapia, herself. Despite the judge’s giving her an extended sentence ² in order that she could complete the RDAP program during her interview with BOP staff after she was sentenced she stated that she did not want to enter the RDAP program and she was not assigned to the program.

It is certainly possible, as Justice Sotomayor suggested that on resentencing that she will get the same 51 month sentence.

In Davis v. United States the Supreme Court took another blow at the Exclusionary Rule. It ruled that the good faith exception should be applied to situations in which the police rely upon settled law that is later overturned by the Supreme Court.

In 2007 relying upon Eleventh Circuit interpretation of Belton v. New York, Greenville, Alabama police arrested the two people in an automobile, handcuffed them and placed them in a police car. Then they searched the vehicle and found a gun. Willie Gene Davis, the passenger in the car, was then charged with possession of a gun by a convicted felon. The Eleventh Circuit and the Supreme Court agreed that the search was illegal, based on Gant v. Arizona in which the Supreme Court in 2009 held that the search of the interior of an automobile, pursuant to an arrest, can only occur if the passengers are in a position where they can reach items in the car or there is probable cause to believe that contraband can be found in the vehicle.

Since Davis’ conviction was not final when the Supreme Court ruled on Gant, Gant’s finding applied to Davis. But the Supreme Court ruled that just because the finding applied to Davis, the remedy of exclusion does not necessarily apply. The sole purpose of the exclusionary rule is to deter police from performing illegal searches. The deterrent value must be weighed against the societal harm caused by the suppression. In this case the Supreme Court found that there was no deterrent value since the police in searching the vehicle were complying with the then settled law. Therefore while the search was unconstitutional, the remedy is not suppression. The Court did not attempt to define any remedy, although in other cases they have stated that the remedy could be limited to a civil suit.

As the dissent, by Justice Breyer, points out the decision may have serious consequences. While few searches will directly be affected. It is rare for the Supreme Court to reverse prior decisions. But police are generally assume to follow the law or at least to try to follow the law. It is rare that they intentionally violate the Fourth Amendment. There is language in Justice Alito’s majority opinion which can be cited to support the refusal to apply the exclusionary rule in any case in which officers are acting in good faith. If officers are acting in good faith then there is little deterrent value in later excluding the fruit of their search.

I have trouble with the view that deterrence is the only reason for the exclusionary rule. An unconstitutional search violates the privacy rights of those who are the subject of the search. This was recognized in Terry when the Supreme Court ruled that a search was any action which violated the privacy rights of an individual when those privacy rights are accepted by society. If one of the purposes of the Fourth Amendment is to protect privacy rights then in order to redress the injury the fruit of the illegal invasion of a person’s privacy should not be entered into evidence against the person at trial.

Julian Tzolov and Eric Butler were charged in a three count indictment in the United States District Court for the Eastern District of New York with security fraud. Both in the trial court and on appeal they challenged venue in the Eastern District of New York. In Count I they were charged with Conspiracy to Commit Securities Fraud. In Count II they were charged with Securities Fraud in relation to the collapse of the auction rate securities (“ARS”) market in 2007. ARS were high grade securities backed by debt obligations, such as student loans, mortgages, municipal bonds, corporate debt and preferred stock issued by closed-end mutual funds. The government guaranteed 98 per cent of the value of student loan backed ARS. Investors had the choice of holding on to the securities until they matured in thirty years or auctioning them off as a short term investment–sometimes as short as seven days. Most chose the short term turn around.

The Sixth Amendment guarantees venue in the district in which the crime occurred. In some cases venue is defined by statute and in other cases venue is defined by the location of acts forming the crime. As to Count II, Security Fraud, 15 U.S.C. §§ 78j(b) and 78ff defines venue as “[a]ny criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred.” The only act alleged to have occurred in the Eastern District of New York was that the defendants flew in and out of Kennedy International Airport. The Second Circuit had no problem finding that merely flying out of Kennedy International Airport was not an act constituting the crime and reversed the securities fraud conviction. On the other hand conspiracy venue exists wherever an overt act in furtherance of the conspiracy occurred. An overt act is any act performed by a conspirator in furtherance of the conspiracy. Flying through Kennedy International was an act in furtherance of the conspiracy and the Second Circuit upheld the conspiracy convictions alleged in Counts I and III.

The Fifth Circuit, in United States v. Portillo-Muniz faced the question, this week, as to whether undocumented aliens are covered by the Second Amendment.

Armando Portillo-Muniz was charged with possession of a firearm by an undocumented individual in violation of 18 U.S.C. § 922(g)(5). He had a .22 caliber handgun in the center console of his vehicle.

The Court found that undocumented aliens are not covered by the Second Amendment. The Second Amendment, like the First Amendment and the Fourth Amendment refers to the rights of the people. The court held that the “people” does not include undocumented aliens. The Court pointed out that the Supreme Court in District of Columbia v. Heller which upheld the Second Amendment right to possess a gun referred to “law-abiding, responsible citizens to use arms in defense of hearth and home.” The majority opinion held that this does not applied to undocumented aliens who committed the misdemeanor of entering the country without papers.

Judge Dennis dissented from the majority’s holding. He pointed out that the Supreme Court in United States v. Verdugo-Urquidez interpreted the word “people” in the Fourth Amendment context as protecting aliens who “have come within the territory of the United States and developed substantial connections with this country.” Portillo-Muniz entered the country voluntarily. He worked steadily and with the exception of entering the country illegally he complied with the country’s laws. He would remand the case with instructions to the trial court to determine if 18 U.S.C. § 922(g)(5) violates the Second Amendment.