Manhattan Borough President Scott Stringer called for a reduction in the city’s stop and frisk policy. Last year the NYPD made 600,000 stops and this year they will probably make 700,000.

Most of the stops are of young African American and Latino men. Over 85 percent of the stops are of non-whites. A young African American or Latino is nine times more likely to be stopped than a white person. Yet only seven percent of these stops result in arrests.

Under Terry v. Ohio in order to stop someone, an officer must have a reasonable suspicion that the individual is involved in criminal activity and in order to frisk that person the officer must have a reasonable suspicion that the person is carrying a weapon.

But all too often officers, knowing that they do not have a reasonable suspicion that the young person of color is involved in criminal activity of carrying an illegal weapon stops and frisks the individual any way. Sometimes they do it purely for harassment. Other times they do it because they hope to get lucky and find that the person is either on parole or probation with a search clause allowing the officer to search the individual without a reasonable suspicion of wrong doing. Third world members are often so used to being searched that they consent to what would otherwise be an illegal search. If they consent to the search anything found on them (drugs, guns, etc.) can be used against them in court. And sometimes, to be honest, police write false reports, alleging consent when consent was not given. Knowing that a DA, a judge or a jury is more likely to believe a police officer than a minority youth.

One of the problems with the extraordinary number of searches of minority youth is that they and their families learn not to trust the police. As a result they do not cooperate with officers who are investigating crime and do not reports criminal acts to the police.

While most states have laws against secretly taping telephone calls or invading people’s privacy, Illinois’ law is particularly harsh. ¹ It is a felony punishable by up to fifteen years in prison to tape or listen to a conversation without the consent of all parties to the conversation.

Well its not nice to listen in to a conversation but fifteen years?

Michael Allison fixed old cars in his front yard. This violated a city ordinance. He claimed the police were harassing him by seizing the cars and making him pay fines to have them returned. He secretly taped his conversation with the police. He was cited for violating the ordinance. At the arraignment he requested a court reporter. His request was denied. He said he would tape it himself. When he showed up for trial, the judge asked him if he was taping the proceedings. He said yes and the judge had him immediately arrested for violating the privacy law. When the tape was examined there were four conversations with officers on the tape. He was charged with five counts of violating the privacy act. The maximum sentence would have been 75 years.

The court found the act unconstitutional as applied. ² the Court ruled that Allison had a First Amendment right to record the police officers ³ and the court employees. While it may be okay to prohibit the court proceedings ⁴ making it a felony was overreaching.

Brian Charles Olinger plead guilty in 2009 to failure to register as a sex offender. He was sentenced to 15 months in prison and 120 months of supervised release. Among the conditions of his release were that he not view pornography and that he not use a computer with internet access.

While checking on another sex offender who stayed in the same hostel as Olinger resided at probation officers learned that Olinger had access to a computer that might have pornography on it. The officers seized the computer and found approximately 1500 pornographic images, including around 200 images of child pornography on it. The probation officer filed a petition alleging numerous violations of the supervised release. Olinger eventually admitted to three violations: accessing a computer with internet access without the permission of his probation officer, associating with a felon and possession of alcohol. He was sentenced to eighteen months imprisonment and 120 months of supervised release. It was admitted that the government could not prove that he viewed the pornography. At least three other people had access to the computer and while there was evidence pointing to his viewing the pornography it could not be proved.

He appealed on both procedural and substantive grounds. Substantively he argued that the sentence was too long since the sentence was three times the minimum sentence. The court found the violations of his supervised release to be serious and it noted that the computer had pornography on it. The appellate court could not find an abuse of discretion on the part of the District Court judge and did not find a substantive violation. The procedural violations were reviewed for plain error since Olinger did not object at sentencing.

Procedurally Olinger claimed that the court wrongly based its sentence on factors listed in 18 USC § 3553(a)(2)(A) instead of 18 USC § 3553(a)(1). Section 3553(a)(2)(A) deals with the seriousness of the offense while § 3553(a)(1) deals with a breach of trust. However Olinger did not convince the court that the trial court emphasized the seriousness of the offense. One of the factors under § 3553(a)(1) is the nature and circumstances of the offense. This may well be what the court was referring to. As a result the Tenth Circuit Court of Appeals upheld the sentence, finding neither procedural or substantive error.

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Recently we seem to be having a run of double jeopardy cases. I don’t believe we should credit the Roger Clemens case for the run but it did seem to start with him. Today, we look at a rather unique Ninth Circuit case.

Gabriel Alvarez-Moreno was charged in Federal Court with two counts of transporting undocumented immigrants for profit. Shortly before his trial his attorney and the Assistant U. S. Attorney agreed that a jury trial would be waived and a court trial would be held. However, Alvarez-Moreno never signed the necessary documents and the judge did not voir dire him to insure that the waiver was voluntary. He was convicted on both counts.

Shortly after the trial and before sentencing his attorney moved to vacate the sentence based on the failure to comply with the waiver requirements. The government suggested that the motion be considered an untimely motion for a new trial or in the alternative that the judge sua sponte declare a mistrial.Alvarez-Moreno objected to the new trial motion. The court ordered a new trial and Alvarez-Moreno appealed.

The Ninth Circuit Court of Appeals ruled that there are three occasions when a new trial can be ordered without violating the Double Jeopardy Clause. First, when the defendant appeals a conviction and the court orders a new trial. By appealing the defendant waives his/her right against double jeopardy. Second, when a mistrial is declared pursuant to federal Rules of Criminal Procedure Section 26.3. It only operates to permit a second trial if manifest necessity exists and there is no judicial or prosecutorial overreaching aimed at triggering the mistrial. Furthermore the court held that the mistrial must be declared before the verdict is reached. Finally a new trial is permissible if it is as a result for a motion for a new trial is made by the defendant. Again a motion for a new trial acts as a waiver of double jeopardy claims. None of these applied to Alvarez-Moreno and therefore a second trial was prohibited.

José A. García-Ortiz was convicted on three counts: Hobbs Act robbery; aiding and abetting the unlawful carrying and use of a firearm during and in relation to the robbery, and aiding and abetting the death of an accomplice in the commission of an armed robbery. He raised a number of issues on appeal, the most important of which was that convicting him of both using a gun in the commission of an armed robbery and aiding and abetting the death of an accomplice in an armed robbery violated the Fifth Amendment prohibition on double jeopardy.

The unlawful use of a firearm during a robbery is a lesser included offense of using a gun during the commission of an armed robbery resulting in the death of an accomplice. A lesser included offense is one that has all of the elements of the greater offense. All of the elements of using a gun during an armed robbery are also elements of aiding and abetting the death of an accomplice during an armed robbery. Of course the greater offense, aiding and abetting the death of an accomplice during an armed robbery has the additional element of the death of an accomplice. In other words anyone who commits the offense of aiding and abetting the death of an accomplice during an armed robbery necessarily also commits the offense of aiding and abetting the use of a firearm during an armed robbery.

Thus Garcia-Ortiz argued that he was convicted twice for the same offense. The First Circuit Court of Appeals did not rule directly on the double jeopardy issue. But it found that Congress did not intend to punish individuals twice for the same crime. Under Rutledge v. United States there is a presumption that Congress did not intend to punish for convictions on both offenses. Since the Court could find nothing to the contrary in the charged offenses, it remanded the case to the trial court to dismiss the lesser offense.

Jerome Bass was convicted of cocaine related charges in the Federal District Court for the State of Nebraska. He appealed and lost. He then filed a writ of habeas corpus alleging incompetence of counsel. He claimed that his trial counsel failed to make an in limine motion objecting the testimony of one witness, failed to object to the testimony of a second witness, and failed to object to the U. S. attorney’s vouching for a witness during closing.

A defendant in a criminal trial not only has the Sixth Amendment right to counsel but the right to competent counsel. To win a grant of habeas corpus, alleging incompetence of counsel, a defendant carries the burden to prove that “(1) that counsel’s representation was deficient and (2) that he suffered prejudice as a result.”

The writ was granted and the government appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit ruled that the in limine motion even if counsel was deficient in failing to make the motion ¹would not have had any effect on the trial since there was “overwhelming” evidence of the defendant’s guilt. Likewise the court found that Bass was not prejudiced by the failure of counsel to object to the testimony of a second witness due to the evidence against him.

“Vouching” for a witness occurs when an attorney claims to have knowledge, outside the evidence, that a witness is truthful. For example, an attorney cannot say in closing that I’ve known witness X for twenty years and he has never lied to me.” The alleged vouching occurred when the prosecutor said:

Most of them [the government's witnesses] have testified before this trial, but not all. And they know what the truth is, and they understand it’s important, and they came before you and told you the truth about Jerome Bass. Sergeant Langam explained it best when he testified about his personal barometer, how he gauges the truthfulness in proffer interviews. He corroborates the interviews against each other . . . .

But the appellate court found that the prosecutor was merely explaining why the jury could find the witnesses credible and she was not giving her personal opinion.

Jose Alvarado-Tizoc, Antonio Duran, and Noe Duran, were convicted of conspiracy to distribute more than 400 grams of substances containing
a detectable amount of fentanyl and more than a kilogram of substances containing a detectable amount of heroin. Fentanyl is a prescription synthetic narcotic sold on the streets in a diluted form as a substitute for heroin.

Sentences ranged between 121 and 200 months.

The defendants obtained significant quantities of the drugs and wholesaled them to street vendors who diluted them to usable strengths by adding neutral substances.

One of the factors considered under the Federal Guidelines the in drug cases is the weight of the substances possessed or sold. When it came time to sentence the defendants the judge determined the weight of the drugs as sold on the street to determine the sentence. The defendants appealed claiming the weight of the Fentanyl that they sold to the street dealers was a lot less than the weight of the substances combined with the fillers sold on the street. The Seventh Circuit Court of Appeals agreed and remanded for resentencing.

Defendants won–right? Well not exactly.The court ruled that the sentencing judge could augment the sentence due to the additional potency of fentanyl as compared to heroin. I’m willing to bet that by the time of the resentencing the defendants get approximately the same sentence they got on they initial sentencing. It doesn’t pay for winning!

Roger Clemens who’s trial for obstructing a congressional investigation, making false statements and perjury, in connection to his alleged false statement claiming not to use steroids before a Congressional committee, ended in a mistrial will be tried again on April 17. Federal District Court Judge Reggie Walton declared a mistrial on July 14, the second day of trial after the United States Attorney allowed the jury to see a video tape covering subjects Walton had previously excluded from the trial.

After Walton declared a mistrial, Clemens moved to dismiss the case on double jeopardy grounds. The Sixth Amendment generally prohibits the government from trying a person twice for the same offense. This is particularly true when the government moves for a mistrial or the judge grants a mistrial on his/her own motion such as when a jury deadlocks. In these cases a new or successive trial can only be held if manifest necessity exists. This, for example, is the test judges use in ruling on a hung jury. On the contrary when a defendant moves for a mistrial a retrial occurs unless the prosecutor’s error leading the defense motion for a mistrial was done with the intent of goading the defendant into moving for a mistrial.

While Judge Walton was angry at the prosecution for playing the video and while he believed the government’s actions were intentional he did not find that the government was goading the defense into moving for a mistrial and he denied the defense motion last week.

By all accounts the decision on the motion was close. As Solomon L. Wisenberg of the White Collar Crime Prof Blog points out the government made a number of other errors in the trial and when considered together with the video it sure looks like they were goading the defense into moving for a mistrial. The defense may bring an interlocutory appeal to settle the matter.

Randy Lee Johnson, Jr. was tried in Federal Court on charges of receiving and possessing child pornography. On appeal he claimed that convicting him on both counts violated the Double Jeopardy Clause. Furthermore, Johnson and the government agreed that in instructing the jury the judge erred as to the jurisdictional element of the receipt charge.. ¹ The Government agreed that Johnson could not be convicted of both receipt and possession of child pornography without violating the Double Jeopardy Clause. But if argued that there was suffient evidence to uphold the receipt charge.

The primary question before the court was which test to use in determining whether there is sufficient evidence when the trial court misinstructs the jury. When the sole claim before the trial court is whether there is sufficient evidence to support a conviction and there is no question regarding an incorrect instruction the test is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” But the Eighth Circuit ruled that when the jury is misinstructed it is necessary to have a stricter test. The proper test in such instances where there is no objection to the court’s erroneous instruction is either that “a conviction may be upheld against a sufficiency challenge where a rational jury could have found, beyond a reasonable doubt, each element of the offense as charged in the jury instructions.” or “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would have found that the government proved the statutory element.” In this case the first test is not applicable since the government’s evidence did not fit with the instruction as given.

Therefore the question was whether the court should use the “any rational trier of the fact test” as used when there is no question as to jury instruction and as urged by the government or the “overwhelming or incontrovertible test” as urged by Johnson. The Court chose the latter, finding that the Due Process Clause and the Sixth Amendment’s requirement if a jury trial mandate that the stricter test be used. Since there was some evidence that Johnson did not received the child pornography over the internet the court reversed the conviction on the receipt charge and remanded the case to the trial court.

Since only the possession of child pornography charge remains the Court did not consider the Double Jeopardy issue.