The Ninth Circuit Court of Appeals upheld a decisision by the Bureau of Immigration Appeals (BIA) that solicitation for the purpose of prostitution is a crime of moral turpitude prohibiting an order allowing a foreign citizen to voluntarily depart from the country.

The Court held that since a prior decision of the BIA found that prostitution was a crime of moral turpitude and since there is no material difference between prostitution and solicitation for prostitution that solicitation under California Penal Code Section 647(b) is a crime of moral turpitude.

A crime of moral turpitude is one that “encompasses crimes that “are base, vile, or depraved —if they offend society’s most fundamental values, or shock society’s conscience. . . [S]uch offenses are those that are intrinsically wrong (malum in se) or require evil intent.” Conviction on two misdemeanors involving moral turpitdude provide cause for deportation. The defendant, in the matter before the court, Avinesh Anand Rohit, had another conviction for attempting to dissuade a witness, a crime of moral turpitude.

Secure Communities is now active in all or part of 44 states. Secure Communities is the Federal program that allows the Federal Government to use local arrest data to deport undocumented immigrants. It is based on biometric data such as fingerprints of arrestees. Close to 120,000 immigrants have been removed from the country using the Secure Communities program. Originally we were told that the program was voluntary. Then we were told that if a state signed a contract with the Federal government local governments could not opt out. Now we are being told that state governments do not have an option and they must participateWhile the original claim was that only felons would be deported the list of those removed include many who were convicted of misdemeanors and others for whom charges were dismissed,

Last week Secure Communities was enacted statewide in Connecticut and Maryland. “Baltimore Mayor Stephanie Rawlings-Blake said she was ‘deeply disappointed” about the program’s activation, but acknowledged that the city “plays no role in the implementation of the program and that [she has] no control over ICE’s actions.’” The Baltimore City Council condemned the program saying that it promoted “a culture of fear and discourage trust between local law enforcement and immigrant communities throughout the city.” The fear is that immigrants will be less likely to report criminal behavior if if it will result in deportation. This is particularly true in family matters such as domestic violence. A woman might want the beatings to stop but she need’s her husband’s financial support and does not want him deported. Likewise a mother may report her child’s drug use in order to get help for the child but does not want to expose the child or the family, for that matter, to deportation.

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The Supreme Court again took up the question of whether to grant police officers summary judgement on qualified immunity grounds in a law suit alleging that the officers violated the plaintiff’s civil rights. Specifically, in Messerschmidt v. Millender the Court reversed a Ninth Circuit en banc decision denying officers summary judgment for an illegal search of a residence. The residence belonged to the plaintiff, Augusta Millender, the former foster mother of Jerry Ray Bowen who was accused of shooting at Shelly Kelly, his former girlfriend. Millender ¹ and her daughter sued inter alia the officers.

The officers claimed that they were entitled to qualified immunity since they could reasonably believe that the search warrant authorizing the search was valid. Furthermore, they maintained that the officer’s reliance upon the search warrant was reasonable since the warrant had been approved by their supervisors, a deputy district attorney and the magistrate. The search warrant authorized the seizure of all guns and all gang-related materials, even though, while the defendant was a gang member, the evidence was that the assault on Kelly was not gang related and only one specified gun was involved. The court siding with the officers held that guns other than the one used to shoot at Kelly could be used to commit other crimes and gang material could be used to show ties between the residence and Bowen. ²

Akio and Fusako Kawashima plead guilty to tax offenses. Akio plead to willfully making and subscribing a false tax return in violation of 26 U. S. C. §7206(1). Fusako plead to aiding and assisting in the preparation of a false tax return in violation of 26 U. S. C. §7206(2). They are lawful permanent residents, citizens of Japan. The Immigration and Naturalization Service started the deportation process following their convictions.

Under the Aliens and Nationality Code (8 U.S.C) anyone who has committed an aggravated felony is deportable. An aggravated felony is defined as one that either : “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” There is no doubt that the Kawashimas’ crimes involve fraud and deceit in which the government lost over $10,000. But they claim that they are only deportable for committing a tax offense if they were convicted on under clause two with violating 26 U.S.C. 7201. Since they did not plead to a violation of section 7201 they would not be deportable. This makes some sense since if section (i) refers to all crimes involving fraud and deceit section (ii) is duplicative and unnecessary. However the Supreme Court held that the plain language of clause (i) which reads:

The term ‘aggravated felony’ means—
. . . . .
“(M) an offense that—
“(i) involves fraud or deceit in which the loss to the
victim or victims exceeds $10,000;

While the normal rule that is accepted by Justice Ginsberg in her dissent is that legislation should not be interpreted in such a way that two sections duplicate each other the majority held that clause one clearly refers to all statutes involving fraud or deceit with a loss of over $10,000 including tax offenses overcomes the normal rule of statutory interpretation avoiding duplicative sections.

In a highly unusual move the Supreme Court issued a per curium decision and a three justice dissent by Justice Breyer ¹ on a Petition for Writ of Certiorari. ²

The appeal in question is from a Third Circuit Court of Appeal grant of habeas corpus ordering a new trial for a 1984 murder conviction and a sentence of death. The allegation is that the District Attorney withheld Brady discovery. The main witness at the trial was a co-participant in the murder named Bernard Jackson. The defense found a police activity sheet with the case number, Jackson’s name and a claim by Jackson that one Lawrence Woodlock was a co-participant. The defense claimed that this form is exonerating evidence and the failure to turn it over vacates the conviction. The prosecution claims that the evidence is ambiguous and that Jackson was thoroughly cross examined. The additional cross examination with the activity sheet will not have a material effect upon a jury.

The divided court granted certiorari and sent the case back to the third Circuit to determine whether the activity sheet is so vague that there was no reason to turn it over to the defense. Justice Breyer argued that it was not vague, that it clearly applied to the case and that since there was no question of law certiorari should be denied and the third Circuit decision allowed to stand.

Randall Lee Fields, a prisoner in a Michigan jail was taken from his cell to a separate part of the building sometime between 7:00 pm and 9:00 pm. He was then interrogated by two armed officers for five to seven hours. He was not given his Miranda rights although he was told he could go back to his cell if he wanted to. During the interrogation he admitted to having sexual acts with a 12 year old prior to his current interrogation. His admission was admitted at trial. The question the Supreme Court faced in Howes v. Fields was whether Fields’ Miranda rights were violated. Under the seminal case of Miranda v. Arizona a defendant’s must be warned of the admissibility of a statement and the availability of counsel prior to making a statement if the defendant is in custody and if the statement is the result of interrogation.

Since Fields’ conviction was upheld in the state courts and comes to the Supreme Court as an appeal by the state of a grant of habeas corpus by the Federal Court the primary question is whether the State Court decision clearly violated Supreme Court decisions. The Supreme Court, this week, ruled that it did not. The Supreme Court reviewed its prior decisions regarding the use of Miranda in interrogations of defendants who are in custody for unrelated matters and found no decision setting a categorical rule regarding the applicability of Miranda to in custody interrogations regarding unrelated matters. In previous case it either refused to consider the issues or assumed that Miranda applied without decided whether it applied. Therefore, the Court reversed lower court decisions granting the writ of habeas corpus.

But the court went further, in what must be considered dicta, and stated that Miranda was not applicable to the situation in Fields.

For Miranda purposes the Court ruled the phrase “in custody” has a special meaning. “In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation, . . . a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.’” The Court gave three reasons for finding that Fields was not in custody for purposes of Miranda. First, it stated that questioning a person who is in custody does not effect the same type of shock that questioning a person who has recently been arrested. Second, a prisoner is unlikely to give an incriminating statement as one who has recently been arrested since his/her release date will not be effected by the statement. Finally, the interrogating officer has less authority to affect the release date on an in-custody inmate as compared to a recently arrested defendant.

While it is true that Fields was told that he could go back to his cell if he did not want to answer the officers questions, ¹the feeling of coercion when being interrogated in a jail setting is strong. Jailers have near complete control over inmates while they are in custody. Inmates are constantly called before custodial officers for disciplinary hearings. There is no Miranda right in these hearings and they can be disciplined if they fail to answer the officer’s questions. They can be thrown for extensive periods of time into solitary confinement. Commissary and phone rights can be taken away. They can be denied the right to have visitors. And perhaps most importantly they can lose “good time” and have their release date delayed. Thus, the coerced nature of in-custody statements is great and to deny those interrogated while in custody the right to remain silent or the right to have an attorney present violates the basic requirements of Miranda.

I subscribe to LinkedIn’s White Collar Criminal Defense Attorney Group. Someone posted on it a blog page from Expert Bail Bonds a nationwide network of bail agents listing groups of people who should not be on your Facebook friends list. The author points out that a juror was jailed for three days after sending a friendship request to a defendant in an automobile negligence case.

While the author is right that certain groups of people, such as (a)people you do not know, (b) the nosy police officer ¹, (c) the DA if you have a pending criminal matter, (d) your your bail bonds agent, and (e) a juror in your trial should not be friended the author is wrong in many respects. The author also lists your grandmother and your wife among others.

The issue is not who you friend, but what you say. In the Twenty-first century you cannot assume that anything you say on line, or most any other place will be confidential. You must assume that your grandmother as well as the nosy police officer ² will find out what you say. A friend of mine was diagnosed with cancer. One of his daughters posted it on facebook before her brothers and sisters knew about it–not cool.

Statements such “I got loaded last night and almost had an accident driving home” or “That was really good stuff at the party” should not be placed on Facebook. Likewise coded messages such as I have “two cars” (which every law enforcement officer knows that it means “two kilos of cocaine”) to sell should not be posted on facebook. These statements cannot only get you arrested but can be admitted at trial as a “party admission” exception to the hearsay rule.

Apologies–We’ve had some internet connection problems. They seem to be all over and we are back.

Thank you for your patience.

Zadik Shapiro

Robert Jeffery Farmer was convicted of two murders in separate trials in Nevada and sentenced to death. Four circumstances in aggravation were alleged. But the three judge panel only made findings as to two statutory aggravating circumstances, both of which involved claims that the murder occurred during the commission of other felonies. ¹ It found both of these to be true. After he was sentenced the death penalty was vacated when the Nevada Supreme Court found the circumstance in aggravation unconstitutional. The prosecutors then tried to reinstate the two circumstances in aggravation for which the panel did not make findings. Farmer appealed alleging a violation of the Fifth Amendment’s ban on double jeopardy.

The Supreme Court has ruled that an aggravating circumstance in a capital case, like a criminal charge is subject to the double jeopardy clause.

If the three judge panel’s failure to make a holding on the two indicated that it found the allegations not true double jeopardy would prevent a retrial on the allegations. But if no such holding can be implied double jeopardy is not applicable.

In a case with similar facts, Poland v. Arizona, The Supreme Court held that where neither the trial court or the appellate court finds that the prosecution failed to meet its burden and where the trial court sentenced the defendant to death, the double jeopardy clause is not violated by retrying an alleged circumstance in aggravation where there was no finding on the circumstance in the trial court.

Prosecutors in the Jerry Sandusky trial asked that jurors be chosen from a neighboring county for the Centre County Pennsylvania trial. Sandusky the former Penn State assistant football coach is charged with 52 counts of sexual assault involving ten teenage boys over a fifteen year period. The case has drawn international attention since it involves allegations that the legendary former Penn State Coach Joe Paterno failed to take proper action upon learning of the abuse.

The attorney general alleged in the change of venire motion that the extraordinary amount of publicity and the special relationship between the people of Centre County and the university makes it necessary to use a jury from out of county. But the attorney general did not move for a change of venue.

The problem with the attorney general’s motion is that the Sixth Amendment guarantees “an impartial jury of the State and district wherein the crime shall have been committed.” Of course a defendant can waive the right to a jury or the right to a trial in the jurisdiction where the crime was committed. This occurrs relatively frequently when the defendant feels that he/she cannot get a fair trial in the jurisdiction. Its called a change of venue motion. But the Sixth Amendmend does not guarantee the government the right to change the venue. Nor does it allow the government to waive the defendant’s right to venue and venire. There is relatively little law on the subject.And it will be interesting to see what happens. But the clear language of the Sixth Amendment seems to work against the attorney general’s motion.