A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

Former Memphis police officer Arthur Sease had a scam going. He would arrange for a third party to make a drug deal with a dealer. In the middle of the deal Sease or a cohort would arrest the dealer, steal the drugs and take any money they found.

He was fired and convicted on 44 counts in Federal Court. Among the charges were violations of conspiracy to deprive another of their civil rights under the color of law, deprivation of civil rights under the color of law, and robbery and extortion under the color of official right interfering with interstate commerce. He was sentence to life plus 255 years ¹.

Well established constitutional law states that when considering the constitutionality of a search or an arrest under the Fourth Amendment you do not consider the intent of the police officers. (See Whren v. United States) Sease had the chutzpa to argue that because the drug deal which he set up was illegal, it made no difference whether his taking of the drugs and the money was for legal reasons or for illegal reasons. If there was no constitutional violation he could not be convicted of depriving the drug dealers of their civil rights.

The Sixth Circuit held that “[u]nlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy.”

The issue in Whren involved the exclusionary rule where officers have to make snap decisions in difficult situations. Here there were no snap decisions, Sease had everything planned out. Furthermore the deprivation of rights statutes require that the court consider the intent of the officer. To obtain a conviction the government must show that the defendant “acted with a corrupt, personal, and pecuniary purpose.” As a result the court upheld the conviction and Sease is going to spend the rest of his life in prison. ²

Today we have a special treat. William Leonard Pickard, the plaintiff in Pickard v. Department of Justice, the Ninth Circuit case allowing criminal defendants to sue the Department of Justice to get documentation about informants after the government admits in court that a certain person is an informant has written specially for takingthefifth-acriminallawblog.com his comments on the Ninth Circuit decision.

INFORMANT RECORDS NOW AVAILABLE THROUGH FOIA

In a significant published decision affecting thousands of cases, the 9th Circuit ruled on July 27, 2011 that defense attorneys and the public may now obtain federal informants’ agency records through FOIA, once the informant is officially confirmed by testimony at trial. In Pickard v. DOJ, 2011 U.S. App. LEXIS 15397, the 9th Circuit determined that “as a matter of first impression and great importance” (Judge Wallace, concurring), federal informant Gordon Todd Skinner’s DEA files must be provided to Plaintiff William Leonard Pickard.

The decision has broad implications for the defense bar, describing for the first time a FOIA method to obtain informant records after their testimony in any case. The decision in Pickard v. DOJ provides a check on prosecutors’ compliance with their obligations at trial to disclose impeachment evidence on government witnesses.

In interpreting FOIA Sec. 5 USC 552(c)(2) whereby informant records are subject to FOIA if the individual were “officially confirmed” as an informant by a federal agency, the 9th Circuit declined to adopt DOJ’s proposed standard that would require a “press release” by a “head of an agency,” instead concluding that Pickard’s explanation — that agents’ testimony should suffice — “makes more sense” in a FOIA context and in view of the legislative history of 5 USC 552(c)(2).

The 9th Circuit observed that since the 1976 enactment of FOIA, DOJ had never issued any regulation or advisory interpreting “official confirmation” under FOIA, nor had any court ruled on the issue. Observing “the cat is out of the bag” regarding informant Skinner’s records, the 9th Circuit determined that agency records of Skinner must be made public, thus opening the door for similar requests by defendants, attorneys and public interest groups for informant records. Although the 9th Circuit noted the decision “may cause trouble for prosecutors and confidential informants,” the availability of informant records through FOIA will assist prosecutors, defense attorneys and the courts in assessing what records are material to the defense, bypassing prosecutors’ prior unilateral determinations in selecting specific records for release (see http://caselaw.findlaw.com/us-9th-circuit/1575518.html).

William Leonard Pickard

http://www.freeleonardpickard.org

crucible27@gmail.com

Tucson, Arizona

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.

Gregory Sitzmann was indicted in 2007 for the international distribution of cocaine. In the four years since 2007 he has been represented by six different attorneys and for a period of time he represented himself.

Yesterday his current court appointed attorney, Thomas Abbenante, told Us. District Judge Paul Friedman of the U. S. District Court for the District of Columbia that Sitzmann wanted to represent himself again. Friedman interrupted Abbenante, saying, “No, he’s not going to proceed pro se. We’re done with that,” He refused to listen to the reasons that Sitzmann wanted to represent himself.

But under Faretta the Supreme Court has ruled that almost anyone has a constitutional right to represent themselves. And the California Supreme Court ruled in >Marsden that the right to appointment of counsel guaranteed in Gideon v. Wainwright is only meaningful if competent counsel is appointed and that a judge must give a defendant a right to be heard before denying his/her motion for substitution of counsel.

While a district court judge in Washington D. C, is not required to follow the California precedent in Marsden it is clear that Friedman followed neither Marsden or Faretta

However the question is raised what happens when a defendant uses Marsden or Faretta for sole reason of delaying a trial. Any judge and any honest attorney will admit that Marsden and Faretta are used for delay. It is not clear that Sitzmann used the Faretta motions and the substitutions of attorneys for delay purposes. At least one of the substitutions occurred when his attorney was appointed to a judgeship. John Bergendahl and Richard Klugh were excused from the case when it became clear that they had a conflict of interest.

But when a simple one count drug case lasts nearly four years the question of intentional delay is raised. There is very little law on the issue and Judge Friedman invited Sitzmann to take the issue up on appeal. Since it is not clear that the changes in counsel are for delay purposes this may not be the best case to take up on appeal but we will see.

The Federal District Court for the Middle District of Florida found Florida’s Drug Abuse Prevention and Control law unconstitutional for its failure to require a mens rea. Mens rea is the scienter or knowledge element of an offense. By eliminating the knowledge element from the offense, the Florida legislature allowed one to be convicted of a drug offense without knowing that he/she possessed drugs. A student who had drugs in his backpack could switch backpacks with a friend who did not know the illegal nature of its contents. The kid could then be arrested for possession of the drugs.

Mackle Vincent Shelton was convicted of delivering a controlled substance. The only two elements of the offense are that the substance was delivered and that it was cocaine. There was no requirement that Shelton knew that the substance was cocaine.

The court ruled that this violated a long history of Supreme Court cases. The Supreme Court has found that due process requires that strict liability be limited to crimes that do not have severe penalties, heavy stigma attached to a conviction, and that regulate innocuous activity. Shelton was facing a maximum sentence of 30 years. There is no question that this is a severe penalty. The stigma attached to a convicted felon is heavy and delivering a package, in and of itself, is not the type of activity that one would expect to be regulated. Therefore the court invalidated the Florida drug law. It is now up to the State of Florida to decide whether to appeal or to change the law.

Gordon Skinner testified for the government at Wiliam Pickard’s narcotics trial. He admitted being an informant for the DEA and to providing information about Pickard. DEA agents also testified that Skinner was an informant.

After Pickard was convicted he made a Freedom of Information (FOI) request to the DEA for information about Skinner and his relation to the agency. The request was rejected and he appealed, first administratively and then to the District Court. After the DEA’s first motion for summary judgement was denied it made a Glomar motion in which it neither denied or admitted that Skinner was an informant. After the motion was granted Pickard appealed to the Ninth Circuit.

The Ninth Circuit reversed the District Court’s ruling and ordered the DEA to provide an index of documents that would comply with Pickard’s request along with any objections it has to providing individual documents.

The release of FOI documents is governed by the Freedom of Information Act. 5 U.S.C. § 552(c)(2) forbids the release of information about an informant unless the agency has officially confirmed the person as a confidential informant. The DEA argued that since there was no official confirmation it did not have to release the documents. However the Court ruled that since Skinner had admitted his status on the witness stand and since the U. S. attorney had called Skinner as a witness and asked him about his activities as an informant, it was not necessary for there to be an official statement on behalf of the agency affirming his status.

In Michigan v. Summers the Supreme Court held that a search warrant for a residence allows officers to detain those in the residence during the search and that this right extended to a man leaving the residence as officers entered. In United States v. Bailey the Second Circuit Court of Appeals, last week, extended the permissible detention to an individual the officers saw drive away from the residence in order to allow them to follow and stop the individual. The officers then brought the individual back to the residence and detained him until the search was over.

With a search warrant for a basement apartment at 103 Lake Drive in Wyandanch, New York officers arrived at the residence. They saw two men, one of them Chunon Bailey leave the unit and drive away. They followed the vehicle, stopped it and brought the men back to the residence. Bailey was detained and he was arrested after guns and drugs were found in the residence.

In Summers the Supreme Court provided three reasons to justify the detention of someone leaving a residence: (1) “preventing flight in the event that incriminating evidence is found”; (2) “minimizing the risk of harm to the officers”; and (3) facilitating “the orderly completion of the search.” In a footnote the Second Circuit says that the first and second criteria apply. But it gives no facts to support this view. In another footnote it states that the police officers testified that the reason they didn’t immediately detain Bailey was that they were afraid that by doing so they would alert anyone else in the house to the police presence and a dangerous situation may result.

It is one thing to follow the Supreme Court’s criteria. It is another to make a blanket holding. The Second Circuit held, “that Summers authorizes law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.”

This issue may come before the Supreme Court. The Circuit Courts are divided. The Fifth, Sixth, and Seventh Circuits, like the Second Circuit, upheld detentions of people after they left the scene. The Eighth and the Tenth Circuits ruled to the contrary. They held that once a person left the residence the Summers criteria are no longer applicable. If the person leaves the scene without knowing that a surveilance is in progress then the officers are not in danger. The Second Circuit’s response is that the officers are required to make a difficult decision: either to detain Bailey outside the residence and possibly notify those inside that the police are present or to to let Bailey, who they call a “person of interest to leave without being detained. While the search warrant indicates that a judge found probable cause to believe that someone in the residence may have committed a crime at the time of the detention there was no individualized suspicion, as required by Terry that Bailey committed a crime and he should not have been detained. When you detain someone a mile away from the house, return they to the house and require them to wait until the search is over it is no longer the minimal intrusion found by the Supreme Court in Summers.

The Armed Career Criminal Act (ACCA) provides for a minimum sentence of fifteen years for anyone who has three prior serious drug offenses or violent felonies. It defines a serious drug offense as any drug offense for which the maximum punishment is ten years or more in prison, according to state law.

The question in McNeill v. United States, decided yesterday, was whether a drug conviction is an ACCA prior based based upon the penalty at the time of conviction in state court or based upon the penalty at the time of the Federal Court trial.

Clifton Terelle McNeill had two two violent felonies on his record at the time he was convicted of possession of a gun and possession of cocaine for sale in Federal Court. He also had six drug offenses. At the time of his conviction on the drug offenses the maximum penalty in North Carolina was ten years. But in 1994, the North Carolina law changed providing a maximum sentence of 38 months. The trial judge ruled that he had three or more serious felonies under the ACCA and sentenced him to 300 months.

The Supreme Court reviewed the language of the ACCA and agreed with the trial court that the determination of whether a crime is a prior under the ACCA is made at time of the original sentencing, not at the time of the conviction of a subsequent crime. As a result the Supreme Court found that the fifteen year minimum applied to McNeill.

Section 18 USC 924(e)(1) states in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years

Justice Thomas, for a unanimous Court, held that despite the present tense language of the section the statute should be interpreted as it was written at the time of the original state conviction, not at the time of the subsequent Federal conviction. Since the statute talks about a prior conviction it is necessary to look at the conviction at the time of the original sentencing. Otherwise it is possible that the statute applicable to the prior conviction may have been revoked. Furthermore under North Carolina law the maximum punishment for drug crimes committed prior to 1994 remains ten years.

While this is all good and well certain incongruities appear. If a crime happened the day before the revised North Carolina statute was passed the defendant is facing an ACCA prior while the defendant who was convicted one day later is not. Furthermore by basing the statute on state law a defendant who committed the same offense but lives across the border in South Carolina may not be facing an ACCA mandatory minimum.

In any case, I’m not sure why the Supreme Court granted certiorari in this case. In sentencing McNeill the judge pointed to McNeill’s “long and unrelenting history of serious criminal conduct” in upwardly departing from the Sentencing Guidelines to sentence him to 300 months. Thus it is unlikely that even if the Supreme Court had decided that the mandatory minimum did not apply and remanded the case for resentencing that the trial court would have sentenced McNeill to less than 300 months.