Gary Cossey plead guilty in the Northern District Court for the State of New York to possession of child pornography. He was sentenced to 78 months and he was placed on supervised release for the rest of his life. At his sentencing hearing reports from two psychiatrists were introduced. They found him unlikely to reoffend. The judge said that he did not trust such evidence and that he expected that within fifty years a gene would be discovered that proved that the possession of child pornography was genetic and could not be changed. There was no evidence to back up this claim.

The Second Circuit Court of Appeals overturned the sentence and remanded the case. It took the unusual step or ordering that the sentencing be assigned to a different District Court judge.

Even though Cossey’s attorney did not object at the time of sentencing the appelate court found plain error in the fact that the sentence was based upon unsupported claims affecting Cossey’s substantial rights and it seriously affected the fairness, integrity, and public reputation of judicial proceedings.

The Delaware Supreme Court upheld drug and driving charges against Brandon Hill.

New Castle County, Delaware Police conducted random vehicle registration searches along Route 273. They stopped Hill and discovered that he had a suspended license, lacked proper registration and proof of insurance. Officer Torres ran Hill’s record. It came back that he may be armed and dangerous. After a back up officer arrived Hill was pat searched. They found $390 in cash ¹ and a number of cell phones. They then requested and received permission to search the vehicle, They ordered a dog to sniff the vehicle. They found two large plastic bags filled with 32 plastic baggies containing crack cocaine and six Oxycodone pills.

On appeal Hill asserted that the police had no reason to detain him after the pat search and that everything seized after the search must be suppressed. But Hill’s counsel failed to raise this issue in the trial court and therefore the appellate court will only reverse the decision if there was plain error. The Supreme Court refused to do so. It found the officers had a reasonable suspicion of criminal activity based upon Hill’s driving without a license, the information that he may be armed and dangerous, ² nervous fidgeting and the finding of the money and the cell phones.

Considering all of these issues the court found that the denial of the search motion was not Hill plain error and it affirmed the conviction.

Glen Marcus was convicted of engaging in unlawful forced labor and sex trafficking between January 1999 and October 2001. The problem is the statute making forced labor and sex trafficking illegal was not enacted until 2000. Therefore much of the evidence at trial concerned acts that were legal at the time they were committed.

Of course someone cannot be convicted for committing a legal act. The Constitution and basic rules of fairness prohibit ex post facto laws which penalize events that happened prior to the passage of a statute making an event illegal. For some reason neither defense counsel nor the judge realized that some of the acts were performed prior to the effective date of the statute. Therefore no instruction was given to the jury informing them of the effective date of the statute.

Marcus’ appellate attorney caught the error and raised the issue before the Second Circuit Court of Appeals. The problem is that generally you cannot raise an issue that was not raised in the trial court. An exception occurs however for “plain error.” The issue raised before the Second Circuit and before the Supreme Court is how to define “plain error.”

The Second Circuit ruled “if it was possible for the jury—wh[ich] had not been given instructions regarding the date of enactment—to convict exclusively on [the basis of] pre-enactment conduct, then the conviction constitutes a violation” of the Ex Post Facto Clause and must be reversed.

The Supreme Court, while not ruling on the issue of whether “plain error” occurred, returned the case to the Second Circuit finding that its definition of “plain error” was wrong. Citing Puckett v. United States the Supreme Court ruled that a five part test exists to find “plain error:”

(1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

The Second Circuit’s “possibility test” fails to meet the third and fourth element. A mere possibility neither affects the outcome of the trial or the fairness of the trial. therefore the Supreme Court returned the case to the Second Circuit for further consideration.

Justice Stevens dissented. He pointed out that Rule 52(b) of the Federal Rules of Criminal Procedure which mandates the use of the “plain error” test merely states:

A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

Therefore Justice Stevens believes that the only issue should be whether the use of evidence of events that occurred before the law was enacted and the failure to inform the jury of such violated a substantial right of Glenn Markus and he would reverse the conviction. It makes sense–doesn’t it.

The Supreme Court ruled yesterday that the failure of an attorney to object to the government’s disavowal of a plea bargain is subject to the plain error rule.

Normally the failure of a side to object to an error before the trial court forfeits the right to raise the issue on appeal. Under the Plain Error Rule (Section 51(b) of the Federal Rules of Criminal Procedure) an issue may be raised on appeal even if it was not raised in the trial court under limited conditions. To obtain relief under rule 52(b) one must comply with four prongs. They are 1) there has been an error or defect that has not been waived by the defendant, 2) the error must be clear and obvious, 3) the error must have affected the defendant’s substantial rights, and 4) it can be granted only if the appellate court, using its discretion, finds that it seriously affected the fairness, integrity or public reputation of the court.

In Puckett v. United States, at the time the plea was taken, the U. S Attorney agreed that in exchange for a guilty plea in a bank robbery case the government would agree to a three level reduction in the sentencing guidelines for acceptance of responsibility and that Puckett would be sentenced at the bottom of the guideline. But due to the defendant’s health problems three years passed before sentencing. During that time Puckett admitted to further criminal activity. As a result at sentencing, the government refused to agree to the three level reduction and the Court said it would not give the reduction, in any case, because of the intervening criminal behavior.

At sentencing Puckett’s lawyer failed to mention the plea agreement and failed to request that Puckett be allowed to withdraw his plea.

On appeal the Supreme Court found that Puckett met prongs one,two and four of Rule 52(b). But he did not meet prong three: that a substantial right be affected because the the judge was not going to grant the three level reduction regardless of what the U. S. Attorney did.

Well now comes the habeas for incompetence (IOC) of counsel. But see yesterday’s post on IOC. The seven justices in the majority here (Scalia, Roberts, Ginsberg, Breyer, Alito, Thomas, and Kennedy) seem to have decided that Puckett was not prejudiced by the government’s turn around and that means trouble under Strickland.