Adrian Moncrieffe plead guilty to possession of marijuana with intent to distribute after law enforcement officers found 1.3 grams of marijuana in his car. 1 Moncrieffe is a Jamaican citizen, having moved to this country with his parents when he was three years old, and following his conviction the government attempted to deport him. Under the Immigration and Nationality Act (INA), a person convicted of an aggravated felony must be deported.

While the act does not clearly define the term “aggravated felony” it does state that “illicit trafficking in a controlled substance” is an aggravated felony. Generally these are drug crimes punishable by more than one year in prison. But under Federal law “distributing a small amount of marihuana [sic] for no remuneration” is a misdemeanor.

The Supreme Court, last week, ruled that since the Georgia statute does not differentiate between significant quantities of marijuana and small quanitities of marijuana and since it does not distinguish between distribution for remuneration and distributions that are not for remuneration, a conviction under the statute for possession with the intent to distribute marijuana can not be considered an aggravated felony. This does not mean that those convicted of violating the statute will not be deported. It only means that since violations of the statute are not aggravated felonies the judge will have more leeway in determining whether the particular offense deserves deportation.


  1. Maybe I am naive living on the left coast but I’ve never heard of anyone being charged with intent to distribute marijuana with only 1.3 grams seized from a automobile.


The Supreme Court, today, in Missouri v. McNeely refused to grant the State of Missouri a per se rule allowing the warrantless taking of a blood sample to determine the blood alcohol level, in cases of suspected driving under the influence.

In a driving under the influence of alcohol case the question that the jury must answer is whether at the time the defendant was driving was she/he under the influence. There are a number of methods of determining whether a person was under the influence but all states allow the use of a blood alcohol test. The blood alcohol tests determines the percentage of alcohol in the blood. Most if not all states now require that the blood alcohol level be below 0.085 percent.

The Fourth Amendment requires that a search warrant be obtained prior to any search, and particularly when the search requires the invasion of the human body with a needle. However there are numerous exceptions to the rule. A search warrant is not necessary when exigent circumstances such as the destruction of evidence would occur during the time needed to get a search warrant.

The amount of alcohol in the blood dissipates over time. The blood loses between 0.015 and 0.02 percent per hour. The State of Missouri argued that the dissipation necessarily causes an exigent circumstance due to the fear of the loss of evidence during the time it would take to get a search warrant signed by a judge. But the Supreme Court ruled that the dissipation of the alcohol was a factor in determining whether a search warrant was necessary but courts must make a factual inquiry in each warrantless, nonconsensual case to determine if exigent circumstances exist which would excuse the necessity for a search warrant.

Does this mean that anyone stopped for a DUI should refuse to take a blood, urine or breath test and force the officer to get a warrant which can be tested in court. Perhaps but many states including Missouri have a law mandating a one year suspension of one’s driver’s license if you refuse to take an alcohol test.


The Second Circuit Court of Appeals upheld the conviction of Ron Bryant for possessing a firearm to further a drug trafficking offense against a Second Amendment challenge. It held that District of Columbia v. Heller only applies to those who possess weapons for legal reasons and possessing a gun to further a drug offense is illegal and therefore not covered by the Second Amendment.

Bryant was arrested after officers executing a search warrant at his residence found just under a gram of cocaine and a gun in his room. He was indicted and conviction for possession for sale of a controlled substance and possession of a firearm in the furtherance of a drug trafficking offense.

He appealed to the Second Circuit Court of Appeals claiming that the firearms statute as applied to his situation violated the Second Amendment. The Court quoted Heller as saying “whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” . . . We read this exegesis as an implicit limitation on the exercise of the Second Amendment right to bear arms for “lawful purpose[s],” As a result it upheld Heller’s conviction.


The Anti-terrorism and Effective Death Penalty Act (AEDPA) prohibits Federal Courts from granting writs of habeas corpus unless the state court decision was:

1)contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or
2)based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

Otis Lee Rogers was charged with making criminal threats, assault with a firearm, and being a felon in possession of a firearm and ammunition. Prior to his arraignment he made a Faretta motion demanding his right to represent himself. The motion was granted. However, by the time of his preliminary examination he hired a private attorney. Two months later he fired the attorney and again asserted his Faretta rights. After another two months he asked the court to appoint an attorney for him. The court complied but shortly before trial Rogers reasserted his Faretta rights. He was convicted at trial. After the trial he asked the court to appoint a lawyer to represent him in the filing of a motion for a new trial. The California court refused stating that Rogers did not provide a reason for the appointment of counsel.

He lost his appeals and filed a writ of habeas corpus in the U. S. District Court. The court denied the writ and he appealed to the Ninth Circuit Court of Appeals which granted the writ. The State of California appealed to the Supreme Court.

The Supreme Court ruled that the Ninth Circuit erroneously granted the writ because the state court did not violate “clearly established Federal law, as determined by the Supreme Court of the United States.” In its opinion the Ninth Circuit had cited general Federal law as expressed by the Supreme Court regarding the Sixth Amendment and it also cited its own precedent and that of other Courts of Appeal upholding the right to the appointment of counsel for post conviction motions. But the Supreme Court said that was not good enough since the Supreme Court, itself, had not ruled there was a right to appointed counsel for post conviction motions.

It is important to note that the Supreme Court stated:

The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges. And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial. This opinion is instead confined to the determination that the conclusion of the California courts that there was no Sixth Amendment violation is not contrary to “clearly established Federal law, as determined by the Supreme Court of the United States.” §2254(d)(1).

The problem with the Supreme Court decision and with AEDPA is that no attempt is made to do justice. Even the Supreme Court admits that Rogers may have unconstitutionally been denied his right to counsel and that if he had counsel the conviction may have been reversed. Justice has not been obtained and an innocent man may be sitting in prison. The AEDPA should be repealed.


Yesterday the Supreme Court ruled in Florida v. Jardines that a police officer may not enter the area surrounding a house with with a drug sniffing dog in order to obtain probable cause to get a search warrant for the house.

Miami-Dade Police Officers Douglas Bartelt and William Pedraja entered the porch in front of Jardine’s residence with a police dog trained to smell marijuana. The dog indicated that there was marijuana in the residence. Based on this information Bartelt obtained a search warrant. The Supreme Court upheld the decision of the Dade County court and the Florida Supreme Court that the search violated the Fourth Amendment and dismissing the case.

The area “immediately surrounding and associated” with a home is known as the curtilage. Traditionally this area is given the same protection as the residence itself. The homeowner may explicitly or implicitly give consent to entry into this area. For example, by placing a door knocker on the door, the homeowner gives consent to friends relatives and, others to enter the property, knock on the door, wait a brief period, and leave if there is no reply. But such consent does not extend to allowing police to enter the property with a drug sniffing dog for the purpose of obtaining probable cause to arrest the residents.


Jose Gilberto Portillo, who does not speak English, was convicted along with two of his friends of the murder of an elderly couple during a residential burglary in Washington D. C. Prior to the trial the court appointed a lawyer to represent him and then appointed a second lawyer who spoke Spanish.

Portillo wrote a letter to the judge complaining about his inability to communicate with his lawyers. The Sixth Amendment guarantees that indigent defendants receive competent legal representation. The court has a duty to appoint counsel when a defendant is unable, for financial reasons, to retain counsel. In determining whether the defendant received effective assistance of counsel the court must determine:

(1) whether counsel conferred with the defendant as often as necessary and advised him of his rights, (2) whether counsel elicited from the defendant matters of defense and then ascertained if any potential defenses were unavailable, and (3) whether counsel conducted both factual and legal investigation sufficiently in advance to permit reflection and to determine if matters of defense could be developed. 1

While the trial court held a hearing on Portillo’s letter and gave Portillo a chance to answer questions it failed to ask questions regarding the concerns Portillo raised in his letter or the Monroe/Mathews criteria name above. Rather most of the questions seemed to belittle Portillo. 2 The District of Columbia Court of Appeals found that

[T]he trial court’s inquiry was insufficient to determine whether defense counsel’s preparation was within the range of competence required in preparing criminal cases. The only question the trial court asked regarding counsel’s preparation for trial was whether they had an investigator working on the case. However, factual investigation is only one criterion of defense counsel’s preparation. Furthermore, appellant’s concerns were primarily related to what he perceived as a lack of communication, and the trial court did not follow up on appellant’s concerns with questions to appellant or counsel to determine the truth and scope of the defendant’s allegations.

Therefore the Court remanded the case to the trial court to determine whether Portillo received adequate assistance of counsel and if not to grant him a new trial.


  1. Matthews v. United States, 459 A.2d 1063, 1065 (D.C. 1983) (citing Monroe, supra, 389 A.2d at 821)
  2. See link to Portillo v. United States above for extensive quotations.


Maryland became the eighteenth state to not have a death penalty. Under the leadership of Governor Martin O’Malley the legislature repealed the death penalty. Legislators gave four primary reasons for repealing the death penalty:

It’s too expensive. You may assume that executing prisoners is more cost-effective than housing them for life. However, someone typically remains on death row for many years and will accrue massive legal bills in an effort to save his life. These costs can sometimes exceed the price of housing an inmate for life.

It’s prone to errors. The criminal justice system is not infallible, and sometimes mistakes are made. Perhaps there is no greater tragedy of justice than when an innocent man is put to death only to be exonerated of the crime posthumously.

It’s racially biased. Of the five men currently on death row in Maryland, four are African-Americans who have been accused of killing a white person, reports Reuters. This speaks volumes of the possible prejudice and bias with juries, prosecutors, and the justice system.

It’s not a deterrent. There is no support for the notion that states with the death penalty have a lower murder rate than states without it, lawmakers argued. In fact, the opposite may be true, Gov. O’Malley has said.

The State Senate passed repeal on March 6 by a vote of 27-20 and the House of Delegates passed the legislation, Friday, by a vote of 82-56. O’Malley has promised to sign it.

Since 2007 five other states: Connecticut, Illinois, New Mexico, New York, and New Jersey have abolished the death penalty. There are five people currently on death row in Maryland. They are not directly affected by the legislation but Governor O’Malley may commute their sentences to to life without parole.


Fifty years ago today the Supreme Court in Gideon v. Wainwright ruled that the Constitution mandated that the courts appoint counsel in felony cases for indigent defendants. In doing so, it reversed a earlier case, Betts v. Brady in which the Supreme Court ruled that there was no universal right for appointed counsel unless their was proof that the particular conviction was obtained in violation of due process.

Clarence Earl Gideon, like Betts, requested an attorney in the trial court and his motion was denied. For an uneducated and indigent person, Gideon did well at trial. He made an opening statement and he cross examined witnesses but he was found guilty. Gideon’s appeals were denied and he filed a writ of habeas corpus in the Florida Supreme Court. The writ was denied and he appealed to the United States Supreme Court which appointed future Supreme Court Justice Abe Fortas to represent him. The Supreme Court overruled Betts v. Brady and remanded the case for a new trial. Gideon was found to be not guilty in the new trial.

Gideon was a major victory. Over the last fifty years thousand of defendants have benefited from having appointed counsel. There is no question that public defendant do not always have the resources to fight the good fight. But they have done an amazing job with limited resources to fight for justice for all.

But the question comes up whether Gideon would have won his battle before the Supreme Court in 2013. In 1996 the Congress enacted the Anti-terrorism and Effective Death Penalty Act which limited the right of Federal judges to reverse state court findings in writs of habeas corpus to cases where either the state court decision involved an unreasonable application of clearly established federal law or where the state court decision resulted in an unreasonable determination of the facts in light of the evidence in front of it.

In light of Betts it is unlikely that the Supreme Court would find that the decision of the Florida Supreme Court violated clearly established Federal law. Nor is it likely that the Supreme Court in 2013 would find that the Florida Supreme Court unreasonably interpreted the facts in Gideon’s habeas.

Its a sad state of affairs when one of the most important Supreme Court rulings which has accomplished so much good would probably be decided in the negative today.


James J. Bulger was indicted on numerous gang charges in the Federal District Court for the District of Massachusetts including 19 murders and RICO charges. It is alleged that he led the Winter Hill Gang. He claims, with a significant amount of evidence to back him up that he was given immunity by the Justice Department in exchange for his assistance to the government as an informant.

The charges were brought against Bulger by the New England Organized Crime Strike Force, part of the Justice Department that prosecuted major crimes in the Boston Area. The strike force was separate from the United States Attorney’s Office but the two organizations were aware of each others work and often discussed cases together. During this period Richard G. Stearns worked in the U.S. Attorney’s office in Boston and held a number of high level positions in the office. He was later appointed to the U.S. District Court and was assigned Bulger’s case.

After Bulger was indicted, his attorneys moved to recuse Stearns pursuant to 28 U.S.C. § 455(a), on the grounds that “that a reasonable person would conclude that the judge could not be impartial, particularly in treating with the immunity defense, after the judge had held those positions of high responsibility in the U.S. Attorney’s Office during part of the period in question, and that recusal was required under § 455(a).”

Judge Stearns denied the motion and Bulger filed a writ of mandamus in the First District Court of Appeals. In a decision written by retired Supreme Court Justice David Souter, sitting on assignment, the Court held in In Re James J. Bulger that “despite our respect for Judge Stearns and our belief in his sincerity, we are nonetheless bound to conclude that it is clear that a reasonable person might question the judge’s ability to preserve impartiality through the course of this prosecution and the likely rulings made necessary by the immunity claim.”

Section 455(a) provides that a United States District Court judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” It is not easy to get a writ of mandamus recusing a judge. ‘Before the writ will issue, “the petitioner must satisfy ‘the burden of showing that [his] right to issuance of the writ is clear and indisputable.’ A petitioner for mandamus relief must also demonstrate that he has no other adequate source of relief; that is, he must show ‘irreparable harm.'” The court found that as a result of the close relationship between the United States Attorney’s Office and the New England Organized Crime Strike Force and the position of Stearns in the U.S. Attorney’s Office that the ordinary person would question his ability to remain neutral and therefore recused him from the case. The Court went out of his way to say that it had a high level of respect for Stearns and there was no evidence that he had been anything but neutral.


The losing party in a case before a state supreme court or a Circuit Court of Appeals may appeal to the United States Supreme Court if there is a Federal issue involved in the litigation or if the parties are from different states. The way to do so is to file a petition for a writ of certiorari. It takes the votes of four justices to agree to hear the appeal. If the Supreme Court decides to hear the case it grants the writ and sets dates for filing opening briefs.

On rare occasion, individual justices may write an opinion in support or in opposition to the granting of certiorari when they are in disagreement with the decision of the court or they may prepare a written comment about the case when they are in agreement with the court’s action. The latter happened recently in the Texas case of Calhoun v. United States. Justice Sotomayor, joined by Justice Breyer, issued a statement regarding the behavior of the Assistant United States Attorney, despite her agreement to deny certiorari.

Calhoun was convicted of participating in a reverse sting. He claimed that he had no knowledge that his codefendants planned to buy cocaine from undercover agents. The jury found otherwise. While cross examining Calhoun about his claim that he had no knowledge that a drug deal was going down the the prosecutor asked him, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

Calhoun who is African American, not only suffered from a prosecutor’s racist comments, attempting to prejudice the jury again him, but he also had to suffer from poor lawyering on the part of his counsel. His lawyer failed to object to the prosecutor’s statement. As a result the Supreme Court could only find error if “plain error” exists. But Calhoun’s counsel, before the Supreme Court, did not argue that “plain error” existed. Rather his counsel argued that either structural error or plain error occurred despite the lack of a showing of prejudice. However, since his counsel had failed to make these arguments before the Fifth Circuit Court of Appeals they were not ripe to be argued before the Supreme Court. As a result, Justice Sotomayor joined in the denial of the writ of certiorari.