Theodore J. Schaefer was convicted of possession of child pornography. He was sentenced to 97 months in prison and 10 years of supervised release. On appeal he challenged two conditions of the supervised release, Specifically he challenged provisions stating:

The defendant shall have no contact with children under the age of 18
(including through letters, communication devices, audio or visual devices, visits, electronic mail, the Internet, or any contact through a third party) without the prior written consent of the probation office.

The defendant is prohibited from places where minor children under the age of 18 congregate, such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools without the prior written consent of the probation office.

Schaefer challenged the conditions on the grounds that they violated his constitutional right to parent his children and that the conditions “are not narrowly tailored, or reasonably related to his offense, his history and characteristics, or protection of the public.” He vigorously argued that his conviction was for possession and not distribution of child pornography. ¹ The Eighth Circuit Court of Appeals found that the trial court was within it discretion in imposing the special conditions. Special conditions

must be reasonably related to the nature and circumstances of the offense of conviction, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical, or other correctional needs. . . Second, a special condition also must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, to protect the public from further crimes of the defendant, and to provide for the defendant’s educational, vocational, medical, and other correctional needs. Finally, a special condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. In fashioning a special condition of supervised release, a court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.

The Court found no interruption in the parenting process since Schaefer’s children would be over eighteen by the time he got out of prison. Furthermore it found sufficient evidence in the file to support the special conditions. At one point Schaefer talks about selling a friend’s daughter. He also wanted to trade the pornography and would have done so except for a computer glitch. As a result the appellate court upheld the special conditions, noting that the trial judge maintained jurisdiction to vary the conditions as necessary.

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.

Richard Christy was convicted of possession of an unlawful firearm and sentenced to 204 months in the Federal prison. At trial Richard Babcock testified for the government that Christie and James Wulff attempted to sell him firearms. He refused the offer and called the police. On the other side two roommates of Christy testified that he was at a bar with them at the time of the alleged offer.

Christy’s lawyer asked the trial judge to give the standard Eighth Circuit alibi instruction. The Circuit’s instruction are not mandatory and the trial judge refused to give the instruction.

Christy appealed the conviction on the basis that the court denied him the right to have an instruction on the theory of his defense. A defendant has the right to an instruction regarding his/her defense theory if it ” is timely requested, correctly states the law, and is
supported by the evidence.” But in this case the appellate court agreed with the trial court that the general instructions on the need for proof beyond reasonable doubt and the burden of proof sufficiently covered the subject and counsel had sufficient opportunity to argue the alibi evidence. As a result the Eighth Circuit upheld the conviction.

The Department of Homeland Security learned that there was pornography on computers at Terry Boll’s residence. They got a search warrant. They discover that seven people live in the house and there are ten computers. Eventually they learn that there is child porn on three of the computers and that two of these computers belong to Boll. ¹ This should be the end of the case. There is no way the government is going to be able to prove beyond a reasonable doubt that Boll possessed the pornography. Any criminal defense attorney worth his/her salt can convince a jury that there is a reasonable doubt that someone else put the pornography on the computers even if boll owned them. ² t is unlikely anyone will be charged.

But Boll apparently has not listened to enough police shows on TV. If he had he would have heard the police give the Miranda warning regularly. He seems to know that anything he says can be used against him. ³ Just the same, he answers the agent’s questions:

Agent Scherer: I asked him if he had an explanation about why there was child pornography on his computer.

Government: How did he respond?

Scherer: He replied I guess you caught me.

Government: How did you respond to that?

Scherer: I asked him further questions about how the child pornography got on there, and he stated, well, they are my computers, aren’t they.

Case lost. Not only did Boll lose the case but his attorney had the nerve to argue insufficiency of the evidence on appeal. His answers to the questions gave the government all it needed to convict.

Generally the police won’t ask any questions unless they need the information to charge a crime or get a conviction. Often if you refuse to answer police questions they walk away without even charging you. But by answering the questions you give them the information they need to charge you or to get a conviction.

The Supreme Court ruled, yesterday, in Pepper v. United States that following an appeal that requires a resentencing the trial court can consider the defendant’s post trial rehabilitation.

Jason Pepper plead guilty to participating in a methamphetamine conspiracy. Although the guidelines were 97 to 121 months the court sentenced him to 24 months based upon his giving substantial assistance to the government. The prosecution only recommended a 15 per cent reduction and it appealed to the Eighth Circuit Court of Appeals. The appellate court granted the appeal and ordered the trial court to resentence Pepper.

By the time of the resentencing Pepper was out of custody. He testified that he was going to a junior college and that he had made straight A’s. He also had a job where he was doing quite well. His father testified that he had not seen Jason for five years prior to his conviction but that Jason was more mature now and that they were getting along well. His parole officer also testified that Jason was doing well and that 24 months satisfied the goals of incarceration. Furthermore while Jason was in prison he completed a 500 hour drug program and he was no longer using narcotics.

The Court again sentenced him to 24 months based upon a 40 per cent reduction from the guidelines for substantial assistance and a 59 per cent reduction for inter alia post sentencing rehabilitation. The government again appealed. The Eighth Circuit again reversed finding that use of post conviction rehabilitation is inappropriate.

On the third sentencing he was sentenced to 65 months and he appealed. The Eighth Circuit affirmed and the Supreme Court granted certiorari. It sent it back to the Eighth Circuit for consideration of Gall v. United States, 552 U. S. 38 (2007). The Eighth Circuit found Gall inappropriate and returned the case to the trial court for resentencing. He was again sentenced to 65 months and appealed. The Eighth Circuit affirmed and the Supreme Court again granted certiorari.

This time it ruled that there is a long history of allowing trial judges to use a broad range of evidence in sentencing and 18 USC 3577 states:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Despite the fact that 18 U. S. C. §3742(g)(2) limits evidence at a resentencing to the evidence considered at the original sentencing the Supreme Court found that evidence of rehabilitation can be used at resentencing. Section 18 U. S. C. 3742(g)(2) along with the guidelines was part of the Sentencing Reform Act of 1984. While the mandatory nature of the guidelines and some sections were found unconstitutional in Booker the Booker Court did not discuss Section 3742(g)(2). However the same reasons apply and Section 3742(g)(2) can lead to unconstitutionally high sentences and therefore it must be found unconstitutional.

But one has to wonder if evidence of rehabilitation can be used to reduce the sentencing on resentencing after an appeal why not allow a defendant, after they have completed a significant part of their sentence, to apply for a reduction if they show evidence of rehabilitation. Why not allow rehabilitated convicts to return to court while completing their sentence or while on supervised release to show that they have been rehabilitated and no longer need to be incarcerated or under supervision? If they are no longer likely to reoffend and they are no longer a danger to society they should be released. This is particularly true if they can show that they have learned coping and employment skills that will allow them to survive without committing future crimes. By shortening incarceration periods it will also save tax dollars. This will give convicts a considerable impetus to get job skills, stop using drugs, and become rehabilitated. Eventually they will be released anyway and if they can prove rehabilitation we will all be safer.

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota.

Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded and he was resentenced. When he was resentenced the court enhanced his sentence for using a dangerous weapon and in the current appeal he challenged the use of the enhancement.

As a result of the enhancement he was sentenced to 352 months. Sometimes it seems like it’s not worth appealing but the appellate court ruled that the trial court was within its discretion to add the enhancement on resentencing even though it had not been originally used.

As to Flint Thomas Red Feather the trial court, in applying the guidelines, used a guideline for one who conspires to sell between five and fifteen kilograms of cocaines and sentenced him to 151 months. Red Feather argued that he only sold 3 kilograms 14 ounces before he moved off the reservation and withdrew from the conspiracy. But the appellate court ruled that the question was not how much cocaine Red Feather sold but rather how much it was foreseeable that he would sell during the pendency of the conspiracy. Looking at it this way the appellate court agreed with the trial court that he should be sentenced as if he had sold five kilograms.

Jamaal Williams plead guilty to possession of a firearm by a convicted felon. A semiautomatic firearm was found and he was charged with possession of the weapon.

The prior conviction occurred in 2002. He was arrested in 2002 after the vehicle he was driving was reported stolen. After he was handcuffed the police car burst out in flames and in the commotion Williams attempted to escape. He was soon caught.

The Presentence Report (PSR) and the trial court set a base offense level of 22 on the basis that the prior conviction for attempted escape was a crime of violence. In determining whether a crime is a crime of violence a court must first look at the statute as a whole and determine whether it penalizes violent behavior. The Nebraska statute under which Williams was convicted penalizes both escape and the failure to return from a leave from a penal institution. The court is allowed to consider the statute and certain neutral court documentsion determining whether the specific incident lead to Williams’ arrest was a crime of violence. Specifically it cannot consider the police report or any document based upon the police report. In this case the trial court based its information on the PSR which was based upon the police report and therefore unuseable to determine the violent or nonviolent nature of the prior conviction. Under Supreme Court precedent, escape from a penal institution is a crime of violence and the failure to return after a leave of absence is not a crime of violence.

When a statute governs both violent and nonviolent behavior “a modified categorical approach” is used. Since the “the charging document, the terms of a plea agreement, jury instructions, or comparable judicial records” do not specify what behavior the plea was based upon the court must find that it involved nonviolent behavior. As a result the Eighth Circuit Court of Appeals remanded the case for resentencing.

Arkansas Department of Community Correction Officer Craig Robie went to to a hotel in Fort Smith where he had heard one of his parolees, David Oteri was dealing drugs. They saw him enter and leave the hotel twice. When Officer Robie, accompanied by police approached Oteri he ran. When they caught him he had a large quantity of methamphetamine on him and he said he was dealing with DA in room 416. The only drug dealer Robie and the police knew with the initials of DA was Donnell Alston. As the officers entered the hotel they saw Alston leave. They detained him. When they checked at the desk they found out that room 416 was rented by Angela Groves. They went to the room and got Groves’ permission to search the room. They found more narcotic and Groves told them that the drugs belonged to Alston. They arrested Alston.

After he was indicted Alston moved to suppress the evidence as the fruit of an illegal detention. But at the time of his arrest he was on parole. Conditions of his parole included that he not associate with felons or people involved in crime and that he not change his address or sleep away from his approved residence without approval from his parole officer.

Under Arkansas law, parolees are subject to arrest if a police officer or a parole officer has a reasonable suspicion that the parolee is violating the terms of his/her parole. A reasonable suspicion is considerably less than probable cause. The court ruled that the fact that Oteri said that he was dealing with DA and that Oteri was a convicted felon provided a reasonable suspicion that Alston was associating with a convicted felon. Furthermore, Alston admitted to staying at the hotel, a violation of his parole.

As a result Robie had a reasonable suspicion that Alston was in violation of his parole conditions. Under the Federal Constitution parolees are considered to have waived their Fourth Amendment rights against illegal search and seizure. In any case Groves rented room 416 and she gave the officers permission to search the room.

Conservation Officer Jeremy King cited Dale Thurman for illegally baiting deer on property that his father owns. The property had a two story house on it with the address 1025 Zeller Avenue and a mobile home with the address 1035 Zeller Avenue. Thurman told King that he lived in the mobile home. After being cited Thurman asked King if he could use pistols to hunt deer. King told him he could. Thurman said he had pistols and pointed towards the two story house. King later learned that Thurman was a convicted felon and could not legally possess the pistols. He got a warrant for “1035″ Zeller, which the affidavit wrongly claimed was the two story house. In the affidavit it said that Thurman possessed “1035″ Zeller without giving any basis for the statement.

At trial and on appeal to the Eighth Circuit Court of Appeals Thurman argued that the magistrate did not have probable cause to issue a warrant for 1025 Zeller.

Of course the question is not whether Thurman lived at 1025 Zeller ¹ Rather the question is whether the affidavit exhibited probable cause to search 1025 Zeller. The Eighth Circuit said it did. Thurman’s pointing to 1025 Zeller when he told King that he had pistols apparently was sufficient cause to search the residence.

Thurman also argued that the affidavit did not particularly describe the place to be searched, a basic requirement under the Fourth Amendment. It described the residence as “the two story framed residential dwelling and outbuildings of 1035 Zeller Ave. located approximately one & two thirds mile north of Hwy. 96 on Zeller Avenue”. The Court found that even though the actual address was 1025 Zeller, the description provided sufficient guidance to the searching officers that they knew which residence to search and therefore it met the Constitutional requirements.

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