The Fifth Circuit Court of Appeals reversed due to insufficient evidence that the defendant, Keith Moreland, knew that photographs of child pornography were located on his computer.

Keith’s wife Deana found an internet site with child pornography in the history of two computers that were kept in their living room and called the sheriff’s department.The only people with access to the computers were the Morelands and Keith’s terminally ill father, George. All users used the same password to log-on the the computers.

A police investigator found 112 picture which were possibly child pornography in the slack space (or orphan files) of the hard drive. These are files that have been deleted from the computer but are still available. The origin and the date of the download of files in the slack space are generally impossible to determine, Matthew Manley, a local police officer inspected the computers and testified about what he found. He was not offered as an expert in either computers or child pornography. He was unable to determine when the pictures were downloaded, where they were downloaded from or who downloaded them. Nor could he testify as whether the pictures were pornography or not.

The Fifth Circuit concluded

that the evidence was insufficient to support a finding beyond a reasonable doubt that Keith knowingly possessed the images in the computers because the evidence does not sufficiently demonstrate that a rational jury could find beyond a reasonable doubt that Keith had knowledge that the images were in the computers or that Keith had the requisite knowledge and ability to access them and to exercise dominion or control over them.

As a result the court reversed the conviction finding that there was insufficient evidence that Keith either knew that there was pornography on the computer or that he had the technical ability to retrieve the pictures. Both are necessary to convict one of possession of child pornography.

The Fifth Circuit, in United States v. Portillo-Muniz faced the question, this week, as to whether undocumented aliens are covered by the Second Amendment.

Armando Portillo-Muniz was charged with possession of a firearm by an undocumented individual in violation of 18 U.S.C. § 922(g)(5). He had a .22 caliber handgun in the center console of his vehicle.

The Court found that undocumented aliens are not covered by the Second Amendment. The Second Amendment, like the First Amendment and the Fourth Amendment refers to the rights of the people. The court held that the “people” does not include undocumented aliens. The Court pointed out that the Supreme Court in District of Columbia v. Heller which upheld the Second Amendment right to possess a gun referred to “law-abiding, responsible citizens to use arms in defense of hearth and home.” The majority opinion held that this does not applied to undocumented aliens who committed the misdemeanor of entering the country without papers.

Judge Dennis dissented from the majority’s holding. He pointed out that the Supreme Court in United States v. Verdugo-Urquidez interpreted the word “people” in the Fourth Amendment context as protecting aliens who “have come within the territory of the United States and developed substantial connections with this country.” Portillo-Muniz entered the country voluntarily. He worked steadily and with the exception of entering the country illegally he complied with the country’s laws. He would remand the case with instructions to the trial court to determine if 18 U.S.C. § 922(g)(5) violates the Second Amendment.

Cedric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll were convicted in separate matters of crimes involving crack cocaine. They applied to their respective courts pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction. Under this section inmates may apply for a sentence reduction, if following their sentencing, the United States Sentencing Commission reduces the guidelines for the offense of conviction. In 2007 the Sentencing Commission reduced by two levels the guideline for most crack cocaine offenses, in order to reduced the disparity in the law between sentences for crack cocaine and powder cocaine. The law gives judges the discretion to reduce sentences after reviewing the factors found in 18 U.S.C. § 3553(a). The section provides the factors a judge must consider in sentencing a defendant.

In resentencing the Court must follow a two step process. First it must consider the defendant’s eligibility under the statute and second it must consider the 3553(a) factors. In the cases of Henderson, McClune, and Kirkendall, all of whom received below guidelines sentences the judges on resentencing said that they had reviewed the 3553(a) factors at the time of sentencing and saw no reason to reconsider the sentence. Since each received a below guidelines sentence during the original sentencing the law allows the judge to give a similar reduction based upon the new guidelines but prior to using his/her discretion the Court must reconsider the 3553(a) factors. Therefore The Fifth Circuit remanded the matters to the trial courts for reconsideration of the factors.

Marcus Eugene Jacobs plead guilty to possessing stolen mail. As part of the plea agreement he agreed to waive his right to appeal. However an exception was allowed if the court upwardly departed from the guidelines, not requested by the government.

Jacobs’ guidelines were four to ten months. The government recommended seven months. In taking the plea the judge was very careful to make sure that Jacobs understood that he was waiving the right to appeal unless the judge granted an upward departure. But the judge did not discuss the possibility of a variance.

Under the Guidelines a three-part framework exists. First the court

(1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole

A variance is a sentence outside the guideline structure. It is based on 18 U.S.C. § 3553(a). which sets forth a number of characteristics that a court should take into consideration in sentencing. Subdivision 3553(a)(1) states “the nature and circumstances of the offense and the history and characteristics of the defendant;” At sentencing the judge pointed out Jacobs’ significant criminal history. Section 3553(a)(2)(B) lists “to afford adequate deterrence to criminal conduct;” and at sentencing the court pointed out the failures of shorter sentences in the past to deter criminal behavior.

Variances and departures are treated differently. Departures require the court to give prior notice of its intention to depart. Variances do not require notice. ¹

I am willing to bet that prior to signing the plea agreement Jacobs’ attorney discussed with him the nature of an upward departure but did not discuss the possibility of a variance. It would surprize me if Jacobs understood prior to entering into the plea agreement that the judge may vary from the guidelines. In this case the final sentence was 260 per cent of the upper guideline. Assuming, I am correct, the waiver cannot be considered “knowing and voluntary.” In this case a habeas for incompetence of counsel will probably follow.

This Guidelines are very complicated. A lawyer representing a defendant in a Federal case must go over any plea agreement with a fine toothed comb and make sure that the defendant understands every detail of the agreement. In this case the lawyer should have insisted that the agreement preserve the right to appeal if the sentence exceeded the guidelines instead of limiting the right to appeal to cases in which an upward departure was granted.

In a rare case the Fifth Circuit Court of Appeals reversed a conviction where the trial judge wrongly denied a motion to suppress evidence.

Corey Raney was driving on a two lane street. Due to gasoline shortages surrounding Hurricane Ike traffic was backed up in his lane by drivers attempting to buy fuel at a gas station. Two officers were providing traffic control but it is unclear if Raney saw them.. He attempted to pass the backed up vehicles. There was no on-coming traffic but one of the officers was standing in the empty lane. Raney was stopped by Houston Police Officer Rohan Walker.

After the car was stopped, Walker smelled marijuana and he thought he saw a marijuana cigarette fall to the ground. He ordered Raney out of the car and searched him, finding a .45 caliber Sig Sauer firearm in his waistband. A records search revealed that Raney was a convicted felon and was not allowed to have a weapon on him. He was arrested and the vehicle was searched.

Prior to trial he moved to suppress the evidence. He alleged at the hearing on the motion and again at trial that Officer Walker had no right to stop him.

To stop a vehicle a police officer must have probable cause that a crime has been committed. The government alleged that Reaney violated three traffic laws. First they alleged that he rode on the wrong side of the road. On this basis the trial court denied the suppression motion. But the appellate court pointed out that under Texas law it is permissible to ride in the left lane to pass vehicles or there is an obstruction in the lane. Second the government alleged that he failed to follow the officer’s orders when Walker told him to get back into the right lane. But there was no evidence he saw or heard the officer order him to get back into the right lane. Third, it was alleged that he drove recklessly. But he was driving 10 to 15 miles per hour. There was no traffic in the left lane and there is no evidence that the officer was in any way in danger as a result of Raney driving on the left side of the road.

On the appeal the government brought up two more reasons. ¹ They claimed that he was passing within 100 feet of the intersection. But the evidence at trial showed that Officer Walker who was between Raney and the intersection was 100 feet from the intersection and Raney was farther away. They also alleged that he failed to stay in one lane. But in this instance he was passing non-moving vehicles and that is legal under the law. ²

The Fifth Circuit reversed the conviction.

There was another issue raised on appeal. The United State attorney made a number of questionable argument in the closing argument. Since the Court reversed the decision base upon the Fourth Amendment issues it did not rule on the U. S. Attorney’s arguments. But it was clearly trouble by the arguments.

First, the prosecutor stated that “[t]he gun was loaded, a round in the chamber, ready to be fired. Bang, bang, bang.” This type of comment wrongly leads to an emotional response by the jury instead of an intellectual determination of guilt. Second, during closing argument the prosecutor accused Raney’s wife Jasmine, who testified at trial of calling Walker a lier. She did not and the judge upheld the defense objection. Finally the prosecutor asked the jury to decide whether the police officers had a motive to “tell something other than truth,” and suggested that the officers would not “put their careers on the line[,]” This is called vouching for a witness. The prosecutor who was not present at the incident cannot tell the jury that a witness is telling the truth.

The Sex Offender Registration and Notification Act (“SORNA”). is sure a full employment act for lawyers and judges. In the four and a half years since its enactment there have been numerous challenges to various parts of the act and we have not seen the end of it yet. SORNA attempts to insure that registration requirements are followed wherever a person required to register travels within the country.

Last week the Fifth Circuit Court of Appeals answered a number of questions about the act in United States v. Johnson. However as more circuits weigh in on various issues the splits become apparent and we can expect more questions to be submitted to the Supreme Court.

Johnson was convicted in Mississippi in 1995 of gratification of lust. ¹Gratification of lust is a sex crime requiring registration in Mississippi. Under SORNA, registration requirement follows you wherever you travel in the country.

He moved to Iowa and registered but he failed to register when he moved back to Mississippi in 2008. The following year he was convicted of failure to comply with SORNA

On appeal he raised seven issues: 1) lack of notice, 2) that SORNA exceeds Congress’ power under the Commerce Clause, 3) that giving authority to the Attorney General to decide whether to make it retroactive to cover acts occurring prior to its enactment violates the Non-delegation Doctrine, 4) “that the retroactive application of SORNA violates
the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to criminal prosecution for non-compliance, 5) that he cannot be convicted under the act because Mississippi has not enacted SORNA compliance legislation, 6) requiring the state to enforce Federal law violates the Tenth Amendment, and 7} the Attorney General violated the Administrative Procedures Act in developing regulations for the enforcement of the law on people convicted of sex crimes prior to the passage of the act.

Having considered some of the issues previously, the court only gave serious consideration to the last two issues. The Tenth Amendment by reserving certain rights to the states prevents the Federal government from directing the states to follow Federal law. However SORNA does not require the states to comply. By forfeiting ten percent of their Federal Criminal Justice allotment they can opt out of the program.

While the Fifth Circuit found that the Attorney General violated the Administrative Procedures Act by not waiting 30 days after publication of the regulation and by not obtaining comments prior to enactment of the regulations without good cause the court found the failure did not prejudice Johnson since the results would have been the same if the Attorney General had complied with the act.

Saadiq Ibn Shabazz was convicted and sentenced to 21 months imprisonment and two years’ supervised release ¹ for conspiracy to utter and possess counterfeit securities.

He violated his supervised release and the court revoked the release. It then sentenced him to two years in prison and another year on supervised release. He violated his second supervised release and the court gave him another two years in prison. ²

On appeal he argued that two years was the maximum supervised release for the crime and therefore he could not be given a second two year period.

Prior to 2003 18 USC § 3583(e)(3) stated “that a defendant ‘may not be required to serve more than’ an enumerated number of years in prison based on the class of the underlying offense.” But the PROTECT Act changed the law to read: “that a defendant ‘may not be required to serve on any such revocation more than’ the relevant term of imprisonment for the underlying felony.” The Fifth Circuit ruled that the only possible reason the amendment was to allow courts to was to to give the maximum sentence on each violation without worrying about the aggregate total of violations.

Section 3583(h) states that the court:

may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.

Shabazz interpreted this to mean that the aggregate sentence, for all violations of supervised release could not exceed the maximum sentence for the offence which in this case is two years. But the court held that the limit in the above sentence only affects the maximum that can be imposed for any one violation of the supervised release. Otherwise the 2003 amendment would be meaningless.

Virgilio Maldonado was sentenced to death by a Texas Court for murder. His counsel filed a petition for habeas corpus in Federal Court, claiming that he was mentally retarded. The Supreme Court ruled in Atkins v. Virginia that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment to execute the mentally retarded.

But the Supreme Court did not set parameters to determine who is mentally retarded. It left this up to the states to decide. Presumably if the states develop different definitions the Supreme Court will settle issue at some time in the future.

In Maldonado, last week,the Fifth Circuit Court of Appeals accepted the Texas definition. It require three factors: 1) significantly subaverage general intellectual functioning, 2) deficits in adaptive behavior, and 3) that the problem developed during the defendants developmental period. Furthermore, the Texas courts put the burden on the defendant by a clear and convincing standard to prove the elements.

Maldonado attacked the psychologist, Dr. George Denkowski, appointed by the state to test him. The psychologist did two basic tests. He performed the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III) and the Adaptive Behavior Assessment Scale (ABAS) The WAIS-III measured intellectual ability. A score below 70 is considered proof of mental retardation and the ABAS measures adaptive ability. But Denkowski’s method of interpreting the tests have been questioned. In other cases his interpretation has been excluded and he currently charged before the State Board for his unscientific methods of interpretation. He raises scores on the tests without scientific support and without legitimate measurements based upon unfounded criteria.

But the Court ruled that even without Denkowski’s report Maldonado failed to prove that he was retarded. His own experts were unable to provide WAIS tests of below 70 and the testimony regarding his adaptive ability did not show that he was unable to cope. He was able to hold jobs, write letters, file reports, and raise a family. As a result the Fifth Circuit upheld the Texas decision denying Maldonado’s petition for habeas corpus.

Jason Montes and Margarito Armijo were charged with participating in eight bank robberies in the Dallas area. They were convicted. Armijo was senenced to 4,692 months in prison and Montes to 4,705 months. (Yes, that’s nearly 400 years each!)

While there were several issues on appeal the only one worth discussing is Armijo’s claim that he was denied his Miranda rights.

In reviewing a district court’s denial of a defendant’s motion to suppress a statement given to the police, this court reviews factual findings, including credibility determinations, for clear error, and reviews legal conclusions de novo. Since the trial court held an evidentiary hearing on the matter where it could observe the demeanor of various witnesses it was in a better position to determine which witnesses to trust and which ones not to trust. That was particularly important in this case where their was contrasting testimony.

The police officers testified that Armijo did not clearly ask for an attorney during the interrogation and Armijo testified that he asked for an attorney. Under Supreme Court precedent an ambiguous or equivocal reference to an attorney does not result in the right to have a statement excluded at trial. The request must be clear and specific. The officers testified that Armijo signed a waiver acknowledging that at any time during the interrogation he could ask for an attorney. After answering questions the officers asked him to put it in writing. At that point he said something to the effect that “Maybe I should get an attorney” or “Do I need an attorney?” The trial court found the officers to be more credible than Armijo and the appellate court looking at the evidence in the light most favorable to the prevailing party in the trial court found the statement to be ambiguous and therefore the statement to be admissible.

In a case like this where it is a factual question the case is going to be won or lost in the trial court. Unless the trial court made a mistake as to the law an appellate court is unlikely to reverse a conviction. While appeals are filed as a matter of course after losing at trial expecting a better result on appeal is probably fruitless.

The Supreme Court declined to decide whether the statute of limitations has run on the conviction of James Ford Seale. A little used provision of the law allows a Circuit Court of Appeal to certify a question to the Supreme Court. The Fifth Circuit Court of Appeals certified a question to the Supreme Court on whether or not Seale was tried within the statute of limitations.

Seale was tried for the 1964 kidnapping by members of the Ku Klux Klan of two African American young men. Under Federal law there is no statute of limitations for capital offenses. Other felonies carry a five year statute of limitations. In 1964 kidnapping was a capital offense. While it is a capital crime now if it results in murder for most of the time between 1964 and the present it was not a capital crime. Thus the question that the Fifth Circuit asked the Supreme Court is whether the 1964 statute of limitations applies or the 2007 statute of limitations.

In 2007 Seale was tried and convicted for the Ku Klux Klan murder of Henry Dee and Charles Moore. Seale appealed to the Fifth Circuit. A three judge panel reversed the conviction on statute of limitations grounds. The panel did not decide other questions raised on the appeal since it reversed the conviction and sent the case back to the District Court. But an en banc decision deadlocked 9 to 9, which reinstated the District Court’s conviction. The en banc court instead of returning the case to the three judge panel for a decision on the other issues raised on appeal certified the question of the statute of limitations to the Supreme Court.

Dee and Moore disappeared in the heat of Mississippi’s Freedom Summer in 1964 when civil rights workers descended upon Mississippi to register African American voters. Even though Dee and Moore were not involved in the civil rights movement or in the registration of voters they were seized by a group of Ku Klux Klan, kidnapped and murdered. But the police and the district attorney were unable to prove the case against Seale or the others in the group. The only witness was a confidential informant who was afraid for his life if he testified or if his name became known publicly. The arrest was only possible after a reporter for 20/20 found the informant, Ernest Gilbert and encouraged to go public with his detailed knowledge of the murder.

Of course after the Fifth Circuit hears the other questions on appeal the case is likely to return to the Supreme Court on direct appeal.

It may be politically incorrect but I have a problem with a prosecution that occurs 43 years after the crime. We are not the same people that we were 43 years ago. Incarceration forty-three years after the crime is hardly going to prevent further crimes. After all few crimes are committed by 72 year olds. No matter how hard we try memories fade and witnesses die in a 43 year period. A trial 43 years later does not have a rehabilitative effect. The only reason to have a trial is to punish the wrong doer and that has little benefit when you are talking about a sick senior citizen.