Eduardo Dávila-Nieves (Dávila) was convicted attempting “to induce a person he believed to be a minor to engage in sexual activity.”

He made telephone contact with a thirteen year old girl, Y. G. Eventually their telephone conversations turned to sex. He attempted to meet her but her parents found out about the conversation and reported the conversations to the authorities. After this happened Y.G. told Davila that her parents took away her cell phone and that in the future he would have to relay messages through her fourteen year old friend, “Vanessa.” “Vanessa,” of course, was an undercover agent.

The conversations with Y. G. and later with “Vanessa” lasted for a year with breaks of two months and seven months. Each of the breaks were ended when “Vanessa” initiated a phone call to Davila. During the conversations he admitted to having pedophilia and he was afraid that he would get arrested. At times he came on strong. At other times he appeared to back off. But after a year there was an agreement to meet “Vanessa” and Davila was arrested.

On appeal the First Circuit Court of Appeals denied his sufficiency of the evidence argument. The elements of the offense are:

(1) used a facility of interstate commerce (2) to attempt to, or to knowingly, persuade, induce or entice (3) someone younger than eighteen years old (4) to engage in criminal sexual activity.

Davila argued that since the government did not enter into evidence the Puerto Rican statute that he was accused of violating there was insufficient evidence of the fourth element of the offense. But since the judge read the offense to the jury, instructed them thereon, and took judicial notice of the statute this is a rather weak argument. Certainly it is the duty of the judge to instruct the jury on the law as it relates to the case but there is no duty to enter a paper copy of the offense into evidence.

Davilla argued that since the judge took judicial notice of the statute the judge was required to instruct the jury that it need not find the statute to be true. It is true that when a judge takes judicial notice of a fact the jury does not have to accept it. But when the judge takes judicial notice of a statute it would be absurd to allow a jury to disbelieve the judge.

The final and perhaps strongest issue is the refusal of the court to give an entrapment instruction. There are two elements to entrapment. First, it requires that the idea for the crime originate with a government agent and second it requires that the defendant would not have committed the crime without strong encouragement from a government agent. Here, despite the government’s initiation of the contacts after two breaks in communication the court found that there was not entrapment. It found that regardless of the government’s re-initiation of the crime, Davila was disposed to commit the crime.

I guess what bothers me most about the crime is that Davila is going to be released from prison some day. He has pedophilia. At this point pedophilia is incurable. Those with pedophilia have very litttle control over their pedophiliac urges although they need not always act upon them. Do we really want to put people into prison for having an illness. But then on the other hand how do we protect our children? Not all pedophiliacs act upon their desires for sex with young children. But without treatment Davila will problably be just as daangerous when he gets out of prison as he is today. Prison will not change the situation. What he needs is treatment. Any treatment inside the prison is probably meaningless since he will not have a chance to practice abstaining from pedophile acts.

The First Circuit Court of Appeals upheld the conviction of Thomas Kasenge for aiding and abetting the theft of his own identity. Kasenge’s housemate, Pius Mayanja visa expired and he was living in this country without proper immigration documentation. As a result he was unable to find work. Kasenger allowed Mayanja to use his driver’s license and social security card in exchange for a small fee.

Kasenge was charged with aggravated identity theft. He argued that he could not be convicted because he consented to Mayanja using the license and social security card.

The statute reads:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Kasenge argued that since he allowed Mayanja to use his identification Mayanja had lawful authority to use the identification and therefore it was not illegal. But the Court, citing United States v. Yeifrin Rafael Ozuna-Cabrera ruled that the statute “does not require theft, or any other illicit method of procurement, of the means of identification.”

Kasenge also argued that since “any transfer, possession, or use of another person’s means of identification during and in relation to a § 1028A(c) felony is always illegal, it could never be done with lawful authority under our interpretation of § 1028A, thus rendering the phrase “without lawful authority” redundant.” However the court found numerous examples of “transfer, possession, or use of another person’s means of identification” to be legal such as the transfer of identification to an employer to allow an employer to process a job application. Thus it rejected Kasenge’s argument and upheld his conviction.

The unspoken statement is that since aggravated identity theft does not actually require theft of documents but only the “transfer, possession, or use of another person’s means of identification” of another person’s identity documents one can aid and abet another person’s use of your own documents.

Brian Rogers, a non-commissioned Naval officer at the Brunswick Naval Air Station, sold a computer he no longer needed. But he failed to remove the child porn from it. The buyer reported the pornography to the local police who initiated an investigation. To assist they brought in the state computer crimes unit and the Naval Criminal Investigative Service (NCIS).

A search warrant was obtained for Roger’s house and plans were made to serve it while he was on the base. His commanding officer agreed to order him to go home at the scheduled time for the search.

Once he got home, he was interviewed by the local police and the state computer crimes unit. They told him that he was not going to be arrested that day and they did not read him his Miranda rights. After some time he agreed to go the police station with them where they continued the interrogation. Eventually an officer from NCIS joined the interrogation, first giving him the military version of the Miranda rights.

Under Miranda a statement generally cannot be used against a defendant unless it is the result of interrogation occurring while the defendant is in custody. Here there were basically three statements. The first occurring at the house. The second at the station by the police officers and the third by the NCIS officer after giving Rogers his Miranda rights.

The primary question here was which, if any of the three statements were made while Rogers was in custody.The First Circuit in an oppinion written by retired Supreme Court Justice David Souter ruled that the first statement was made while he was in custody since he had been ordered by his commanding officer to go home and presumably to cooperate with the police when he got there. The second statement was basically a continuation of the first and was also done without the benefit of Miranda warnings. While the NCIS officer gave the equivalent of Miranda warnings it was not sufficiently distinguished from the first two statements. Rogers had already given two statements and it is doubtful that anything said in the third had not already been said. Furthermore the NCIS officer told him that she was not in the command structure and therefore she could not countermand his officer’s order,

The Circuit Court remanded the case to the District Court to determine if sufficient curative action occurred to distinguish the statements. If not the conviction must be reversed.

José A. García-Ortiz was convicted on three counts: Hobbs Act robbery; aiding and abetting the unlawful carrying and use of a firearm during and in relation to the robbery, and aiding and abetting the death of an accomplice in the commission of an armed robbery. He raised a number of issues on appeal, the most important of which was that convicting him of both using a gun in the commission of an armed robbery and aiding and abetting the death of an accomplice in an armed robbery violated the Fifth Amendment prohibition on double jeopardy.

The unlawful use of a firearm during a robbery is a lesser included offense of using a gun during the commission of an armed robbery resulting in the death of an accomplice. A lesser included offense is one that has all of the elements of the greater offense. All of the elements of using a gun during an armed robbery are also elements of aiding and abetting the death of an accomplice during an armed robbery. Of course the greater offense, aiding and abetting the death of an accomplice during an armed robbery has the additional element of the death of an accomplice. In other words anyone who commits the offense of aiding and abetting the death of an accomplice during an armed robbery necessarily also commits the offense of aiding and abetting the use of a firearm during an armed robbery.

Thus Garcia-Ortiz argued that he was convicted twice for the same offense. The First Circuit Court of Appeals did not rule directly on the double jeopardy issue. But it found that Congress did not intend to punish individuals twice for the same crime. Under Rutledge v. United States there is a presumption that Congress did not intend to punish for convictions on both offenses. Since the Court could find nothing to the contrary in the charged offenses, it remanded the case to the trial court to dismiss the lesser offense.

After a gang shooting, officers staked out the hospital where the victim was dying. They observed a car with four people, at least three of whom they recognized as members of the gang. Fearing that the passengers in the car might try to get revenge for the shooting, they followed the vehicle. Together with another police car they pulled over the gang members for speeding. The men in the car were noticably nervous. They were breathing heavily. ¹ The officers ordered the men out of the vehicle and performed pat searches on them but found nothing.

They searched the vehicles and initially found nothing. Officer Scott O’Brien arrived on the scene. He had undergone advanced training in finding hidden compartments in vehicles. He observed a magnet on the dashboard. Magnets are often used to open metalic hidden compartments. He noted that the tail pipe had been tampered with. Within five minutes of beginning his search he found a loaded handgun and cocaine in the front seat console. Melvin McGregor, the driver of the vehicle was arrested.

At trial he moved to suppress the gun and the cocaine on Fourth Amendment grounds. He claimed there was not probable cause to search the vehicle and that the initial stop was a pretext. ² The motion was denied and he appealed.

Several issues were raised on appeal regarding the search of the vehicle. First McGregor objects to the duration of the search. The First Circuit found that while the actual duration of the search is somewhat foggy and over an hour passed from the time of the search to the time of the booking, Officer Brian Smigielski testified that the actual search lasted only five minutes and the appellate court is limited to viewing the facts in such a way as to uphold the findings of the trial court. Since the trial court denied the motion to suppress, the appellate court reasons the trial court must have accepted Smigielski’s testimony on the issue.

Second, McGregor challenged the scope of the search. The scope was limited to finding weapons that might endanger the officers. Upon stopping a vehicle, the police may pat search the passengers and perform a limited search of those parts of the vehicle within the reach of the passengers where weapons may be found if they have reasonable grounds for suspecting that the detainees are dangerous. Here the court found that considering the facts that the passengers were nervous, that a shooting had recently occurred, that at least three of the people in the car were gang member, that gangs often carry out revenge shootings, that the four had met at the hospital, and that they left the hospital in a hurry the officers who had considerable experience investigating gang activity could legitimately believe that a gun would be found in the vehicle. Thus the scope of the search and the seizing of the gun in the front seat console was necessary to protect officer safety.

While any individual factor may not have provided a reasonable suspicion to search the vehicle, the court found that the totality of the circumstances justified the search and it affirmed the conviction

Under Federal law it is not necessary to hold a hearing on motions to suppress evidence unless their is a factual dispute that can not be settled without a hearing. In U.S. v. D’Andrea the First Circuit Court of Appeals vacated a conviction and remanded the case to the trial court for the court’s denial of a motion to suppress without a hearing.

Kendra D’Andrea and Willie Jordan were charged with child abuse. D’Andrea accidentally sent photographs showing sexual abuse of her child to the mother of Jordan’s child in California instead of sending them to her boyfriend, Jordan. Apparently it was her practices to take sexually inappropriate pictures, post them on a limited access web page, and send them to Jordan.

When the mother of his child, identified as the “Tipster” in the appellate decision got the pictures she called the anonymous tip line run by the Massachusetts Department of Social Services (DSS). The Tipster helped DSS access the site and DSS agents provided copies of some of the pictures to the police. D’Andrea and Jordan were indicted and moved to suppress the evidence on Fourth Amendment grounds. The District Court denied the motion without a hearing.

The prosecutor put forth three reasons to justify the search. First, they claimed that since the Fourth Amendment only governs searches performed by governmental agents, the initial search by the Tipster was legal and nothing more was obtained by the Social Services search. ¹ Second, they claimed that exigent circumstances existed allowing the search. Third, they argued that the evidence would have been discovered whether or not DSS illegally searched the site and therefore the illegal search was immaterial.

The court found that there was insufficient evidence to support these theories and a hearing was necessary to determine if the Fourth Amendment was violated. As to the first claim it is necessary for the government to prove that the DSS search did not exceed the scope of the private scope. The record did not provide any evidence of whether or not the DSS search was more intrusive than the Tipster’s search. Therefore without an evidentiary hearing the private search doctrine does not justify the DSS search.

As to the second reason given by the government, exigent circumstances, their was no evidence of imminent danger to the child. There was no evidence that the abuse was continuing or that more would happen in the future.

As to the claim of inevitable discovery the appellate court also found insufficient evidence on the record to show that the government would have obtained the information without the illegal search. Therefore the court ordered the case remanded to the trial court for an evidentiary hearing on whether or not the search of the website was legal or whether, if it was not legal, the evidence would have been discovered in any case.

Russell E. Booker and Michael Wyman plead guilty in separate domestic violence cases to assault in Maine. Both cases occurred some years ago. More recently Booker accidentally shot a hunting partner and Wyman shot a bullet into the air during a domestic dispute. Both were indicted and convicted in Federal court for possessing a weapon after a misdemeanor domestic violence conviction.

Booker and Wyman appealed to the First Circuit Court of Appeals alleging that since Maine’s assault law does not require a specific intent to commit a crime the convictions cannot serve as a basis for the Federal convictions. The state statute allows a conviction for recklessly assaulting someone. They also alleged violations of their Second Amendment right to possess a gun.

The Federal statute banning possession of guns (18 USC 922(g)(9) by those convicted of misdemeanor domestic violence reads:

That it shall be unlawful for any person . . . (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The First Circuit rejected the defendants argument that the state statute had to be an intentional crime. Nowhere in the Federal statute does it require that the domestic violence statute have a particular mens rea or intent. Therefore the court ruled that Congress in passing Section 922(g)(9) did not mandate a mens rea and therefore the convictions are valid.

Pointing to Heller in which the Supreme Court recognized the Second Amendment right to possess a gun the court pointed out that the Supreme Court recognized that certain categories of people could be banned from possessing guns. The First Circuit held that due to the significant number of people killed with guns in domestic violence disputes that Congress can prohibit misdemeanants convicted of domestic violence from possessing guns.

The irony here is that while looking at the intent of Congress in ruling that a particular mens rea is not necessary for a conviction under Section 922(g)(9), the Court did not look at the intention of the First Congress which passed the Bill of Rights. Certainly the first Congress did not intend to limit the ability of misdemeanants from possessing weapons. It is unlikely that domestic violence was even a crime in 1789.

Law enforcement officers got an arrest warrant for Jeanine Daley in Brockton, Massachusetts. An informant told them that she recently saw Daley at 63 Menlo Street, a known sober residence and that Daley was hanging out there. The residence was a three story single family house with a number of non-related individuals living in it. Though the warrant had another address on it two officers went to the address where they confronted Jeffrey Cicerano, who’s name was on the lease. When Cicerano denied them entry they threatened to kick down the door. Cicerano opened the door to talk to the officers. The officers rushed past him into the residence. They ordered Cicerano to gather the residents of the house together so that the officers could question them. While Cicerano was gathering everyone together the officers saw James Werra, one of the residents in a room adjoining the foyer. They saw a pocket knife clip attached to one of Werra’s pockets. They removed the knife and pat searched Werra, finding a gun. They arrested him. He challenged the arrest on the basis that the officers neither had probable cause to search him and that their entry into the residence was illegal.

Werra rented the third story from Cicerano but when there was too much partying on the third floor he slept on a couch in the living room. Together with his brother he had moved furniture into the living room.

The government claimed that Werra did not have standing to challenge a search which occurred in the Foyer since he rented the third floor. The question before the First Circuit Court of Appeals was whether the residence was similar to a single family house where each resident has standing since they share the entire house or a multi-resident apartment house where residents have limited standing based upon the area they rent.

The test is that individuals only have standing to challenge searches of areas where they have an expectation of privacy in the area and it is an expectation that society finds acceptable.

The appellate court upheld Werra’s expectation of privacy. First it found no cases where an expectation of privacy was denied to the residents of a single family house. Second, it found that Werra had access to most of the residence including the living room where he would sleep on the couch. The court noted that instead of each individual paying rent to the owner, Cicerano rented the house and some of his friends lived there and helped pay the rent. Overall the court found that the residents acted more like a family than like apartment dwellers. They share space and often used community spaces together as a group. Therefore it found that Werra had the ability to exclude non residents from the building and that society recognized his privacy right in the building.

The Court had little trouble finding the search to be illegal. While there might be some question as to whether the officers had probable cause to believe that Daley lived at the residence it found that they had no evidence that she was at the residence at the time they entered the residence without consent. Since Werra had a privacy interest in the entire house including the foyer and since the search was illegal it reversed the trial court’s denial of his motion to suppress and found him not guilty.

Stiven F. Polanco was convicted in the District Court for Rhode Island of various heroin and weapons charges. He appealed alleging inter alia ¹violations of the Fourth Amendment.

David Contreras made a number of heroin sales to an undercover agent. ² Each sale occurred as the same mall in Providence. Polanco was present at the sales and drove Contreras to the mall in Polanco’s red Toyota Camry.

Finally the task force decided to arrest them but it was afraid to do so at the mall since someone might get hurt. The agents moved the plans for the final sale to a parking lot in Warwick. They arrested and searched Contreras and Polanco, but they did not find anything. Then they searched the vehicle, finding a hidden compartment with heroin and a gun.

After they were indicted Polanco challenged the search, citing Gant v. Arizona. One of the exceptions to the Warrant requirement is for searches performed incident to a lawful arrest. In Gant the Supreme Court limited the exception where an automobile is searched to searches where the arrestees have access to the vehicle and can destroy evidence or where it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” But what Polanco ignored was that the search was not justified by the search incident to a legal arrest exception to the search warrant requirement. Rather it was justified by another exception. Under the automobile exception, an automobile can be searched anytime there is probable cause to believe that evidence of a crime will be found in the vehicle. ³ Since automobiles are mobile the courts feel that it is not reasonable to make law enforcement officers get a warrant while the car may be driven away.

The appellate court had no problem finding that the agents had more than sufficient evidence for a finding of probable cause to search the vehicle. Not only was Polanco present at the time of the sales, but his car was used. Contreras and Polanco made numerous calls to each other around the time that Contreras was arranging each sale. An expert testified that someone who was not involved in the sale would probably not be allowed to be present and that after the sale Contreras and Polanco appeared to examine an unknown item together. This, according to the First Circuit Court of Appeals easily provided probable cause.

The First Circuit Court of Appeals reversed two District Court decisions excluding cooperating witnesses from testifying based on the alleged failure of the government to provide Brady discovery. The Supreme Court held in Brady v. Maryland that the government had a duty to provide the defense with all exonerating evidence. By exonerating evidence the Supreme Court meant evidence that is “favorable to the accused and material to guilt or punishment.” Specifically it requires the provision of evidence that is either exculpatory or impeaching in nature.

Joseph Prochilo is charged with possession of a firearm by a convicted felon and Elvis Guerrero is charged with attempting to buy cocaine for purpose of sale in separate cases. The cases against both men rely primarily upon cooperating witnesses. In each case the government provided initial Brady discovery relating to the cooperating witnesses. Defense counsel in both cases moved for further discovery.

Prochilo requested:

(1) details regarding the witness’s work with the United States Secret Service, the Essex County Sheriff’s Department, the DEA, and the FBI; (2) information regarding the other ATF cases on which the cooperator worked; (3) the witness’s cooperation agreements with government agencies other than the ATF; (4) a description of other firearms seized by the government as a result of the witness’s cooperation; (5) information about the cooperator’s contacts with other government agencies as they related to other matters or other investigations; and (6) a list of all benefits the witness received as a result of these contacts.

Guerrero requested:

to produce all information in its possession, custody, or control, regarding the witness, and identifying several categories of information.

Prochilo said that the requested information might reveal that the cooperating witness is “flawed”, that the discovery could help substantiate an entrapment defense, that many of the cases that the cooperating witness handled were thrown out requiring an explanation, and because only his counsel, not the government or the district court, will be able to judge what evidence is both favorable to him and material.

Guerrero claims that the discovery is needed for impeachment purposes.

The First Circuit reversed the District Court decisions in both cases. It held that for the defendants to obtain a court order for Brady material beyond what the government provides the defense must make specific requests for specific items and give specific reasons why the discovery is necessary. “[T]he defendant should be able to articulate with some specificity what evidence he hopes to find in the requested materials, why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”

The problem with this is that you are asking defense counsel to request specific items from the prosecution’s file. If the defense knew what was in the file the defense would not need to ask for discovery. It is the basic requirement of due process and fairness that originally led the Supreme Court to require discovery of exculpatory evidence that is violated when you require the defendant to list specific items out of the government’s file so that he/she can use the items to impeach the cooperating witness.