The issue of criminal contempt was raised in a case before the Circuit Court for the District of Columbia.

The defendant ¹ was convicted of second degree murder and sentenced to twenty-six years imprisonment followed by five years of supervised release. Following the sentencing the court held a hearing and sentenced him to an additional three years since the murder was a violation of a supervised release in a prior drug case. At the end of the hearing the defendant said “Fuck y’all” so that the judge and everyone else in the courtroom could hear him/her. The judge immediately sentenced the defendant to one year for criminal contempt, consecutive to the murder and drug sentences. A judge can summarily punish contempt if it is done in the judge’s presence and the judge witnesses or hears the contempt.

“Criminal contempt includes misbehavior of any person in [the court's] presence or so near
thereto as to obstruct the administration of justice.” The defendant appealed. He/she claimed that, while, he/she misbehaved, he/she did not obstruct justice and if he/she obstructed justice he/she did not do it with the required intent to do so. The defendant claims that he/she did not obstruct justice because the profanity was issued after the hearing was over. The court found that it is immaterial when the statement was said.
Whether it was during the hearing or after the hearing it showed disrespect for the court and therefore the judge was correct in finding contempt.

In support of the court’s finding the Circuit Court quoted the First Circuit Court of Appeals’ statement that:

One must appreciate that courtrooms, especially in criminal cases, are theaters of extreme emotion—stoked by the facts of the alleged crimes, the tensions of striving lawyers and hostile cross examination, and the fearsome stakes.Every trial judge knows how easy it is for matters to get out of hand. Indeed, the black robe, the call “all rise,” and the deference exacted by judges have their main warrant in the need for order. By its tendency to undermine order, a party’s deliberate cursing of a judge in open court can depending on the circumstances readily be viewed as obstructive.

But it is exactly because the extremely emotional and tense situation in a courtroom that some leeway must be granted, particularly when a jury is not present. People, at least those who, unlike lawyers, judges and judicial staff, do not spend their lives in courtrooms tend at times to say things they might regret later. These statements are often spontaneous ² and said without thinking.

The Circuit Court reduced the sentence to six months since six months is the maximum that a defendant can be sentenced without waiving his/her right to a jury trial.

Generally an inmate or a person on parole or probation must use a writ of habeas corpus to challenge their confinement or conditions limiting their freedom. The rules regarding the ability to file a writ of habeas corpus in Federal Court are complicated. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set up a number of rules limiting the ability to file writs of habeas corpus in Federal Court.

One of the rules prohibits people from filing “second or successive” petitions. In Restucci v. Bender the First Circuit Court of Appeals found that the rule does not apply to petitions alleging deprivations of liberty which could not have been challenged in earlier petitions. William Restucci was convicted of voluntary manslaughter in 1995. This is his third petition for a writ of habeas corpus. In his first writ he challenged the constitutionality of the statute under which he was convicted. The Court considered the writ on its merits and denied it. In his second writ he challenged the competence of his counsel The Court rejected the writ because it was a “Second or Successive” writ in that the issue could have been considered in the earlier writ. Now he has petitioned to be allowed to file a “Second or Successive” writ in order to challenge the denial of parole.

The First Circuit denied the petition, last week, as being unnecessary. Since the denial of parole came after the denial of his previous writs it could not have been considered in either of the previous petitions. As a result, under the AEDPA, it is not necessary for Restucci to file a petition prior to filing his writ of habeas corpus challenging the denial of parole.

Recently we looked at Florida v. Powell in which the the Supreme Court limited the need to inform a detainee that he/she may have an attorney present during interrogation. On Friday the First Circuit in United States v. Mejia found that Ricardo Mejia implicitly waived his Miranda rights without expressly doing so.

Ricardo Miranda was arrested with Eudy Tejada-Pichardo (“Tejada”) after they sold two kilograms of cocaine to two government informants, Ambioris Falette and Marie Perez. Prior to the arrest Tejada was recorded, arranging the deal which was to go down at a McDonald’s, in two telephone conversations with Falette and Perez. Mejia was not recorded but telephone records show that he had over 470 conversations with Tejada in the six weeks prior to the transaction, including one on the night of the sale.

Mejia and Tejada arrived at the McDonald’s together. Tejada got into Falette’s vehicle with a suitcase. Mejia and Perez got into Perez’s car. The plan was to pick up the money but the vehicles were stopped by the DEA. Tejada and Mejia were arrested. Police found the cocaine in the suitcase and a gun on the floor of Perez’s car.

At the scene Mejia was orally advised in Spanish of his Miranda rights by Detective Andres Perez. At the police station he was again orally advised of his Miranda rights and he was given a written copy in Spanish. Detective Perez read him the rights. Mejia initialed each of the rights and signed the bottom of the paper. But he never said that he waived the rights. After signing the form he began answering questions. Mejia said that Tejada gave him the gun at McDonald’s and that his job was to protect Tejada. When the officers attempted to commit his statement to writing for him to sign Mejia became evasive and the interview was terminated.

The First Circuit found that Mejia implicitly waived his Miranda rights. He initialed a box saying that he understood his rights and he answered questions after being advised of his rights, having his rights read to him, and being given the rights in writing. The Court found that “[t]he totality of the circumstances indicate that this was a voluntary conversation that Mejia undertook after having been fully advised of his rights.”

Mejia made three objections. First he claimed that the “suspected crime” section of the Miranda form was not completed but the Court found that immaterial since he was arrested in the middle of the transaction. Second he claimed that the Miranda warnings were not properly translated but Detective Perez was a native Spanish speakers and he was given the rights in writing. Finally his statement was not recorded or contemporaneously put into notes. But this issue was not raised in the trial court so the appellate court found it waived.

Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006 Congress authorized the Attorney General and the Director of the Bureau of Prisons or their designees to order the continued incarceration of individuals who they believe to be sexually dangerous beyond the completion of their prison terms and to petition the court to order indefinite incarceration.

The Supreme Court granted cert in United States v. Comstock to determine the constitutionality of the Federal Government holding prisoners after their prison term terminates. In Comstock the Fourth Circuit found the section to be beyond the limited powers granted to Congress by the Constitution. The Court determined that mental heath hospitalization has traditionally been a responsibility of the states.

The First Circuit Court of Appeals, on the other hand found the statute to be legal in United States v. Volungus Volungus was convicted of possession of child porn. He was sentenced to 53 months and released on supervised release. The court revoked his release and sentenced him to 23 months. Two weeks before his 23 months were to end the attorney general petitioned to have him civilly committed. The First Circuit reasoned that since possession of porn is illegal due to its transportation in interstate commerce civil commitments are constitutional under the necessary and proper clause. When the Fourth Circuit considered the necessary and proper clause it found that the issue was not the underlining charges but rather the prevention of of sex crimes and the prevention and prosecution of most sex crimes are not crimes resulting from interstate conference.

Section 4248 has several problems. First it allows one person, who is not a doctor, who is either a prosecutor or a warden to order the continued incarceration of an individual beyond the termination of his legal sentence. Second, it allows a judge, without a jury, but with certain procedural safeguards to order the indefinite commitment of the former prisoner. Third, it allows the commitment of anyone who is “sexually dangerous,” whether or not that person has committed a sexually violent crime. Fourth, it is doing all of this without constitutional authorization. What dictatorship is this?

The First Circuit Court of Appeals reversed a ruling by the District Court suppressing evidence on Fourth Amendment grounds and upheld a search by a Hooksett, New Hampshire police officer.

Officer Aaron Brown of the Hooksett, New Hampshire Police Department pulled over a vehicle driven by Renee LaFontaine for having a burned out headlight. After informing LaFontaine of the reason he pulled her over, Brown questioned Vincent Chaney who was in the right front seat. He asked Chaney for his ID. Chaney said he did not have it with him. (He wasn’t driving so he did not need his ID.) Chaney was not sure what jurisdiction issued the ID. Chaney gave his name as Jacob Williams. Chaney was unable to provide his Social Security number or his current address. Brown was unable to verify Chaney’s information on his radio. It took approximately five minutes to do the records check for Chaney. Brown then interviewed LaFontaine and Chaney separately. He did not learn much but he saw a bulge in Chaney’s pocket which he thought might be a weapon. Chaney was evasive about the contents of his pocket. He handcuffed Chaney and pat searched him. He found a pouch with a gun in it. Chaney was charged with being a felon in possession of a gun.

The District Court granted his motion to suppress the evidence on Fourth Amendment Grounds and the First Circuit reversed.

Citing Supreme Court precedent, The Court ruled that

“[d]uring an otherwise valid traffic stop, ‘an officer’s inquiries into matters unrelated to the justification for the traffic stop, the Supreme Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’ Arizona v. Johnson, 129 S.Ct. 781, 788 (2009).”

The appellate court ruled that once Chaney said he did not know what jurisdiction issued his ID, the officer had a reasonable suspicion of wrong doing and could continue the detention. Furthermore, the bulge in the pocket gave the officer the right to pat search Chaney for officer safety reasons. Since Chaney’s statement that he did not know what jurisdiction issued the ID came shortly after the car was stopped, the limited period of time prior to Chaney’s statement did not overly extend the stop and did not violate the Fourth Amendment.

PS I know nothing about Chaney and LaFontaine besides what I’ve written, above, but I’m willing to bet that Chaney is African-American. How do I know. An officer would not question or search a passenger in a car unless he is African- American or unless the people in the car are mixed race. Any takers?

The First Circuit Court of Appeals found the Federal ban on juveniles possessing firearms to be constitutional despite claims that it violates the Second Amendment under Heller and that it is unconstitutional under the Commerce Clause.

The Court found that the prohibition in 18 U.S.C. Section 922(x)(2)(A) which limits possession of handguns by juveniles, with the exception of their use for hunting, self defense, and national guard duty, not to violate the Second Amendment. It points out that the Federal government has prohibited juveniles from possessing handguns since 1994 and that some states limited the sale of guns to juveniles as early as the latter part of the Nineteenth Century. Furthermore the founding generation limited the possession of guns by certain groups, in particular convicted criminals and the insane. From these examples the Court draws the conclusion that the founders would have approved of Section 922(x)(2)(A) and that therefore it does not violate the Second Amendment.

The Court also found that Congress did not violate the Commerce Clause when it passed the Youth Handgun Safety Act. Citing United States v. Lopez, 514 U.S. 549 (1995) the Court found that the Commerce Clause provided Congress with three types of power.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Furthermore in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997) the First Circuit upheld the Youth Handgun Safety Act on the grounds that sales of firearms to juveniles affected interstate commerce and the power to ban the possession of firearms by juveniles is a correlated power. The First Circuit found that nothing in Heller affected Cardoza which remains good law.

Thus the court found that the limited ban on possession of firearms by juveniles in Section 922(x)(2)(A) to be constitutional.

José Luis Alicea-Cotto and Cristian Ayala-García appealed their Puerto Rico convictions in a drug/weapons trial. In the appeal they claimed insufficiency of the evidence and prosecutorial misconduct.

When considering a sufficiency of the evidence argument the court looks at the facts in the light most favorable to the government. As two police officers approached a vehicle in a housing complex in Carolina, Puerto Rico they saw the defendants, standing outside the vehicle selling a gun to Benny Alvarado-Arroyo. As they approached they saw in plain view in the vehicle a significant quantity of drugs, wrapped for individual sales, several guns, and currency. Nearby they saw four men sitting outside a building.

At trial the police officers testified that they saw the gun sold and found the drugs and guns in plain view. Other witnesses including the men near the building testified that the two defendants were not near the car but sitting near the building and that the police evidence was fabricated. Both men were convicted. Since the court found that if the jury believed the government evidence they could have found the defendants guilty on all counts except for the possession of a stolen weapon counts against Alicea-Cotto the court rejected the defense argument that there was insufficient evidence.

On the other hand the court accepted the defense argument that the convictions had to be reversed on prosecutorial misconduct grounds. During closing arguments the prosecutor made a number of inappropriate comments. Among the statements made by the prosecutor were:

• Ladies and gentlemen of the jury, those (indicating) are bullets from an AK-47 assault rifle. There are 31 of those bullets that were in this gun, ready to go on May 25th. Thirty-one potential lives were saved on May 25th, 2006. And for that, the district of Puerto Rico should be thankful, 31 lives were saved.

• Do you see the size of these things? Do you see the size of these bullets? You can take them back with you. You can look at them.

• The problem today is there [are] too many people living in public housing projects that are willing to look the other way and not take responsibility for what happened or protect people that need to be here in court and prosecuted . . . because they’re afraid for their lives . . .

• How can you reconcile looking the other way? . . . It should offend the sense of justice, ladies and gentlemen of the jury.

• . . . [I]sn’t it ironic that this car that was owned by Jose Luis Alicea Cotto was an Armada? Isn’t that just ironic?

Because that’s exactly what it was. It was an Armada. He was armed. He was armed for a war that goes on every day in public housing projects around Puerto Rico, around the United States, in every jurisdiction, in every district, poor people, rich people, fat people, tall people, hungry people, they face this reality every day.

• And on behalf of the United States and the District of Puerto Rico, I charge you to do your job, find the Defendants guilty.

The court found that some of the statements particularly the statement that alleged that the arrest of the two men saved the lives of 31 people needlessly aroused the emotions of the jury. There was no evidence that anyone was going to be shot. The court found that the comments “so poisoned the well that the trial’s outcome was likely affected.”

As Judge Boudin said in a concurring opinion:

Motions for a new trial in criminal cases, based on improper remarks by the prosecutor in closing, are often an uphill effort. The government, unlike defense counsel, can pursue strong cases and pass on weak ones, and so many of its cases are strong: eye-witness testimony by eye-witnesses, audio or video tape, and co-conspirators who turn up as prosecution witnesses confront defendants who, often hindered by prior criminal records, chose not to take the stand.

Prosecutors do sometimes make statements that judges find impermissible. Yet the variables are numerous and work against easy rules of thumb: statements may be improper for different reasons and in varying degrees; they may be fine in some contexts and not in others (e.g., depending on the trial evidence); provocation or fair response may mitigate or excuse; corrective instructions may or may not be given and, if given, vary in their force; and judges also vary in what they think allowable comment.

Complicating the equation is the requirement of harm: if no objection was made, the defense must show (among other things) that an objectionable statement caused prejudice. . . .

Only where bad faith is shown is the need for harm sometimes disregarded. But finding bad faith is not easy: trials raise the emotional level and much in closing argument is spontaneous. Further, a court may be reluctant to reverse a reliable conviction because, in Cardozo’s famous phrase, “the constable has blundered.” . . .
The present case, quite unusual, combines an undisputedly improper and significant remark, with a defense case that is forceful and well developed. The statement that “[t]hirty one potential lives were saved” can be understood (even if not so intended) as a claim that the defendants were out to kill people, which was neither the charge nor the subject of any evidence. The government concedes the remark was improper. How far other remarks standing alone were improper can be and is disputed, but several of them, given the quoted statement, tended to emphasize its thrust.

Prosecutors have said worse things, but a timely objection was made so the question is whether the government can show that the remark was harmless. Very often, in a case like this one, there would be unquestioned police testimony that they caught the defendants with guns and drugs and cash, and there would be nothing from the defense side except silence. In that situation, a prosecutor’s overstatement rarely looks like it had any effect; and a new trial, given such evidence, appears a waste of time.

This case is different. Six witnesses, at least four of whom had nothing specific to do with the defendants, testified that the police had fabricated the alleged seizure: that they had not taken the guns and drugs from the defendants or their vehicles, had searched the defendants but found nothing, had disappeared into the woods and returned with a bag and (according to two witnesses) had at the police station taken weapons and drugs from the bag. Other defense evidence is described in the decision.

This does not show that the defendants were bound to be acquitted. The witnesses from the housing project may have been friends of the defendants, hostile to the police or subject to intimidation. But given the objection and substantial impropriety of the main comment, the government had to show that the remark or remarks could not have affected the result, that is to say, (since the jury’s mind cannot be read), that the chances are extremely low that the outcome was affected.

Here, the government cannot meet this burden. . . .

In the seminal case of Terry v. Ohio the Supreme Court held that their are three levels of contact between the police and civilians and for each level of contact their is a corresponding permissible level, under the Fourth Amendment, of invasive behavior. The lowest level involves a consensual encounter. In this case no force is used and any search must be agreed to by both sides. At the other extreme the police have probable cause to arrest someone. Since the police have probable cause to arrest someone they can use force to search the individual pursuant to the arrest. In the middle is what has been called a Terry search. In the Terry search the police have a reasonable suspicion that a crime has been committed or is about to be committed and that the individual is involved in the crime. In such cases they may detain the individual for a limited period of time in order to verify their suspicion. If they also have a reasonable suspicion that the person might be armed, they may frisk the individual for their own safety.

Terry searches have been quite useful to law enforcement in obtaining evidence of a crime and in arresting individuals. While individuals have a right not to answer questions during Terry searches people are either unaware of their rights or try to talk their way out of being arresting in many cases. Usually, in such case they give the officer probable cause to arrest them and the case is over.

The problem from a legal point of view is the dividing line between the three levels. Often the line is thin and police anxious to make an arrest either detain an individual without a reasonable suspicion or arrest the individual without probable cause. Of course no one wants the police to randomly detain, pat search or perform a full search without the appropriate level of of suspicion. This ends up with an illegal invasion of one’s civil rights.

Since evidence obtained as the result of an illegal detention or search is inadmissible in court the issue is frequently raised during a case and often results in appellate decisions. In a recent case that came out of Massachusetts the First Circuit Court of Appeals upheld a Terry stop and a pat search for weapons in which a gun was found on Samnang Am.

The police alleged six reasons for the stop. They were that the search was in a neighborhood known for a high crime rate, Am was a known member of a gang, Am’s criminal record, the fact that he was on probation, Am had been found with a gun before and a tip received by one of the officers that Am had been involved in a recent shooting. The court found that while the location of the search, ie in a high crime neighborhood, claimed by an opposing gang could not in and by itself provide a reasonable suspicion it could be considered in connection with the other factors. Also, the tip could not be used because there was no way to verify it. But even excluding the tip the court found that the officer had a reasonable suspicion to detain Am.

At the time of the detention Am put his hands into his pockets. This provided the police with a reasonable suspicion that he might be armed and therefore the pat search was legal. Since this led to his arrest the game was over.