In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

Now it turns out in a new Federal indictment that Butler apparently bribed Tanabe with a gun and cocaine in exchange for making the arrests. This is the same police department that allowed Phillip and Nancy Garrido to live in their midst with kidnap victim Jaycee Dugard and her daughters put away in a back yard shack

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By January of 2005 the government was pursuing both civil and criminal forfeiture of the items. Martin challenged the civil forfeiture during February of 2005. Under the Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983 (“CAFRA”) the government has 90 days from the date Martin filed her complaint to do one of the following:

(1) ‘file a [civil] complaint for forfeiture,’ (2) ‘obtain a criminal indictment containing an allegation that the property is subject to forfeiture[ ] and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute,’ or (3) ‘return the property.’ 18 U.S.C. § 983(a)(3)(B)

The government did none of these. Failure to comply requires release of the property. However, the court found the claim untimely. ¹ The government obtained a criminal seizure warrant.

After the criminal trial the court held two hearings on the forfeiture announcing that it planned to declare a forfeiture but the subject of the forfeiture was somewhat unclear. Then it sentenced the defendants on December 19, 2006, without mentioning the forfeiture. No one objected at the sentencing. It wasn’t until June 14, 2007 that the court entered its final judgement on the forfeiture and it did not amend the judgement.

The law requires that the forfeiture which is a type of punishment be entered at the time of the sentencing and be part of the judgement.

On appeal the defendants either individually or jointly argued that the civil forfeiture was illegal and that invalidated the criminal forfeiture. They also argued that the criminal forfeiture was invalid in that it was untimely. The Fourth Circuit Court of Appeals ruled that even if the civil forfeiture was illegal the government can forfeit the property on independent grounds in the criminal forfeiture action. Although the requirements are found in Federal Rule of Criminal Procedure 32.2 it does not state what the remedy is for the court’s failure to comply. The defendants argued that the court lost jurisdiction to order the forfeiture but the Fourth Circuit held that the court did not lose jurisdiction as long as prior to sentencing it made it clear that that it planned to order forfeiture. The dissent argued that at best the court must make it clear exactly what was going to be forfeited and without doing so it lost jurisdiction. But the majority thought that the court made it sufficiently clear and upheld the forfeiture.

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Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

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The officers did a license check on Powell, it came up suspended and the officer learned that Powell had a prior conviction for armed robbery. Based on this information the officers ordered Powell to get out of the car and pat searched him. ¹ A gun was found in a backpack near Powell’s seat in the car. He was arrested after the gun was found but he was not convicted of possessing the gun. During a search incident to the arrest crack cocaine was found on Powell and this was the basis for the conviction.

The issue on appeal was whether the officers’ pat search was justified by officer safety. During the pat search the gun was found. This justified his arrest which lead to the cocaine being found.

The government argued that the pat search was legitimate based upon Powell’s past record and the fact that he lied about the status of his license. But the court applying Terry found that ” that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the
night of the traffic stop.” Without evidence that Powell was armed and dangerous the officers had no right to pat search Powell and the the arrest as well as the search incident to the arrest were fruits of the illegal pat search. The cocaine had to be suppressed and the conviction vacated.

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Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

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There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

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He was fired and convicted on 44 counts in Federal Court. Among the charges were violations of conspiracy to deprive another of their civil rights under the color of law, deprivation of civil rights under the color of law, and robbery and extortion under the color of official right interfering with interstate commerce. He was sentence to life plus 255 years ¹.

Well established constitutional law states that when considering the constitutionality of a search or an arrest under the Fourth Amendment you do not consider the intent of the police officers. (See Whren v. United States) Sease had the chutzpa to argue that because the drug deal which he set up was illegal, it made no difference whether his taking of the drugs and the money was for legal reasons or for illegal reasons. If there was no constitutional violation he could not be convicted of depriving the drug dealers of their civil rights.

The Sixth Circuit held that “[u]nlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy.”

The issue in Whren involved the exclusionary rule where officers have to make snap decisions in difficult situations. Here there were no snap decisions, Sease had everything planned out. Furthermore the deprivation of rights statutes require that the court consider the intent of the officer. To obtain a conviction the government must show that the defendant “acted with a corrupt, personal, and pecuniary purpose.” As a result the court upheld the conviction and Sease is going to spend the rest of his life in prison. ²

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INFORMANT RECORDS NOW AVAILABLE THROUGH FOIA

In a significant published decision affecting thousands of cases, the 9th Circuit ruled on July 27, 2011 that defense attorneys and the public may now obtain federal informants’ agency records through FOIA, once the informant is officially confirmed by testimony at trial. In Pickard v. DOJ, 2011 U.S. App. LEXIS 15397, the 9th Circuit determined that “as a matter of first impression and great importance” (Judge Wallace, concurring), federal informant Gordon Todd Skinner’s DEA files must be provided to Plaintiff William Leonard Pickard.

The decision has broad implications for the defense bar, describing for the first time a FOIA method to obtain informant records after their testimony in any case. The decision in Pickard v. DOJ provides a check on prosecutors’ compliance with their obligations at trial to disclose impeachment evidence on government witnesses.

In interpreting FOIA Sec. 5 USC 552(c)(2) whereby informant records are subject to FOIA if the individual were “officially confirmed” as an informant by a federal agency, the 9th Circuit declined to adopt DOJ’s proposed standard that would require a “press release” by a “head of an agency,” instead concluding that Pickard’s explanation — that agents’ testimony should suffice — “makes more sense” in a FOIA context and in view of the legislative history of 5 USC 552(c)(2).

The 9th Circuit observed that since the 1976 enactment of FOIA, DOJ had never issued any regulation or advisory interpreting “official confirmation” under FOIA, nor had any court ruled on the issue. Observing “the cat is out of the bag” regarding informant Skinner’s records, the 9th Circuit determined that agency records of Skinner must be made public, thus opening the door for similar requests by defendants, attorneys and public interest groups for informant records. Although the 9th Circuit noted the decision “may cause trouble for prosecutors and confidential informants,” the availability of informant records through FOIA will assist prosecutors, defense attorneys and the courts in assessing what records are material to the defense, bypassing prosecutors’ prior unilateral determinations in selecting specific records for release (see http://caselaw.findlaw.com/us-9th-circuit/1575518.html).

William Leonard Pickard

http://www.freeleonardpickard.org

crucible27@gmail.com

Tucson, Arizona

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Yesterday his current court appointed attorney, Thomas Abbenante, told Us. District Judge Paul Friedman of the U. S. District Court for the District of Columbia that Sitzmann wanted to represent himself again. Friedman interrupted Abbenante, saying, “No, he’s not going to proceed pro se. We’re done with that,” He refused to listen to the reasons that Sitzmann wanted to represent himself.

But under Faretta the Supreme Court has ruled that almost anyone has a constitutional right to represent themselves. And the California Supreme Court ruled in >Marsden that the right to appointment of counsel guaranteed in Gideon v. Wainwright is only meaningful if competent counsel is appointed and that a judge must give a defendant a right to be heard before denying his/her motion for substitution of counsel.

While a district court judge in Washington D. C, is not required to follow the California precedent in Marsden it is clear that Friedman followed neither Marsden or Faretta

However the question is raised what happens when a defendant uses Marsden or Faretta for sole reason of delaying a trial. Any judge and any honest attorney will admit that Marsden and Faretta are used for delay. It is not clear that Sitzmann used the Faretta motions and the substitutions of attorneys for delay purposes. At least one of the substitutions occurred when his attorney was appointed to a judgeship. John Bergendahl and Richard Klugh were excused from the case when it became clear that they had a conflict of interest.

But when a simple one count drug case lasts nearly four years the question of intentional delay is raised. There is very little law on the issue and Judge Friedman invited Sitzmann to take the issue up on appeal. Since it is not clear that the changes in counsel are for delay purposes this may not be the best case to take up on appeal but we will see.

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