The Armed Career Criminal Act (ACCA) provides for a minimum sentence of fifteen years for anyone who has three prior serious drug offenses or violent felonies. It defines a serious drug offense as any drug offense for which the maximum punishment is ten years or more in prison, according to state law.

The question in McNeill v. United States, decided yesterday, was whether a drug conviction is an ACCA prior based based upon the penalty at the time of conviction in state court or based upon the penalty at the time of the Federal Court trial.

Clifton Terelle McNeill had two two violent felonies on his record at the time he was convicted of possession of a gun and possession of cocaine for sale in Federal Court. He also had six drug offenses. At the time of his conviction on the drug offenses the maximum penalty in North Carolina was ten years. But in 1994, the North Carolina law changed providing a maximum sentence of 38 months. The trial judge ruled that he had three or more serious felonies under the ACCA and sentenced him to 300 months.

The Supreme Court reviewed the language of the ACCA and agreed with the trial court that the determination of whether a crime is a prior under the ACCA is made at time of the original sentencing, not at the time of the conviction of a subsequent crime. As a result the Supreme Court found that the fifteen year minimum applied to McNeill.

Section 18 USC 924(e)(1) states in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years

Justice Thomas, for a unanimous Court, held that despite the present tense language of the section the statute should be interpreted as it was written at the time of the original state conviction, not at the time of the subsequent Federal conviction. Since the statute talks about a prior conviction it is necessary to look at the conviction at the time of the original sentencing. Otherwise it is possible that the statute applicable to the prior conviction may have been revoked. Furthermore under North Carolina law the maximum punishment for drug crimes committed prior to 1994 remains ten years.

While this is all good and well certain incongruities appear. If a crime happened the day before the revised North Carolina statute was passed the defendant is facing an ACCA prior while the defendant who was convicted one day later is not. Furthermore by basing the statute on state law a defendant who committed the same offense but lives across the border in South Carolina may not be facing an ACCA mandatory minimum.

In any case, I’m not sure why the Supreme Court granted certiorari in this case. In sentencing McNeill the judge pointed to McNeill’s “long and unrelenting history of serious criminal conduct” in upwardly departing from the Sentencing Guidelines to sentence him to 300 months. Thus it is unlikely that even if the Supreme Court had decided that the mandatory minimum did not apply and remanded the case for resentencing that the trial court would have sentenced McNeill to less than 300 months.

Former Antioch, California police officers ¹ Norman Wielsch, most recently head of the Central Contra Costa Narcotics Enforcement Team (CNET), and Christopher Butler, who now has a private detective agency along with San Ramon police officer, Louis Lombardi, were charged with stealing drugs from the CNET safe and selling them to Butler’s clients and to confidential informants. Lombardi was a member of CNET at the time of the thefts. Then Butler, and former Danville Officer Stephen Tanabe, were charged with setting up spouses of Butler’s clients to be arrested on DUI’s to dirty them up for the divorce proceedings. Now Butler is accusing his former friend, Wielsch of running a brothel in Pleasant Hill in 2009-2010.

Boy, these cops must count for half of the crime in Contra Costa County.

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

The story started out with two former Antioch, California police officers, Norman Wielsch, who was the head of the Central Contra Costa Narcotics Enforcement Team (CNET), and Christopher Butler, who now has a private detective agency, being arrested on drug charges. It was alleged that Wielsch stole drugs from CNET and provided them to Butler who sold them and presumably shared the profits. Twenty-eight felony charges are pending against Wielsch and Butler. Dirty cops–big deal. But as the story has evolved it turns out that Butler represented some women in child custody matters. In order to get custody for their children and to blacken the fathers, he hired decoys to get the men drunk. Then he arranged for a third former Antioch police officer, Stephen Tanabe, now employed by the Contra Costa County Sheriff’s Department and assigned to Daville to be waiting near the bar and to arrest the fathers for driving under the influence. Tanabe has not been charged with incidents involving the DUI’s. Rather he has been charged with drug and weapons offenses.

CNET’s operations have been suspended pending a state audit.

Wielsch, Butler and Tanabe are now out on bail. But at a bail hearing for Butler the district attorney played a video of Butler kidnapping a boy, with Wielsch present, and stealing 4000 Xanax pills found in the boy’s room to scare him from being involved with drugs. In the video Butler and several of his employees impersonated police officers. Deputy district attorney Jun Fernandez said they may be charged with kidnapping. The Xanax was found when officers searched Butler’s possessions after he was arrested.

Paying to have people arrested is about as corrupt as you can get.

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, the Sixth Circuit Court of Appeal upheld the conviction Reginald Ellison, Sr. on various drug charges. The only question on appeal was the sufficiency of the nexus between the residence that was the subject of a search warrant and crime.

Neither a search warrant or the affidavit supporting a search warrant must name an individual suspected of committing a crime. The warrant need only name a place to be searched. The affidavit must show probable cause that evidence of a crime will be found at the place. In order to show probable cause, inter alia, it must show a nexus between the place to be searched and a crime. It is certainly possible that a search warrant is issued and a search is performed where a significant amount of contraband is seized but no one is found in possession of the contraband and no one is arrested.

In Ellison an informant ¹ tells a government agent that he/she saw “Short” ² exit the house, make a sale of drugs to “Red,” and return to the house.

This was an easy case for both the trial court and the Sixth Circuit. Certainly if “Short” came out the residence and returned to the residence after the sale it is likely that more drugs will be found in the residence. It is also likely that the money “Short” received for the sale of the drugs will be found in the residence. This creates a sufficient nexus between the residence and a crime to obtain a search warrant.

Prior to obtaining the search warrant the police determined that the utilities were in Ellison’s name. Presumably once in the residence they found evidence that Ellison was involved in the crime and arrested him. ³

The Fourth Circuit Court of Appeals reversed a conviction where the attorney, over the objection of her client agreed to an evidentiary stipulation.

Randolph Williams was charged with conspiracy to possess for distribution heroin. Heroin was sent from Panama addressed to the girl friend of Victor Johnson, a friend of Williams. Prior to the delivery a UPS employee became suspicious and turned the package over to law enforcement officers. A police officer dressed as a UPS employee delivered the package to the house shared by Johnson and his girlfriend. Johnson received the package. By prior arrangement he was to call Williams who was going to pick it up. Instead of course he was arrested at the time of delivery. He plead guilty and agreed to testify against Williams.

Prior to trial the U. S. attorney offered the following stipulation:

United States of America vs. Randolph Williams also known as Red, Criminal No 7:08-25, the Government and counsel for the defendant, Randolph Williams, that counsel being Lora Collins stipulate the following: that on October the 11th of the 2007 [sic] lieutenant [sic]Beth Rampey Vaughn a certified forensic chemist with the Spartanburg County Sheriff’s Office forensic laboratory located in Spartanburg, South Carolina, examined and analyzed the contents of the package addressed to Sabrina Hutchinson, 142 Westover Drive No. 5, Spartanburg, South Carolina, 29306 and seized by Eric Murphy of Customs and Border protection Louisville Kentucky, that the package was seized on October the 3rd of 2007 from the UPS sorting facility and submitted to forensic chemist Rampey Vaughn under ICE file No. GV13HE08GV0C1[ ], that forensic chemist Rampey Vaughn who has been qualified as an expert in the analysis of controlled substances in both state and federal courts within the District of South Carolina determined that this – that the package contained a total weight of 98.61–grams of heroin, a schedule I controlled substance. We do so stipulate, signed by Lora Collins, attorney for the defendant, and Assistant United States Attorney Regan A. Pendleton in Greenville, South Carolina

Williams refused to sign the stipulation and his counsel, with permission from the court signed it in his place. By signing the stipulation the attorney violated William’s Sixth Amendment right of confrontation. A defendant in a criminal case has the right to confront witnesses against him/her. A stipulation is an agreement between the parties that the jury may consider the agreement in lieu of hearing witnesses. While a defendant can waive the right of confrontation and agree to a stipulation, counsel for the defendant cannot waive the right over the objection of her client. While the Fourth Circuit had not ruled on the issue before it agreed with the unanimous opinion of other circuits and reversed the conviction.

The elements of the offense are:

(1) an agreement existed between two or more persons to possess with the intent to distribute heroin; (2) defendant knew of the conspiracy; and (3) “defendant knowingly and voluntarily became a part of the conspiracy.

The Court found that the error was not harmless since the stipulation practically made the first element of the offense and it reversed its conviction.

My question is why would the attorney, over the objection of her client, enter into the stipulation? An attorney is supposed to zealously represent her client. When representing a client you are, using your special skills to carry out the wishes of your client. Sometimes you may disagree with your client and you need to explain to your client why what he/she wants is not in his/her best interest but there is no evidence that requiring the prosecutor to prove her case, without the use of the stipulation, was in the defendant’s best interest. Perhaps the prosecutor wanted to use the stipulation because she was missing a witness. The case may have been dismissed without the stipulation. In which case the attorney’s action severely hurt the client. I cannot conceive of any reason in this case that the defense attorney would want to enter into a stipulation over the will of her client, unless she wanted to get the trial over fast so she could go on a vacation.

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

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

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

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

In its first criminal justice decision of the 2010-1011 session, Abbott v. United States the Supreme Court tackled a split in the circuits over 18 U. S. C. Section 924(c). Section 924(c) criminalizes possession of a weapon while being involved in a violent or drug-related offense. It states in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. . .

The question deals with the first phrase. Kevin Abbott and Carlos Rashad Gould in separate cases were convicted inter alia with violations of Section 924(c) Each argued in the trial courts and on appeal that the first phrase prevented them from being punished for violating the section. They claimed that since they were convicted of other offenses that mandated a minimum sentence of over five years they could not be punished for a violation of Section 924(c). After all the statute says, ” Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Gould argued that the ten year mandatory sentence he received for possession of narcotics with the intent to distribute it prevented the court from imposing Section 924(c)’s five year mandatory minimum sentence and Gould argued that his fifteen year mandatory minimum sentence for possession of a weapon by a convicted felon also prevented imposition of the 924(c) sentence.

But the Supreme Court unanimoulsly ¹ruled that the “other provision of law” clause referred only to statutes that outlawed conduct identical to Section 924(c). It pointed out that the questioned language was added to the section in 1998 as part of an effort to strenghthen the law and accepting the defendant’s argument would weaken the law. Accepting the defendant’s interpretation would allow some defendants not to be punished at all for possessing a gun where they have a higher mandatory minimum under other provisions of law. Also because those convicted only of lesser crimes would get the additional five years and those convicted of greater crimes would not in some case those who are guilty of only lesser crimes might do more time than those guilty of greater crimes.

Considering these factors the Supreme Court decided that Congress could not have wanted the five year mandatory minimum to apply only to those not convicted of any other offense with a mandatory minimum of five years or less.