Strange Doctrines

Seeds of Doubt

Weetabix Reloaded

Westlaw headnote of the day:

U.S. v. Rodriquez, 464 F.3d 1072
Formerly 406k17(4)
C.A.9.Wash.,2006
Evidence was sufficient to prove that defendant possessed the gun found in apartment, as required to support conviction for being a felon in possession of a firearm; witness testified that he asked defendant to get rid of the gun, defendant agreed to do so, but kept it, police observed defendant standing outside an open door to the apartment where the gun was found eating a bowl of cereal....

Profoundest Last Words

"Why should my words now be more esteemed merely because they are my last?"

Alas, to utter these words is to violate their spirit.

The GOP Mainstream is Exactly Like the Liberal Fringe

Orin Kerr indulges in his worst habit - straining mightily to find partisan equivalences where there are none:

If you took the public outcry over the Patriot Act in 2001, replaced “police state” with “socialist state” and replaced “privacy” with “freedom,” and then replaced the claims of violating the Fourth Amendment with claims of violating the Commerce Clause, you would pretty much have the public outcry over the health care law today — except from the Right not the Left. 

But Orin hedges: "Of course, I’m not saying the two laws are the same. [Of course not.] But I’m struck by the rhetorical similarities of the case made by the laws’ outspoken opponents."

It's a good thing that Orin hedged, there. It would really have been stupid to compare the laws substantively (police powers versus healthcare) or procedurally (the one passed with a single Democratic "no" vote, the other without a single Republican "yes" vote). Idiotic even. So kudos to Orin for carefully marking that distinction. His readers might otherwise have gotten the wrong idea.

The real point Orin wants to make, then, is about the many "rhetorical similarities." Which of course there are. Thing is, they are similarities between what you hear now from congressional leaders and what you heard then from some guy on the Internets. (Okay, and maybe Randi Rhoades.)

So I guess I'd just want to suggest that the analogy is perhaps one not worth making.

The FPD's TGIF Roundup

For the week of March 22, 2010 (cross-posted from the Central District Federal Public Defender blog).

Join the Army (or the NBA). Story about a case in which the AUSA felt that the defendant's PTSD mitigated his possession and receipt of child pornography is here. Story about a case in which the AUSA felt (at least if the 3-month recommended sentence is any indication) that the defendant's NBA stardom mitigated his possession of an unlicensed firearm is here. The NBA star wound up with probation. (Who'd a thunk it?)

Useful Guidelines for Use of the Guidelines. When the United States Sentencing Commission called for comment on proposed guideline amendments, Federal Defenders Margy Meyers and Marianne Mariano were there to give our side of the story. Whatever the USSC does in the end, Meyers' and Mariano's statement is a great resource for sentencing arguments you can use right now. (H/T Tenth Circuit Blog.)

Bitter with the Sweet. The healthcare legislation to be signed into law next week contains a host of new entitlements. It also provides an additional $250 million to the Health Care Fraud and Abuse Control Program. You know what to expect next.

And the Nominees Are... President Obama nominated former DOJ unit director Mary Helen Murguia to be United States Circuit Judge for the Ninth Circuit. The spot was held previously by Michael Hawkins, who has taken senior status.

The Week in Sausage Making. Measures passed include H.R. 4872 (Reconciliation Act of 2010) (would substantially reshape national system of healthcare coverage). Measures introduced include H.R. 4975 (would regulate habeas review of "unprivileged enemy belligerents").

Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Denton (for purposes of determining sentence for supervised release violation, district court may not presume that state alternative felony/misdemeanor that was never charged is a felony).
U.S. v. Christensen (amendment to § 2G1.3(b)(2)(B), clarifying that enhancement for unduly influencing minor does not apply where "minor" is undercover agent, is retroactive).
U.S. v. Xinidakis (18 U.S.C. § 3624(e) does not prohibit district court's imposing consecutive prison sentences for violating concurrent terms of supervised release).
U.S. v. Maciel-Alcala (scienter element of federal aggravated identity theft does not require showing that defendant knew that document belonged to a living person).
U.S. v. Dewey (suspended portion of 1990 sentence for violent felony that was later imposed following misdemeanor conviction within 15 years of instant offense counted as career offender prior).
U.S. v. Castro (California PC § 288(c)(1), prohibiting lewd or lascivious acts on child 14-15 years by person 10 years older, is not crime of violence within § 2L1.2(b)(1)(A)).

SCOTUS Focus.
Grants of Certiorari:
Belleque v. Moore (9th Cir. below) (whether Fulminante applies in a collateral challenge based on a defense attorney's decision not to move to suppress a confession prior to plea, where there is no trial record). Briefing available here.
Flores-Villar v. U.S. (whether gender discrimination in citizenship transmission rules is permitted under Nguyen v. INS). See Fifth Circuit Blog's analysis here.
Other Orders:
Skinner v. Switzer (staying execution pending disposition on cert. petition in DNA case). Los Angeles Times story here.
Kiyemba v. Obama (denying cert., letting stand D.C. Cir. decision that federal judges have no authority to review executive branch determination where and when to send detainees cleared for release).

Short Circuits - other persuasive authority.
U.S. v. Carothers (C.D.Cal.) (dismissing indictment with prejudice after declaring mistrial over defense objection, where jury had reached unanimous verdict on lesser included offense but hung on greater offense).
U.S. v. Sabhnani (2d Cir.) (loss to live-in workers from peonage, forced labor and document servitude under 18 U.S.C. § 1593(a) does not include overtime pay, regardless of whether victims were provided separate living quarters).
U.S. v. Lianidis (2d Cir.) ("benefit received" under § 2C1.1(b)(2) is value accruing to entity on whose behalf defendant paid bribe, less "direct costs," i.e., costs easily attributable to specific contract at issue).
U.S. v. Davis (2d Cir.) (finding defendant's appeal from sentence nonfrivolous, stressing that "[t]he unique importance of criminal appeals makes the decision to characterize one as frivolous particularly perilous") 
U.S. v. Torres (5th Cir.) (eight-year-old's placement in tractor-trailer sleeper compartment not § 2L1.2 reckless endangerment).
U.S. v. Sneed (11th Cir.) (Shephard precludes reliance on police reports to establish nature of prior conviction for purposes of § 924(e) enhancement).
U.S. v. Polouizzi (E.D.N.Y.) (mandatory electronic monitoring of defendant awaiting trial on child pornography unconstitutional as applied) (collecting cases).
State v. Eaton (WA) (enhancement for possession of controlled substance in jail requires volitional act by defendant to place himself in enhancement zone).

For the Bookworms - New books and scholarly articles of note.
"Two Wrongs Don't Make a Right," Michael Pepson & John Sharifi, 43 Akron L. Rev. 1 (2010) (pdf) (argues that Federal Death Penalty Act violates the Sixth Amendment because it allows fact finder to rely on hearsay evidence in finding aggravating factors that qualify case for death sentence).
"Effective Oral Argument: Six Pitches, Five Do's, and Five Dont's from One Judge and Two Lawyers," 33 Seattle U. L. Rev. 347 (2010) (pretty much what the title said).
"The Neglected History of Criminal Procedure, 1850-1940," Wes Oliver, 62 Rutgers L. Rev. ___ (forthcoming 2010) (SSRN) (argues that modern scheme of judicially supervised police investigations was response to new professional police forces formed in the mid-nineteenth century and corruption scandals exposed in the 1920s, and is thus not informed by Framing Era practices).
"Foundational Facts and Doctrinal Change," Suzanna Sherry, ___ U. Ill. L. Rev. ___ (forthcoming 2011) (SSRN) (argues that conventional views of doctrine focus on theory and application to the exclusion of "foundational facts" - hidden factual assumptions embedded within the doctrinal structure; changes in these hidden factual assumptions may lead to unacknowledged changes in doctrine).
The Autobiography of an Execution (2010) (Amazon) (death penalty lawyer's memoir of a Texas execution as a compelling brief against the death penalty (and for eking out some quality time with the family)).

___________________

Suggestions or corrections? Email Michael_Drake@fd.org.

Why We Are Here

"We are here to drink beer. We are here to kill war. We are here to laugh at the odds and live our lives so well that Death will tremble to take us."
 — Bukowski

"I don't know why we are here, but I'm pretty sure that it is not in order to enjoy ourselves."
 — Wittgenstein

"We are here to provide the world with dramatic material."
 — Me

"We are here on earth to do good for others. What the others are here for, I don't know."
 — Auden

"[W]e are here on Earth to fart around, and don't let anybody tell you different."
 — Vonnegut

Consolation of the Imperilled

The Greeks, in a way of life in which great perils and upheavals were always present, sought in knowledge and reflection a kind of security and ultimate refugium. We, in an incomparably more secure condition, have transferred this perilousness into knowledge and reflection, and we recover from it, and calm ourselves down, with our way of life.

Nietzsche, Daybreak 154.

The FPD's TGIF Roundup

For the week of March 15, 2010 (belatedly cross-posted from the Central District Federal Public Defender blog).

With Facebook Friends Like These... The Electronic Frontier Foundation filed a FOIA request with several federal law enforcement agencies to shed light on how they use social networking sites in their investigations. Several documents are available here, including a DOJ presentation on "Obtaining and Using Evidence from Social Networking Sites." For future disclosures, keep an eye on EFF's social networking monitoring thread.

"Science in Court." That's the theme for the new issue of Nature, which highlights how forensic techniques have "developed largely in isolation from academic science, . . . shaped more by the practical needs of the criminal-justice system than by the canons of peer-reviewed research."  Specific areas addressed are fingerprints, DNA and fMRI.

Now with More Pictures. The Supreme Court has a new website.

Without More Pictures, but Still an Improvement. Meanwhile, PACER has launched a new case locator, which allows you to search all district, bankruptcy and appellate courts from one spot. The old Party/Case Index will be phased out in the next few months.

Deconstructing the Career Offender Guideline. Your friendly Office of Defender Services has a newly-revised version (March 11, 2010) here.

The Week in Sausage Making. The Senate unanimously approved S. 1789, which would reduce but not eliminate the sentencing disparity between crack and powder cocaine. Senate measures introduced include S. 3120 ("Fugitive Information Networked Database Act," which would provide additional resources for extradition and encourage states to enter felony warrants into national database; and S. 3122,  which would required the Attorney General to compile and make publicly available certain data relating to Equal Access to Justice Act.

Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Mann (member of Indian tribe that is not federally recognized does not have Indian status within 18 U.S.C. § 1153).
U.S. v. Maggi (defendant's minimal connection with tribe was insufficient for Indian status within § 1153).
U.S. v. Nevils (en banc) (court of appeals cannot require reversal when construction of evidence favoring innocence is not any less likely than construction favoring government; overruling U.S. v. Bishop) (evidence that firearms were resting on or against sleeping defendant in unlocked apartment was sufficient for conviction of firearms possession).
U.S. v. Hofus (district court's jury instruction on "substantial step" and exclusion of expert testimony on ultimate question of likelihood that defendant intended to engage in sexual activity with minor were not abuse of discretion).
U.S. v. Gonzalez (denial of rehearing en banc leaves intact panel's holding, after remand from Supreme Court, that good faith exception did not apply to Gant violation). 
U.S. v. Rocha (18 U.S.C. § 113 precludes assimilation via ACA of California PC § 245 assault) (assault with bare hands cannot support conviction under PC § 245(a)(3) assault with a dangerous weapon).

SCOTUS Focus.
The Supreme Court was in recess this week.

Short Circuits - other persuasive authority.
U.S. v. Bell (7th Cir.) (guidelines enhancement under § 2B1.1(b)(8)(C) for violation of a court order in commission of 18 U.S.C. § 228(a)(3) willful failure to pay child support was impermissible double counting).
U.S. v. Caro (4th Cir.) (dissent argues that under Eighth Amendment, death-eligibility factors relating to defendant's history must involve violence).
In re Jones (6th Cir.) (habeas) (28 U.S.C. § 2244(b) limitations on "second or successive" petitions do not apply to numerically second petition challenging changes to state parole system that occurred after conviction and initial petition).

For the Bookworms - New books and scholarly articles of note.
"Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias," Paul C. Giannelli, ___ Utah L. Rev. ____ (forthcoming 2010) (SSRN) (enumerates types of biasing that prompted the National Academy of Sciences to recommend removing crime laboratories from the administrative control of law enforcement).

Touché

Sarah Palin's thrust:

I got to meet quite a few candidates who are lining up in a contested primary who want to take out Alan Grayson. And I think Alan Grayson -- what can you say about Alan Grayson? Piper is with me tonight, so I won't say anything about Alan Grayson that can't be said around children. But thank you, Florida.... [and so forth.]

Alan Grayson's parry and riposte:

Palin, the former half-term Governor, current-nothing and future-even-less, charmed the all-Republican audience with her folksy folksiness and her homespun homespunnery. Atypically, Palin was wearing clothes that she had paid for herself. At the end of the event, she shared her recipe for mooseface pie.

In response to Palin's attack on Rep Grayson, Grayson actually complimented Palin . . . for having a hand large enough to fit Grayson's entire name on it. He thanked Palin for alleviating the growing shortage of platitudes in Central Florida. Grayson added that Palin deserved credit for getting through the entire hour-long program without quitting....

(Via Mark Kleiman.)

New Rule

What Spiros says about philosophy Q&A goes for all f#$king Q&A. And radio and television call-in programs, too. Also, when you are asking me a question.

(Via Brian Leiter.)

The Roundup

In my capacity as Blogger at the Federal Public Defender, I've taken to doing a "TGIF Roundup" series on Fridays (as you will have guessed from the series title). My brief for the series is to enable members of the federal indigent criminal defense bar in our district to get plugged into the Juristischerzeitgeist of the past week in under 60 seconds. (And maybe get a laugh or two.)

The blog is currently designed mostly for internal use, so there are no bloggy accoutrements like RSS, tags, comments, trackbacks or the like. Still, I thought some readers might be curious, and legal readers might even find it useful, so a link to today's Roundup post is here. An item for the nonlegal readers:

Kind Only to Be Cruel. The AP reports that condemned Ohio inmate Lawrence Reynolds took an overdose of medication in an apparent suicide attempt just hours before his execution, which had been scheduled for Tuesday. Authorities say that Reynolds is recuperating in a Youngstown hospital and should be well enough by next week to be put to death.

Doh! Squared

Daniel Davies (a.k.a. d squared), usually so right about so much, has published two posts in one day on the two topics he consistently gets wrong.

The first is about the "new atheist" v. "accommodationist" debate. It's a tiresome business, made every bit as tiresome by the indiscriminate flailing of the accommodationists as by the ululating polemics of the new atheists. (See how I did that? I mentioned two opposing cohorts, and then positioned myself as socially and philosophically superior to both by using carefully chosen epithets, all without really dealing with the merits of the competing claims. (One can learn much from the accommodationists.))

DD apparently thinks that Dawkins is getting his comeuppance because, after all, his being called an "utter twat" by mean atheists is only a taste of his own medicine. Yes, finally - payback for all those times Dawkins called this religious figure or that an "utter twat." Whatever.*

The second, and far more egregiously wrong, post is about the nylon v. tortex guitar pick debate. DD blithely claims that "[n]ylon is for jazz, tortex is for rock." What utter tosh. Dunlop's Gator Grip picks are superior for both idioms. 

*I realize that the real moral the authors of the linked-to pieces mean to draw is that there is justice in Dawkins' finally being abused by denizens of his own forum, which abuse heretofore had been heaped only upon Dawkins' critics. I'll leave it as an exercise for the reader to spot the gaping hole in this argument.

It's a Calling

In the recently-decided Ninth Circuit case United States v. Cha, Guam police officers seized the home of In Ha Cha and his wife. The seizure was undertaken without a warrant, and would ultimately last 26.5 hours.

At about Hour 7 of the seizure, Mr. Cha, after tending to his wife (who had been arrested),

returned home to find a police officer outside, guarding the house. He called his lawyer, Mr. Van de veld, anxiously recounted the night’s events and told Mr. Van de veld that “the police were still there and would not allow him access to the premises.” Mr. Van de veld told Mr. Cha that he would stop by as soon as he finished his golf game.

Personal Confessions

Eric Schwitzgebel makes out a problem with Kant as a problem for philosophy:

Kant's philosophical moral reasoning appears mainly to have confirmed his prejudices and the ideas inherited from his culture. Therefore, we should be nervous about expecting more from the philosophical moral reasoning of people less philosophically capable than Kant.

More on Stewart Baker

About the only redeeming feature of Stewart Baker's post on the Liz Cheney affair is that its title is phonetically identical to "Moron: Liz Cheney."

I'd like to think that my post has at least one such redeeming feature.

Reasons

The headline of this inane blog post by Stanley Fish (but I repeat myself) asks: "Are There Secular Reasons?"

Paul Gowder has the correct answer: "I sure hope so. Because otherwise there aren’t any reasons at all."

Base Alchemy

Professional journalist Thomas Friedman, in the Paper of Record:

If you combine CO2 with seawater, or any kind of briny water, you produce CaCO3, calcium carbonate.

(Via Daniel Davies, who wonders "about the kind of person who will write such an obviously self-contradictory sentence without even thinking for a moment about how you put NaCl, CO2 and H2O together, and get Calcium anythingate.")

Has Someone Waterboarded Orin Kerr Recently?

I was surprised to see Orin Kerr stipulate that "[w]aterboarding seems to be pretty clearly forbidden under [18 U.S.C. § 2340]," and that "the only fair reading [of the section] is that waterboarding is prohibited by it."

Of course I agree with Orin - the question is a no-brainer. And Orin is a brilliant legal analyst (no snark - he's one of the best legal writers out there), so it wouldn't normally be any surprise to read that he similarly concludes that the question isn't a difficult one.

But I am surprised. Because back in 2007 Orin gave me all sorts of grief for suggesting the question was, well, a no-brainer. I've excerpted our 2007 exchange below the fold (starting with my comment; Orin's comments in official VK pine green):