For the week of January 24, 2011 (cross-posted from the C.D. Cal. Federal Public Defender blog).
Tablets of the Law. County prosecutors in Texas are using iPads to conduct Facebook searches of potential jurors, says the ABA Journal.
LI Mini-Roundup. Doug Berman links to a few lethal injection stories published this week.
Now That's Harsh Sentencing. "Judge Rules White Girl Will Be Tried As Black Adult." Story at the Onion.
· U.S. v. Gonzalez-Diaz (defendant unlawfully in United States for a time who later unlawfully entered Canada, was caught there after a brief stay, and then was delivered back to U.S. authorities at the border, was "found in" United States) (leaving open the question of whether up is down or down up).
· U.S. v. Carothers (retrial on possession with intent to distribute after improper mistrial on lesser-included simple possession was not double jeopardy and did not violate right under Jackson to have lesser-included instruction) (district court may require defendant to waive double jeopardy on retrial on lesser-included offense if he requests an instruction on that offense).
· U.S. v. Jenkins (in case involving pump and dump scheme, government's supplemental application under 18 U.S.C. § 3292 for suspension of limitations period adduced sufficient evidence) (district court's suspension order dating back to government's request to Canada for evidence was not error, and revived any limitations periods that had expired between request and application) (suspension lasted until Canada took final rather than interim action, by providing certified copies of requested records) (evidence was sufficient to sustain findings regarding materiality of statements at issue in fraud counts, intent to defraud, tax evasion, and money laundering financial transactions and international concealment) (variance between indictment and evidence was not prejudicial) (government met burden of proof that funds were "profits") (money laundering instructions including "securities fraud and wire fraud" instead of "prior criminal activity" could not have affected verdict) (denial of motions for severance and additional cross was not error) (loss was correctly calculated and sentence was reasonable). UPDATE (1.31.11): Ninth Circuit Blog's analysis here.
· U.S. v. Burgum (district court used guidelines as "starting point" despite its statement about "working from the statutory maximum and building downward") (180-month sentence in the face of 108-month sentence recommended by both parties and probation officer was not unreasonable, nor was district court bound by sentences imposed in similar cases) (district court's treatment of inability to pay restitution as an aggravating factor was plain error).
· U.S. v. Potter (18 U.S.C. § 924(c)(1)(A) possession of firearm in furtherance of drug trafficking is constitutional under Heller...) (...and so defendant's related proposed instruction was not required).
· U.S. v. Leyva-Martinez (per curiam) (Almendarez-Torres not overruled by Nijhawan) (Laurico-Yeno forecloses challenge to California PC § 273.5 corporal injury of spouse or cohabitant as a § 2L1.2(b)(1)(A)(ii) "crime of violence").
· U.S. v. Munoz-Camarena (on rehearing, finding district court's application of § 2L1.2(b)(1)(C) "aggravated felony" enhancement based on three prior state simple possession counts was error under Carachuri-Rosendo).
· U.S. v. Lichtenberg (district court's inclusion of state conviction for breach of domestic relations protective order in criminal history calculation was proper) (disparity with 2006 "average" of sentences for fraud and money laundering did not render defendant's sentence unreasonable).
SCOTUS Focus. The Court's relisting of two cases have commentators wondering whether the Court might be mulling another look at Almendarez-Torres. Crime and Consequences has this handy list of cases before the Court this term, organized by issue. The Court's opinions and orders this week are below.
· Swarthout v. Cooke (per curiam) (federal habeas relief is not available for an error of state law, and federal due process does not require correct application of California's "some evidence" standard).
Grants of Certiorari:
· Howes v. Fields (whether Supreme Court precedent clearly establishes that under § 2254 a prisoner isolated from the general prison population and questioned about conduct occurring outside the prison is per se "in custody" for purposes of Miranda).
· Reynolds v. U.S. (whether SORNA is valid).
Short Circuits - other persuasive authority.
· U.S. v. Brown (3d Cir.) (fabrication in search warrant affidavit was material, false and in bad faith, and so required exclusion); cf. Frankfurter, H.G. (2005).
· U.S. v. King (4th Cir.) (district court was required to order government to disclose grand jury testimony of witness who did not testify at trial, where witness's relationship with defendant was relevant to defense testimony given).
· U.S. v. Williams (4th Cir.) (use of stipulation without defendant's consent violated Confrontation Clause).
· U.S. v. Shannon, No. 10-10599 (11th Cir.) (prior Florida conviction for purchase of cocaine was not "controlled substance offense" under guidelines).
· Catlin v. Superior Court (Cal.) (habeas) (California trial courts cannot deny Steele motions as "untimely").
The Week in Sausage Making. New public laws include H.R. 6412, which requires the Attorney General to share criminal records with state sentencing commissions. Measures introduced include H.R. 399 (permanent residence for aliens with Ph.D. in certain technical fields); H.R. 410 (compensation for states incarcerating undocumented aliens charged with a felony); H.R. 416 (amnesty period for veterans and families to register firearms); H.R. 478 (foreign terrorists linked to terrorist networks = "enemy combatants"); H.R. 484 (clarification of personal privacy exemption to FOIA); H.R. 495 (immunity for reports of terrorism or suspicious behavior); H.R. 496 (carrying of firearm near federal official during event or discharge of duties); H.R. 505 (limitations on firearm possession etc. for child-sex offense misdemeanants); S. 6 (immigration reform); S. 8 (national security); S. 21 (cyber attacks); S. 32 (large-cap. ammunition feeders); S. 34 (AG authority to deny transfer/issuance of firearms/explosives to known or suspected terrorists); S. 132 (creation of Forensic Science Office and Board); S. 149/H.R. 514 (extension of PATRIOT, etc.); S. 167 (minors across state lines to circumvent parental involvement in abortion decisions); S. 175 (federal enforcement assistance in preventing violence against children); S. 180 (reformation of prison work programs); S. 207 (funding for COPS ON THE BEAT); S. 216 (criminal penalties for international violations involving misbranding/altering food).
For the Bookworms - New books and scholarly articles of note.
· "'Death is Different' No Longer: Graham v. Florida and the Future of Eight Amendment Challenges to Noncapital Sentences," Alison Siegler & Barry Sullivan, Sup. Ct. Rev. (forthcoming 2011) (SSRN) (traces path to the Graham Court's decision to apply the categorical approach to a noncapital case, and analyzes the decision's likely impact on cases involving mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicide offenses).
· "Bifurcated Review of Interpreter Determinations Under the Court Interpreters Act," David H. Chao, 10-1 Conn. Pub. Int. L.J. 139 (2010) (SSRN) (argues that determinations under the Act should reviewed as mixed questions).
· "An Equilibrium-Adjustment Theory of the Fourth Amendment," Orin S. Kerr (working paper) (SSRN) (argues that courts do, as they ought to, adjust the scope of Fourth Amendment protection in response to new facts to stabilize government's search & seizure power).
Suggestions or corrections? Email Michael_Drake@fd.org.