(X-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
News to Use | New Rules | Top of the Ninth | SCOTUS Focus | Short Circuits | The Week in Sausage Making | For the Bookworms
Lead & Crime. "New research finds Pb [i.e., lead] is the hidden villain behind violent crime, lower IQs, and even the ADHD epidemic." Kevin Drum writes for Mother Jones. Drum also has this interesting supplement to the main article, focusing on earlier data based on lead paint-use plotted against data on murder rates.
Crack Sentencing Data. The latest from the USSC is out, available here. (H/T Berman.)
New Rules. In case you missed the "blast," two new procedures instituted in the Ninth Circuit. First, telephonic requests to extend time to file briefs will be phased out in favor of a streamlined request via ECF. Second, electronic submission of excerpts is now encouraged, and will be required as of March 1. (Paper copies will still be required, as before.)
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Pleasant
(defendant was not eligible for §3582(c)(2) sentence reduction under
Fair Sentencing Act guideline amendment because the "applicable
guideline range" in his case was the Career Offender range specified in
plea agreement).
• U.S. v. Yi
(in Clean Air Act case, district court did not err in giving or
formulating deliberate ignorance jury instruction, in applying sentence
enhancement for substantial likelihood of death or serious bodily
injury, or in applying organizer/leader role enhancement).
• U.S. v. Xu
(in RICO case, crimes were not "extraterritorial" because enterprise,
though foreign-based, involved racketeering activities in United States,
namely, immigration fraud) (evidence was sufficient for money
laundering and transportation conspiracies, which did not require
government to trace any actual transactions, and jurisdictional
requirements were met because transactions occurred in United States)
(videotaped testimony at trial was properly handled, and Confrontation
Clause was not violated) (challenges to jury instructions that related
to burden shifting, Chinese law, variance/constructive amendment, theory
of defense, aiding and abetting, "on or about," and incomprehensibility
of Chinese names presented to jury were "meritless") (applying 2007
guidelines for conspiracy that ended in 2004 was not ex post facto
violation) (foreign conduct here should not have been counted as
relevant conduct under the guidelines). Ninth Circuit Blog's analysis here.
• U.S. v. Phillips
(mailing of watch purchased with funds derived from scheme was not
relevant use of mails for mail fraud) (earnest-money deposit and down
payment on condominium were classic money laundering transactions
peripheral to fraudulent scheme, so that government did not need to
prove, and jury did not need to be instructed, that "proceeds" meant
"profits" rather than "gross receipts") (prosecutor's statements in
closing argument about defendant's "lying" were not improper) (release
condition that defendant not "frequent places where controlled
substances are illegally sold..." etc. was not vague or overbroad) (Apprendi does not require jury finding for money forfeiture under §2461(c)). Ninth Circuit Blog's analysis here.
• U.S. v. Lee
(first of two convictions under California Health & Safety Code
§11352(a) was pleaded in conjunctive and therefore did not qualify as
career offender prior) (second conviction did qualify on modified
categorical analysis, despite district court's failure to make special
findings and despite "transport or sell" language on form abstract of
judgment).
• Henderson v. Johnson (§2254) (district courts still must grant leave to amend mixed petitions to delete unexhausted claims, notwithstanding Sherwood v. Tomkins, and in any case all claims here were exhausted).
SCOTUS Focus. The Court granted cert in U.S. v. Davila, which concerns whether any degree of judicial participation in plea negotiations automatically requires vacatur of a defendant's plea. The Court will hear argument next week in Descamps v. U.S. on (basically) whether Aguila Montes de Oca gets the modified categorical approach right; SCOTUSblog previews the case here.
Short Circuits.
• U.S. v. Caronia (2d Cir.) (encouraging people to put FDA-approved drugs to non-approved use is not "misbranding"). (H/T)
• Swart v. Insogna (2d Cir.) (civil) (flipping bird at police is not disorderly conduct). (H/T)
• U.S. v. Watson (4th Cir.) (three-hour detention of building occupant without probable cause while police obtained warrant was unreasonable). (H/T)
• U.S. v. McRae et al.
(5th Cir.) (in case involving three defendant police officers convicted
of offenses arising out of death in the wake of Katrina, one was
improperly denied severance from codefendants' trial, another was
convicted on insufficient evidence, and third was properly granted new
trial). (H/T)
• U.S. v. Sharma
(5th Cir.) (restitution amount in healthcare fraud case was based in
part on victim impact statements claiming losses outside the charged
period). (H/T)
• U.S. v. Ross (6th Cir.) (defendants may not waive counsel at competency hearing). (H/T)
• U.S. v. Cochrane (6th Cir.) (in felon in possession case, failure to explain consecutive sentencing was abuse of discretion). (H/T)
• U.S. v. Engelmann
(8th Cir.) (district court abused discretion by denying request for
evidentiary hearing in light of alleged conversation between government
witnesses in apparent violation of sequestration order). (H/T)
• U.S. v. Grimes (8th Cir.) (harassment counts based on repeated
messages defendant left over six days were multiplicitous because calls
were part of single ongoing course of conduct). (H/T)
• U.S. v. Santistevan
(10th Cir.) (non-English-speaking defendant unambiguously invoked right
to counsel by handing agent letter from defense counsel that stated
defendant did not want to speak without counsel present). (H/T)
• U.S. v. Lott (D. Vt.) (SORNA registration is invalid under Commerce Clause as interpreted in NFIB v. Sebelius, though district court here was still bound by Second Circuit law to the contrary).
The Week in Sausage Making. New public laws include H.R. 5949 (extends FISA amendments); H.R. 6029 (NB - may be awaiting President's signature) (increased penalties for foreign and economic espionage).
For the Bookworms - New books and scholarly articles of note.
•
"Real-time and Historic Location Surveillance after United States v.
Jones: An Administrable, Mildly Mosaic Approach," Stephen E. Henderson,
J. Crim. L. & Criminology (forthcoming) (SSRN).
• "Putting Desert in Its Place," Christopher Slobogin & Lauren Brinkley-Rubinstein, Stan. L. Rev. (2013) (SSRN)
(argues that if crime control is the objective, the criminal justice
system is better off pursuing utilitarian goals rather than relying on
desert as its linchpin).
• "Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny," Mary Bowman, working paper (SSRN)
(examines how cognitive biases can affect each stage of the search
warrant process, and suggests procedural checks and revised standards
for review).
• "The Presumption of Punishment," Shima Baradaran, from Criminal Law & Philosophy, forthcoming (SSRN) (argues that due process requires that judges not determine facts or punish individuals before a trial has occurred).
•
"Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh,
and the Sixth Amendment Confrontation Clause," Ben Trachtenberg, 64 Fl.
L. Rev. 1669 (2012) (SSRN) (argues against confining the Crawford doctrine to testimonial statements).
• "Incarceration's Incapacitative Shortcomings," Kevin Bennardo, working paper (SSRN).
• "The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making," National Institute of Justice report (2012) (pdf) (study based on data collected from two county prosecutor offices).
•
"After United States v. Jones, After the Fourth Amendment Third Party
Doctrine," Stephen E. Henderson, N.C. J. L. & Tech. (2013) (SSRN).
•
"Ending the Zero-Sum Game: How to Increase the Productivity of the
Fourth Amendment," Ric Simmons, Har. J. L. & Pub. Pol'y (2012) (SSRN) (analyzes the "productivity" of different surveillance methods, and offers suggestions for positive-sum improvements).
• "Military Veterans, Culpability, and Blame," Youngjae Lee, Crim. L. & Phil. (2013) (SSRN)
(argues that rather than respect for military service or peculiar
stresses that attend combat, the reason military veterans may be less
culpable is the State's own hand in producing his criminality).
• "Narrative, Truth & Trial," Lisa Kern Griffin, 101 Geo. L.J. 281 (2012) (SSRN)
(argues that the "story model" of narrative's function at trial is
incomplete, and adopts a hybrid framework to bring out sources of bias
and error and suggest improvements in trial mechanics).
•
"Challenges and Opportunities in Bringing the Lessons of Cultural
Competence to Bear on Capital Jury Selection," Bidish Sarma, 42 U. Mem.
L. Rev. 907 (2012) (SSRN).
• "Repudiating the Narrowing Rule in Capital Sentencing," Scott Howe, BYU L. Rev. (2012) (SSRN).
• "'Children are Different': Constitutional Values and Justice Policy," Elizabeth S. Scott, Oh. St. J. Crim. L. (2013) (SSRN) (draws four lessons from Miller and Graham)).
•
"Crime, Punishment, and Politics: An Analysis of Political Cycles in
Criminal Sentencing," Carlos Berdejo & Noam Yuchtman, Rev. Econ.
& Stat., forthcoming (SSRN) (presents evidence that sentencing discretion of elected judges is influenced by political pressures).
• The Supreme Court and the Fourth Amendment's Exclusionary Rule, Tracy Maclin, Oxford U. Press (2012) (Amazon).
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Suggestions or corrections? Email Michael Drake.
