New Rules. The Sentencing Commission voted to promulgate new guideline amendments. Of
particular note, §3E1.1 as amended would provide that the government
should not withhold the third point to induce an appeal waiver. Barring
congressional action, the amendments will take effect November 1.
Top of the Ninth - 9th Cir. decisions released during the week.
U.S. v. Yuman-Hernandez
(to establish lack of predisposition for finding of sentencing
entrapment in fictitious stash house robbery, defendant need only show
lack of intent or of capability to deal in quantity of drugs charged).
More on the case from California Appellate Report (via Simple Justice). UPDATE (4.15.13): Ninth Circuit Blog's analysis here.
U.S. v. Dapolito (1st Cir.) (police failure to find defendant's name wasn't reasonable suspicion that we was wanted fugitive). (H/T)
U.S. v. Baird
(1st Cir.) (defendant in 922(j) case who accepted neighbor's offer to
sell him gun then returned it two days later was entitled to innocent
possession instruction). (H/T)
U.S. v. Demmitt
(5th Cir.) (testimony by government witness that he had sworn to
factual resume in his own plea was inadmissible hearsay and not
on-the-stand admission that they were true statements). (H/T)
U.S. v. Logan
(8th Cir.) (defendant's crack-cocaine sentence as subsequently lowered
on government's Rule 35(b) motion was "based on" higher range specified
in (c)(1)(C) agreement, and because Rule 35(b) motion was like
substantial assistance motion, defendant was now eligible under §3582(c)(2) for reduction to sentence below statutory minimum). (H/T)
For the Bookworms - New books and scholarly articles of note.
"Dirty Silver Platters," Wayne A. Logan, Ia. L. Rev. (SSRN)
(takes a comprehensive look at improper working arrangements, and sets
out "a reinvigorated framework to smoke out forum government agent
"Toward a Right to Litigate Ineffective Assistance of Counsel," Ty Alper, Wash. & Lee L. Rev. (SSRN).
"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness," E. Lea Johnston, J. Crim. L. & Criminology (SSRN).
"Retribution and Revenge in the Context of Capital Punishment," Robert F. Schopp, working paper (SSRN).
Note - "On the Invalidation of Terms in Contracts of Adhesion," Andrew Tutt, Yale J. Regulation (SSRN)
(argues that terms that place risk of loss on costlier cost-avoider or
that grant to one party an option to impose nonreciprocal costs on the
other should be invalidated).
"Terrorism and Associations," Ashutosh Avinash Bhagwat, Emory L.J. (SSRN) (identifies and analyzes First Amendment issues raised by the domestic War on Terror).
"Notes on a Terrorism Trial - Preventive Prosecution, 'Material Support' and the Role of the Judge after United States v. Mehanna," George D. Brown, 4 Harv. Nat'l Sec'y J. 1 (2013) (SSRN) (looks at the preventive-prosecution aspects of the case, and at the challenges the court encountered in applying Holder v. Humanitarian Law Project to terrorism-related speech).
"Race and the Disappointing Right to Counsel," 122 Yale L. Rev. ___ (SSRN) (argues that Gideon may have exacerbated racial disparities in prison).
Confessions of Guilt: From Torture to Miranda and Beyond, George C. Thomas III & Richard A. Leo (2012) (Amazon) (excerpts available at SSRN).
___________________ Suggestions or corrections? Email Michael Drake.
Helpful Stats on Pretrial Release. The Bureau of Justice Statistics has put out a new report on pretrial release here.
Among other things, the data show that only 19 percent of federal
defendants on release committed pretrial misconduct - and most of those
violations were technical.
TRACking Judge-to-Judge Workload Disparity. A new report
out from Transactional Records Access Clearinghouse shows "wide
variations in the criminal caseloads of individual federal district
court judges." One of the federal courthouses with the most extreme
disparities: Los Angeles.
The Fortnight in Gunn. Carl Gunn's latest posts are (as usual) worth flagging - the first, a follow-up to an earlier post on materiality and bank fraud-related cases; the second, a reminder/primer about using the McNabb-Mallory rule to keep confessions out.
Top of the Ninth - 9th Cir. decisions released during the week. • Johnson v. Uribe
(§2254) (order amending opinion and denying reh'g of decision that held
district court's grant of conditional writ an insufficient remedy for
Sixth Amendment violation). • U.S. v. Zamorano-Ponce (Washington state "rape of a child in the third degree" is categorically "statutory rape" within §2L1.2(b)(1)(A)(ii)). See Ninth Circuit Blog's analysis here. • Carrera v. Ayers (§2254) (en banc) (in pre-AEDPA case, district court properly denied Batson
claim where petitioner could not establish prejudice that challenges to
Hispanic jurors were biased, nor that objection based on state decision
in Wheeler would have succeeded on direct appeal on law then applicable). • U.S. v. Maloney
(district court's denial of defense request for surrebuttal was not
abuse of discretion, nor was denial of defendant's motion to excuse
prospective juror who initially admitted bias but ultimately asserted
ability to be impartial). See Ninth Circuit Blog's analysis here. • Stokley v. Ryan (order) (motion to stay mandate in capital case for remand and evidentiary hearing to prove "abandonment" by counsel under Maples denied).
SCOTUS Focus. Grants of Certiorari: • Peugh v. U.S.
(Whether using guidelines in effect at times of sentencing rather than
at time of offense violates Ex Post Facto Clause if doing so creates
significant risk of longer sentence). • Maryland v. King (Whether Fourth Amendment allows DNA collection from charged arrestees). Oral Argument: • Evans v. Michigan
(Whether Double Jeopardy Clause bars retrial after judge erroneously
held particular fact to be element and then directed verdict of
acquittal for prosecutor's failure to prove it). • Smith v. U.S.
(Whether defendant's proven withdrawal from conspiracy shifts burden to
government to prove defendant's membership in conspiracy).
Short Circuits. • U.S. v. Marquez (1st Cir.) (drug quantity in crack cocaine distribution case was unsupported). (H/T) • U.S. v. Nkansah
(2d. Cir.) (evidence that defendant had spoken to coconspirators about
which banks would be least likely to discovery bank fraud scheme was
insufficient to show intent to defraud). (H/T) • U.S. v. Gupta (2d Cir.) (district court improperly excluded public from courtroom). (H/T) • U.S. v. Lacey
(2d Cir.) (fraud guideline mass-marketing enhancement requires those
targeted in marketing be victimized) (district court's record findings
were insufficient to conclude straw buyers targeted by radio ads in
mortgage fraud scheme were victims). (H/T) • U.S. v. Murray (5th Cir.) (MVRA does not authorize district court to reopen judgment six months after entered to add order of restitution). (H/T) • U.S. v. Newsome (6th Cir.) (search of jacket found in kitchen during protective sweep violated Fourth Amendment). (H/T) • U.S. v. Miller (8th Cir.) (vacatur required where "confused sentencing record" left drug quantity finding in doubt). (H/T) • U.S. v. Bellaizac-Hurtado
(11th Cir.) (Maritime Drug Offenses Act was unconstitutional as applied
to drug trafficking conspiracy, which is not an offense against
customary international law). (H/T) • U.S. v. Woodard
(10th Cir.) (district court improperly barred cross of witness about
prior judicial determination that witness was not credible). (H/T) • U.S. v. Frierson (10th Cir.) (convictions for cocaine distribution were plainly multiplicitous). (H/T) • U.S. v. Fair (D.C. Cir.) (restitution amount ordered under MVRA was unsupported by record). (H/T)
For the Bookworms - New books and scholarly articles of note. • "Racial Disparity in the Criminal Justice Process: Prosecutors, Judges, and the Effects of United States v. Booker," Sonja B. Starr & M. Marit Rehavi, research paper (2012) (SSRN) (argues based on data analysis that Booker did not increase disparity, and may have reduced it). • "Prosecutorial Conflicts of Interest in Post-Conviction Practice," Keith Swisher, Hofstra L. Rev. (2013) (SSRN). • "Aggregation and Urban Misdemeanors," Alexandra Natapoff, Fordham Urb. L.J. (2013) (SSRN)
(argues that because the aggregating of persons at different levels of
the misdemeanor system weakens and sometimes eliminates individuated
scrutiny, the system should not be considered entirely criminal). • "Proving Prejudice for Ineffective Assistance Claims after Frye," Carissa Byrne Hessick, Fed. Sent'g Rep. (2012) (SSRN). • "Culpability, Deterrence, and the Exclusionary Rule," Kit Kinports, Wm. & Mary Bill Rts. J. (2012) (SSRN) (argues focus in exclusionary rule analysis should not be just on deterrence). • "Prosecutors Hide, Defendants Seek: The Erosion of Brady through the Defendant Due Diligence Rule," Kate Weisburd, 60 UCLA L. Rev. 138 (2012) (SSRN). • "Challenges to Terry for the Twenty-First Century," Richard Myers, Miss. L.J. (2012) (SSRN). • "The Need to Carefully Interpret the Statistics Reporting the Accuracy of a Narcotics Detection Dog: Application to South Dakota v. Nguyen, State of Florida v. Harris, and Similar Cases," Joseph L. Gastwirth, working paper (2012) (SSRN). •
"How Much Difference Does the Lawyer Make? The Effect of Defense
Counsel on Murder Case Outcomes," James M. Anderson & Paul Heaton,
122 Yale L.J. 154 (2012) (pdf).
___________________ Suggestions or corrections? Email Michael Drake.