For the week of August 2, 2010 (cross-posted from the Central District Federal Public Defender blog).
You Might Have Heard. President Obama has signed the Fair Sentencing Act of 2010. Now, if only there were, say, an official body that was authorized to make the reduced sentencing under the Act retroactive...
New DOJ Effort Targets Child Sex Offenders. The Justice Department has announced its National Strategy for Child Exploitation Prevention and Interdiction, which calls for a "comprehensiveness threat assessment of the dangers facing children from child pornography, online enticement, child sex tourism [and] commercial sexual exploitation." As part of its renewed efforts, the DOJ has created 38 new AUSA positions devoted to prosecuting child exploitation cases.
A Yellow Flag for Pineda-Moreno. Parting ways with this and other circuits that have addressed the question, the D.C. Circuit has held that government use of a GPS tracking device to monitor the movements of a defendant's vehicle over an extended period is a "search" for Fourth Amendment purposes. The case is U.S. v. Maynard. (But see U.S. v. Pineda-Moreno.)
Ah, But Do You Have a License to Challenge this Regulation? The American Civil Liberties Union and the Center for Constitutional Rights have filed a lawsuit challenging the constitutionality of a federal regulation that makes it a crime to provide legal services for "specially designated terrorists" without a government license.
Rubashkin Attorneys Move for New Trial, Saying Judge Helped Government Plan Raid. Lawyers for Iowa businessman Sholom Rubashkin, who was sentenced to 27 years for bank fraud, have moved for a new trial based on the presiding district judge's interaction with federal investigators in the raid that led to Rubashkin's arrest. A copy of the motion is here.
None More Black. "I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years." Lord Conrad Black, on his illuminating "28 months as a guest of the U.S. government."
Get Used to It. "Until Wednesday, the thousands of same-sex couples who have married did so because a state judge or Legislature allowed them to. The nation's most fundamental guarantees of freedom, set out in the Constitution, were not part of the equation. That has changed with the historic decision by a federal judge in California, Vaughn Walker, that said his state's ban on same-sex marriage violated the 14th Amendment's rights to equal protection and due process of law." That from the New York Times. More on the story at the San Francisco Chronicle, the Recorder, the Wall Street Journal Law Blog, the Washington Post and Slate. Court documents are available here.
New Rules. The Ninth Circuit Jury Instructions Committee has revised and updated its Manual of Model Criminal Jury Instructions. The updated materials are all available from the Ninth Circuit website, here. A print version of the 2010 edition should be available in about three months, from West Publishing.
The Week in Sausage Making. There was a whole lotta sausage-makin' goin' on this week as the House and Senate scrambled to finish for summer recess. New laws include:
· the Fair Sentencing Act of 2010
(reducing sentencing disparity for crack and powder cocaine offenses
and eliminating mandatory minimum for simple possession of crack
cocaine); and
· the Tribal Law and Order Act of 2010 (revising penalties for sale of misrepresented Indian-produced products).
Measures passed include:
· the Emergency Border Security Supplemental Appropriations Act (Senate and House); and
· S. 3689 (Senate) (to amend copyright law).
Measures introduced include:
· H.R. 5932 (to establish DOJ Organized Retail Theft Investigation and Prosecution Unit);
· H.R. 5934 (to amend 18 U.S.C. § 3501 to assure admissibility of certain confessions by terrorism suspects);
· H.R. 5966 (to enhance U.S. cybersecurity);
· H.R. 5969 (to fight criminal gangs);
· H.R. 6000 (to criminalize denial of healthcare coverage);
· H.R. 6010 (to prohibit extrajudicial killing of U.S. citizens);
· H.R. 6011 (to direct Attorney General to implement enhanced searches of national DNA index);
· H.R. 6027 (to protect youth from exploitation by adults via the internet);
· H.R. 6030 (to ban certain firearms and ammunition);
· H.R. 6059 (to provide for deferred sentencing and possible dismissal for drug offenders);
· H.R. 6062 (to remove criminal aliens incarcerated in U.S.);
· H.R. 6063 (to enhance safety of elementary and secondary schools);
· S. 3397 (to provide for take-back disposal of controlled substances);
· S. 3707 (to provide habeas corpus review for certain enemy belligerents);
· S. 3721 (to provide emergency supplemental appropriations for border security);
· S. 3727 (to amend federal stalking offense).
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Monday (18 U.S.C. § 1709 "theft of mail" does not require specific intent to permanently deprive owner of items removed from mail).
· Cheney v. Washington
(habeas) (though trial counsel had failed to object to improper
vouching, state court's denial of IAC claim was not unreasonable
application of Strickland).
· Kawashima v. Mukasey
(immigration) (second superseding opinion, denying review by panel and
en banc, adding statement that in all tax fraud cases government is a
"victim" within 8 U.S.C. § 1101(a)(43)(M)(i) definition of "aggravated
felony") ("The panel reads one phrase of the statute in isolation,
ignoring the very next phrase in the same sentence," thus "render[ing]
another statutory provision superfluous," reaching a decision that
"will lead to absurd results in other cases." (Graber, J., dissenting
from denial of rehearing en banc)).
SCOTUS Focus. The Supreme Court continues in recess until October 4. ScotusWiki has made new briefing available in the following cases:
· Harrington v. Richter
(whether Sixth Amendment requires defense counsel to investigate or
present available forensic evidence supporting defense theory used at
trial rather than merely rely on cross-examination and other methods of
creating reasonable doubt) (whether AEDPA deference applies to state
court's summary disposition).
· Premo v. Moore (whether Fulminante
standard applies to collateral challenge based on defense attorney's
decision not to move to suppress confession prior to guilty or no
contest plea where no trial record is available, and if so whether it
is clearly established federal law).
Short Circuits - other persuasive authority.
· U.S. v. Maynard (D.C. Cir.) (government's prolonged, warrantless monitoring of defendant's vehicle by GPS violated Fourth Amendment).
· U.S. v. Williams
(6th Cir.) (upholding suppression of physical evidence and defendant
statements police secured after they had pulled up to group of people,
alighted, approached and then erroneously accused defendant of
trespassing).
· U.S. v. Moore
(6th Cir.) (upholding suppression of evidence from search after traffic
stop, where officers had no probable cause or reasonable fear for their
safety, notwithstanding that defendant tried to leave as officers
undertook second search).
· U.S. v. Ciesiolka (7th
Cir.) (district court abused its discretion in providing only
"perfunctory" explanation why evidence offered under Rule 404(b)
satisfied Rule 403, where evidence included testimony of uncharged
sexual conduct, offensive IM conversations with third parties, and many
images of child pornography).
· U.S. v. Williams (7th Cir.) (18 U.S.C. § 922(g)(1) felon-in-possession may be subject to overbreadth challenge by nonviolent felon).
For the Bookworms - New books and scholarly articles of note.
· "The
Gatehouses and Mansions: Fifty Years Later," Richard A. Leo & K.
Alexa Koenig, 6 Ann. Rev. L. & Soc. Sci. 19 (forthcoming, 2010) (SSRN)
(gives a précis of Yale Kamisar's groundbreaking article and its role
in the Supreme Court's most important criminal-procedure decisions (Miranda, in particular), along with a useful review of empirical studies of the effects of Miranda and its progeny).
· The Last Gasp: The Rise and Fall of the American Gas Chamber, Scott Christianson (2010) (Amazon)
(charts the 75-year history of gas chamber execution and its
relationship to America's ongoing debate about capital punishment).
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Suggestions or corrections? Email Michael_Drake@fd.org.
