(Cross-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
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FSA "Crack" Sentencing Amendments Retroactive. The United States Sentencing Commission this week unanimously voted to apply parts A and C of the now-permanent Fair Sentencing Act amendments retroactively, effective Nov. 1, 2011. More at Sentencing Law and Policy.
Shift in Federal Fraud Prosecutions. USA Today reports that the Obama administration is focusing more on frauds involving mortgage lending, financial institutions, Medicare and government insurance for the elderly, and less on fraud involving food stamps or other benefits.
A Snitching Angle in the Bulger Case. The Washington Post reports on how James "Whitey" Bulger's capture "could cause trouble inside the FBI." Related background at the New York Times.
14,400. That's how many inmates California will have to release from its prison population in the next year, pursuant to a federal court order issued this week. According to the Los Angeles Times report linked to, one tack taken by state law makers has been to "transfer thousands from state prisons to county jails."
On the Wires and Tubes. The PBS series "Frontline" investigates several questionable convictions in sudden child death cases. NPR has more on the topic.
New Rules. The Central District has issued new general orders covering prompt disposition in criminal cases, the selection of grand and petit jurors, and management of court interpreters.
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Chapman (civil/criminal) (affirming district court's denial of motion for fees and costs after fraud prosecution was dismissed with prejudice as sanction for government misconduct).
· Schleining v. Thomas (habeas) (petition was not entitled to BOP good time credit for time spent in state custody on charges related to federal charges before his federal sentencing, notwithstanding district court's order that federal sentence would run concurrent to unfinished state sentence).
· Bible v. Schriro (habeas) (denying direct request to file second or successive § 2254 petition in district court and request to stay execution based on appointment of FPD; inculpatory evidence was overwhelming, and petitioner's 10-year delay in seeking DNA testing was indiligent).
· U.S. v. Snyder (felony attempt to elude police under Oregon state was categorical violent felony under ACCA residual clause) (defendant's no contest plea to Oregon burglary necessarily admitted facts necessary to establish generic burglary). UPDATE (7.5.11): Ninth Circuit Blog analysis here.
Ramirez-Villalpando v. Holder (immigration) (amended opinion deletes statement that petitioner's grand theft conviction was final for purposes of removal and BIA review).
SCOTUS Focus. SCOTUSblog's got the final Term 2010 stat pack (with raw data) here. The opinions and orders below are the last of the term. The Court will be on recess until October.
· Brown v. Entm't Merch. Assoc. (civil) (California ban on selling or renting violent video games to minors violates First Amendment).
· U.S. v. Juvenile Male (per curiam) (vacating Ninth Circuit decision in ex post facto case upon Montana Supreme Court's clarifying that defendant's state law duty to remain registered as sex offender continues regardless of whether federal supervision conditions are valid).
· Derby v. U.S. (denying cert) (Scalia, dissenting, argues that "our ACCA cases are incomprehensible to judges" so fail to give "'person[s] of ordinary intelligence fair notice' of its reach").
· U.S. v. Jones (granting cert on whether warantless use, or warrantless installation, of GPS tracker on vehicle to monitor its movements violates Fourth Amendment). Orin Kerr blogs the issue here.
· Martel v. Clair (granting cert on whether state prison in federal habeas proceedings is entitled to substitute court-appointed counsel where he alleges counsel failed to pursue potentially important evidence).
· Messerschmidt v. Millender (granting cert on whether officers who searched residence with facially valid warrant were entitled to qualified immunity, and whether Leon and Malley should be reconsidered).
· Williams v. Illinois (granting cert on whether Confrontation Clause is implicated when expert relies on results of DNA analysis conducted by others as basis for opinion testimony).
· FCC v. Fox Television (granting cert on whether FCC indecency-enforcement regime violates First Amendment).
Sackett v. EPA (granting cert on whether pre-enforcement judicial review of administrative compliance order is available under APA and, if not, whether that violates due process).
· U.S. v. Gonzalez (GVR'ing to the Ninth Circuit in light of Davis).
Short Circuits, Solid States, and other persuasive authority.
· U.S. v. Gravel (2d Cir.) (§ 2K2.1(a)(5) machine gun enhancement did not apply to Colt machine gun retrofitted to fire only semi-automatically).
· Showers v. Beard (3d. Cir.) (habeas) (in noncapital case, trial counsel's failure to present expert testimony to rebut prosecution's main theory, and appellate counsel's failure on direct appeal to challenge trial counsel's effectiveness, were both IAC).
U.S. v. Orocio (3d Cir.) (Padilla applies retroactively).
· Jackson v. Kelly (4th Cir.) (habeas) (oversized habeas brief and motion to permit extra pages were properly filed for purposes of tolling, and in any case would have qualified for equitable tolling, where petitioner was directed to file corrected petition in timely manner).
· Matthews v. Parker (6th Cir.) (habeas) (prosecutor's comments during closing arguments about petitioner's "collusion" with attorney and doctor were prosecutorial misconduct requiring vacatur of conviction and death sentence).
· U.S. v. Little (6th Cir.) (ending conversation with officer and walking into house is not invitation to officer to enter).
· U.S. v. Ladson (11th Cir.) (vacating life sentence because government did not properly serve defendant with notice of § 851 enhancement) (service was also not a fact appropriate for judicial notice, nor were oral summary of notice or defendant's actual knowledge of filing of notice valid substitutes).
U.S. v. Mathurin (S.D. Fla.) (mandatory 307-year term for juvenile charged with stacked § 924(c)s violates Eight Amendment under Graham).
The Week in Sausage Making. A bill to abolish California's death penalty was introduced in the state legislature this week. Story here. Federal measures introduced this week include include S. 1301 (would enhance measures against trafficking in persons); S. 1305 (would clarify that Congress does not authorize persons convicted of dangerous crimes in foreign courts to possess firearms); S. 1308 (would amend child pornography and exploitation offenses).
For the Bookworms - New books and scholarly articles of note.
· "A Primer on Batson, Including Discussion of Johnson v. California, Miller-El v. Dretke, Rice v. Collins, & Snyder v. Louisiana," Mikal C. Watts and Emily C. Jeffcott," 42-2 St. Mary's L.J. 337 (2011) (link n/a).
· "Evaluating the Effectiveness of Sex Offender Registration and Notification Policies for Reducing Sexual Violence against Women," Elizabeth J. Letourneau et al., National Institute of Justice report (2011) (pdf) (study findings indicate SORNA registration has significant general deterrence effect, but no significant deterrence effect on recidivism).
· "Reinvigorating Actus Reus: The Case for Involuntary Actions by Combat Veterans with Post-Traumatic Stress Disorder," Melissa Hamilton, Berkeley J. Crim. L. (forthcoming) (SSRN) (argues that studies on PTSD support conceptualizing PTSD-associated violence as automatism and therefore not intentional, an argument buttressed by emphasis in modern combat training on muscle memory and reflexive responses as adaptive survival behaviors in combat).
· "Prosecutors and Bargaining in Weak Cases: A Comparative View," Jenia Iontcheva Turner, from Transnational Perspectives on Prosecutorial Power, Erik Luna & Marianne Wade, eds., Oxford U. Press (forthcoming) (SSRN) (examines how U.S., Germany and Japan regulate, or don't regulate, plea bargaining in weak cases).
· "Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads," Joshua Bowers, Nw. U. L. Rev. (forthcoming) (SSRN) (argues that to the extent excessive prosecutorial caseloads identified by other authors exist, they are symptomatic of prosecutors' inadequate exercise of charging discretion).
· "The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance?," Rodney J. Uphoff, 62 Hastings Law Journal 1177 (2011) (SSRN) (ultimately advocates the Rule 4-4.6, return-to-the-source approach contra that taken by most courts and by the Restatement).
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Suggestions or corrections? Email Michael_Drake@fd.org.
