The FPD’s TGIF Roundup—Post-Memorial-Day-Weekend Catch-Up Edition

For the fortnight ending May 29, 2015

In this edition:

News to Use | Top of the Ninth |
SCOTUS Focus | Short Circuits | For the Bookworms

News to use

• You’re All Out: scheming Orange County prosecutors and police finally get caught (Slate)
• Faced With Legal Puzzles, Judges Often Turn to Fellow Jurists (New York Times)
• Nebraska Death Penalty Repealed over Governor’s Veto (SOURCE) (H/T)
• Has death penalty administration now become a “testing ground for toxic drugs”? (SL&P)
• How Do You Define a Gang Member? (New York Times)
• Improve Delivery By Perfecting Your ‘TED Moves’ (Persuasive Litigator)
• The Fortnight in Gunn: An Update on the 2015 Guidelines Amendments & It’s Not All About the Money (Carl Gunn)

Top of the Ninth

• Zavala v. Ives (time in ICE custody pending potential prosecution must be credited by BOP).
• U.S. v. Johnston (possession of child pornography is lesser included of receipt, conviction for both based on same conduct violates double jeopardy, and record here did not show that dual convictions were based on separate conduct) (evidence from chat records was sufficient to prove conspiracy to produce child pornography, despite that photos defendant received had been produced months before chats) (computer search was within scope of warrant) (district court did not violate Rule 32 or Carty, and district court’s admonishing defendant for failure to apologize did not rest on adverse inference from silence). UPDATE (6.8.15): More at Ninth Circuit Blog.
• U.S. v. Martinez (Washington third-degree child molestation, Rev. Code §9A44.089 is not categorical sexual abuse of minor/aggravated felony, and is not divisible). UPDATE (6.1.15): More at Ninth Circuit Blog.
• U.S. v. Swisher (order for en banc review, where panel had held wearing military medals was not protected by First Amendment).
• Garcia v. Lynch (immigration) (petitioner’s waiver wasn’t considered and intelligent because it was based on IJ’s incorrect advice that his prior for grand theft, CPC §487(a) was an aggravated felony; in fact, it is “doubly overbroad,” and assuming it’s divisible, government failed to make showing on modified categorical approach) (Berzon concurring would hold that finality provision under 8 C.F.R. §1003.39 violates INA).
• Doe v. Ayers (order denies reh’g, further explains decision to redact petitioner’s name).
• Nettles v. Grounds (§2254) (claim challenging prison disciplinary proceedings is cognizable in habeas only if relief will “necessarily spell speedier release” from custody) (Murguia dissenting argues this language by Supreme Court was mere footnoted dicta and so doesn’t justify reversing prior precedent under Miller v. Gammie).
• U.S. v. Evans (suppression order vacated, remanded for determination of whether, consistent with Rodriguez and prior circuit precedent, each prolongation of stop was justified by independent reasonable suspicion).
• U.S. v. Pickle (civil forfeiture) (claimant’s failure to answer government’s interrogatories does not vitiate standing to contest forfeiture, or warrant striking claim as discovery sanction without an opportunity to cure).
• U.S. v. Mageno (order on panel rehearing) (FRAP 40 authorizes rehearing to recognize corrections in transcript raised for first time on petition for rehearing, and “extraordinary circumstances” here warranted exercising that authority and vacating prior opinion that had reversed conviction).
• Maldonado v. Holder (amended en banc opinion).
• U.S. v. Boykin (evidence was sufficient for methamphetamine distribution on aiding and abetting theory) (“deeply troubling” improprieties by law enforcement did not warrant reversal for sentencing manipulation, since investigation could be reasonably extended to build stronger case with more controlled purchases by more credible CI, and FBI memo that “specifically recommended drug volumes to establish charges” didn’t quite show that agents’ sole intent was to enhance sentence, at least where defendant had already participated in buys over the specified threshold amount anyway) (it was not an abuse of discretion to decline to consider actual conduct underlying criminal history on principle that doing so involves “slippery slope,” and criminal history was otherwise correctly calculated) (shotgun with defendant’s prints found at residence where he’d facilitated controlled purchases was enough to apply §2D1.1(b)(1) enhancement). More on this “tough decision” at Ninth Circuit Blog.

SCOTUS focus

• Henderson v. U.S. (district court can order felon’s lawfully owned guns from government custody to third party if satisfied that recipient will not give felon control over them; prohibition on gun possession doesn’t extend to gun transfers.).
• Lockhart v. U.S. (cert. granted on whether mandatory minimum under 18 U.S.C. §2252(b)(2) is triggered by prior state conviction relating to “aggravated sexual abuse” or “sexual abuse” without “involv[ing] a minor or ward”).
• Foster v. Humphrey (§2254) (cert. granted on whether there was Batson error, where Georgia trial judge struck all four black prospective jurors, and prosecutor asked jury to impose death to “deter other people out there in the projects”).

Short circuits

• Villanueva v. Holder (1st Cir.) (immigration) (Connecticut assault, Gen. Stat. §53a-61, encompasses reckless and negligent conduct so is not categorical crime of violence, and record here did not establish defendant’s conviction under that section qualified on modified categorical approach).
• U.S. v. Watson (2d Cir.) (district court did not clearly err in calling B.S. on officer’s professed “uncertain[ty]” about whether defendant whom he’d stopped was person he’d been looking for) (“[M]aterial difference in skin tone, facial features, and height is not something that takes a long time to process. [snip] The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime.”). (H/T)
• Free Speech Coalition v. Att’y Gen. U.S. (3d Cir.) (inspection requirement under 18 U.S.C. §2257A violates Fourth Amendment because pornography industry is not “closely regulated” for purposes of administrative search exception). (H/T)
• U.S. v. Walli, Rice, Boertje-Obed (6th Cir.) (82 year-old nun and two Army veterans who vandalized Department of Energy building that housed enriched uranium, to protest war, lacked “intent to injure, interfere with, or obstruct the national defense” required under for conviction under Sabotage Act, 18 U.S.C. §2155(a)). (H/T)
• U.S. v. Lichtenberger (6th Cir.) (Fourth Amendment private search doctrine didn’t apply to computer search, where police officer lacked “virtual certainty” necessary under Riley that files he viewed were same ones discovered in initial search). Orin Kerr argues this creates a circuit split. (H/T)
• U.S. v. Griffin (7th Cir.) ("willfulness" within 22 U.S.C. §2778 requires that defendant know he needed license to export munitions he exported, though instructional error on point here was harmless).
• Childress v. Walker (7th Cir.) (§1983) (complaint stated Eighth Amendment and due process violations for revocation prison term imposed after supervised release turned up prohibited computer disk plaintiff-releasee had inadvertently received from prison officials, who had returned it to him, sealed in envelope, along with rest of his property).
• U.S. v. Boultinghouse (7th Cir.) (24-month revocation sentence was unreasonable, where district court failed to give any reasons for it).
• U.S. v. Downs No. 14-3157 (7th Cir.) (Posner, J.) (above-guideline 10-year supervised release term imposed after revocation of probation vacated for failure to make findings that would justify term length and conditions).
• U.S. v. Jackett (10th Cir.) (unpub’d) (conviction under 21 U.S.C. §843(a)(6) is not categorical controlled substance offense within §4B1.2).
• U.S. v. Bigley (D.C. Cir.) (sentence vacated in child pornography case, where district court failed to consider nonfrivolous claim of sentencing manipulation, even though D.C. Circuit doesn’t generally require district courts do so)). (H/T)
• Doe v. U.S. (E.D.N.Y.) (near-13-year-old valid conviction resulting in probation sentence expunged to avoid collateral consequences to ability to work) (“I sentenced her to five years of probation supervision, not to a lifetime of unemployment.”). (H/T)

For the bookworms

• “Towards a Theory of Mitigation,” Carissa Byrne Hessick & Douglas A. Berman, 96 B.U. L. Rev. ___ (2016) (SSRN). (H/T)
• “SYMPOSIUM: Leading from Below,” misc., 69 U. Miami L. Rev. 355–558 (2015). (symposium page).
• Note: “Federal Sentencing Error as Loss of Chance,” Kate Huddleston, 124 Yale L.J. 2663 (2015) (SSRN). (H/T)
• “The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws,” Javier Ortiz et al., working paper (SSRN). (H/T)
• “Discrimination at the Margins: The Intersectionality of Homelessness & Other Marginalized Groups,” Kaya Lurie et al., working paper (SSRN). (H/T)
• “The Rebirth of Rehabilitation in Juvenile and Criminal Justice: New Wine in New Bottles,” Mark R. Fondacaro et al., ___ Ohio N. U. L. Rev. ___ (2015) (SSRN). (H/T)
• “A Defense of Privacy as the Central Value Protected by the Fourth Amendment’s Prohibition on Unreasonable Searches,” Christopher Slobogin, working paper (SSRN). (H/T)
• “Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System,” Vida B. Johnson, 45-2 Seton Hall L. Rev. ___ (2015) (SSRN). (H/T)
• “Involuntary Intoxication: A New Six-Step Procedure,” Thom Brooks, 79-2 J. Crim. L. 138 (2015) (SSRN). (H/T)
• “The Aggregation Principle and the Future of Fourth Amendment Jurisprudence,” Shaun B. Spencer, 41 New Eng. J. Crim. & Civ. Confinement 289 (2015) (SSRN). (H/T)
• Comment: “‘I Did Not Hurt Him... This Is a Nightmare’: The Introduction of False, But Not Fabricated, Forensic Science in Police Interrogations,” Catherine E White, ___ Wisc. L. Rev. ___ (forthcoming) (SSRN). (H/T)
• “Sentencing and the Salience of Pain and Hope,” Benjamin L. Berger, ___ Sup. Ct. L. Rev. ___ (forthcoming) (SSRN). (H/T)
• “Sense and ‘Sensitivity’: Epistemic and Instrumental Approaches to Statistical Evidence,” David Enoch & Talia Fisher, 67-557 Stan. L. Rev. ___ (2015) (SSRN). (H/T)
• “Unconstitutional Criminalization,” Hadar Dancig-Rosenberg & Ariel L. Bendor, ___ New Crim. L. Rev. ___ (forthcoming) (SSRN). (H/T)
• “Constructing Crimmigration: Latino Subordination in a ‘Post-Racial’ World,” Yolanda Vázquez, 76-3 Ohio St. L.J. ___ (2015) (SSRN). (H/T)
• “Benefits of Error: A Dynamic Defense of the Blackstone Principle in Criminal Law,” Joel S. Johnson, 102 Va. L. Rev. ___ (2016) (SSRN). (H/T)
• “Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure,” Dhammika Dharmapala et al., working paper (SSRN). (H/T)
• “The Framework Model and Constitutional Interpretation,” Jack M. Balkin, from Philosophical Foundations of Constitutional Law, David Dyzenhaus & Malcom Thorburn, eds., Oxford U. Press (2016) (SSRN). (H/T)
• “Always Already Suspect: Revising Vulnerability Theory,” Frank Rudy Cooper, 93 N.C. L. Rev. 1339 (2015) (SSRN). (H/T)
• “Moral Quality in Adjudication: On Judicial Virtues and Civic Friendship,” Iris Van Domselaar, 1 Netherlands J. Legal Phil. 24 (2015) (SSRN). (H/T)
• “Pragmatism Rules,” Elizabeth G. Porter, ___ Cornell L. Rev. ___ (forthcoming) (SSRN). (H/T)
• “The Consequences of Error in Criminal Justice,” Daniel Epps, 128 Harv. L. Rev. 1065 (2015) (pdf).

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Suggestions or corrections? Email Michael Drake.