Seattle Criminal Defense

Profitable Collectives do Not Violate the Law, California Medical Marijuana Author Says

2012-02-14T22:55:00.000-08:00

U.S. Attorneys shutting down medical marijuana collectives in California more often that not use the talking point of "profitability" as if it was a four letter word.

However according to the author of the state's medical marijuana law, former state Senator John Vasconcellos, a profitable collective doesn't mean it's breaking the law. In fact, according to the law he authored, there's no requirement that the dispensary be non-profit, reports the L.A. Weekly .

In a letter to clarify the issue, he wrote:

Nothing in that section prohibits profit. Nothing in that section explicitly authorizes profit, either. But I must point out that nobody is required to obtain an "authorization" from the Legislature to make a profit in California.

... the language does not in any respect purport to prohibit profit ~ if that had been the intent, the language would have so stated clearly. It obviously does no such thing.

Washington Punts Legalized Marijuana Question to Voters

2012-02-14T01:19:00.000-08:00

The Washington legislature refused to act on a voter-backed initiative to legalize the recreational use of marijuana in the state, leaving the decision up to the voters in November.

If passed, the law would be the first in the nation to OK the recreational use of the drug. Similar voter initiatives in other states, such as California and Oregon, are taking place but none have been able to secure the number of signatures to bring the issue to the ballot.

Support for relaxing the use of marijuana comes from unlikely corners, including former law enforcement officials. The Seattle Times reports Charles Mandigo, the former head of Seattle's FBI field office, testified, "It is the money, not the drugs, that drive these criminal organizations and street gangs. Take away the money and you take away the criminal element."

If passed, the law would allow Washington residents 21 and over the right to purchase dried marijuana, marijuana in edibles and marijuana-infused drinks. The state would impose a 25 percent tax on processors, growers and stores.

After a Long String of Legal Persecution, Guy Casey Calls it Quits for Dispensaries

2012-02-09T12:23:00.000-08:00

The Seattle Weekly profiles a medical marijuana dispensary co-owner walking away from his business because of constant harassment by law enforcement.

The woes of Guy Casey, former co-owner of Tacoma's North End Club 420, began with a raid by WestNet, a federally funded anti-drug task force.

WestNet's tactics have been criticized as heavy handed — in Casey's case, the cops handcuffed his 14 year old son and confiscated the cash from his 9 year old daughter's Mickey Mouse purse, then seized 10 pounds of marijuana for his dispensary.Distribution charges were ultimately dropped, but the pot was not returned to the dispensary.

North End Club 420 was later raided by federal agents.Ultimately, Casey said, "I don't need any felonies."However, Casey plans on opening a collective garden, a legal co-op that allows 10 members to grow their marijuana together.

Medical Marijuana Owners Gaze into a Pro-Pot Future

2012-02-07T01:56:00.000-08:00

Medical marijuana dispensary owners opined about life after legalization in a recent article in the West Seattle Herald .

Despite the move toward wholesale legalization with Initiative 502, John Davis, owner of the Northwest Patient Resource Center, speculated that marijuana shops and medical marijuana dispensaries will remain separate businesses because medical use and recreational use are not compatible.

The owner of Herban Legends, Chris Cody, also hoped the two businesses would be regulated separately, because he feels patients should not have to pay the proposed 25 percent tax that will be levied on non-medical pot.

There's also confusion as to how marijuana would work as a Schedule 2 drug (which the DEA deems as having medical applications) instead of a Schedule 1 (which the DEA feels has no medicinal value). Both agree distributing through pharmacies will be the sticky point, with Davis pointing out that existing pharmacies do not have knowledge of different strains and that dispensaries may have to become licensed pharmacies. Cody added that there is no infrastructure in place for national pharmacy chains to properly dispense medical pot.

Marijuana Proponents Bet on Changing Demographics for Legalization

2012-02-03T00:22:00.000-08:00

The Chicago Tribune examines the efforts behind Washington's movement to legalize marijuana (as well as Colorado's) and the chance it has to become law.

An October Gallup Poll places the number of Americans who support legalization at 50 percent, a record high, and among adults 18 to 29 support rises to 62 percent. Those speaking for legalization include Seattle's City Attorney, Peter Holmes.

Holmes said, "Right now in Seattle, we're feeling that it's a bit unfair that we are being tolerant of medical marijuana users, when other localities are not, because we tend to become suppliers for the whole state rather than our own citizens."

If Washington legalizes pot, sales would be restricted to those aged 21 or older. Stores that sell the drug would be controlled by the state's Liquor Control Board and laws regarding intoxicated driving would include provisions for maximum blood levels of THC.

The following criminal cases of note were decided this week:

2011-10-18T15:02:00.000-07:00

Washington State Law

Washington State Supreme Court

State v. Perez-Valdez: The Court affirmed Mr. Perez-Valdez’s conviction for one count of second degree rape of a child and one count of third degree rape of a child, finding proper two evidentiary decisions made by the trial court. The Court determined that the defense called witnesses who testified to Mr. Perez-Valdez's reputation for good moral character and, though the State failed to object at the time, it later argued that a general reputation for good character is not pertinent under ER 404(a)(1) to a specific element of the charged crime, rape of a child. The Court thus found proper the trial court’s action in preventing the defense from presenting argument about evidence that, upon later objection, the court deemed to be inadmissible. The Court also found proper the trial court’s denial of Mr. Perez-Valdez’s motions for a mistrial based on a statement made by a state witness relating to the credibility of the victims. http://www.courts.wa.gov/opinions/pdf/840032.opn.pdf

In a dissent, Justice Wiggins argued that the evidence sought to be entered by the defense, testimony about an arson committed by the accusers in this case, was sought to be used as evidence of motive to fabricate allegations against Mr. Perez-Valdez. The dissent argued that Mr. Perez-Valdez was erroneously prohibited from introducing admissible evidence to challenge the alleged victims' credibility. The dissent argued that the evidence was relevant to show that the alleged victims had a motive to lie, and the defense should have been allowed to present this evidence due to the presumption of innocence and requirement of proof beyond a reasonable doubt. The dissent posited that this evidence was particularly necessary when the conviction rested upon uncorroborated testimony of two teenagers, as in this case. http://www.courts.wa.gov/opinions/pdf/840032.no1.pdf

State v. Franklin: The Court found that the 2009 legislation requiring sentencing courts to reduce the term of community custody when the total terms of confinement and community custody exceed the statutory maximum do apply retroactively to cases such as Mr. Franklin’s. However, the Court also concluded that the legislature in writing the law charged the Department of Corrections, not the sentencing court, with adjusting the length of community custody for those serving terms of confinement or community custody by modifying the end date for community custody. Thus, the Court concluded that Mr. Franklin was not entitled to resentencing by the trial court and affirmed the Court of Appeals. http://www.courts.wa.gov/opinions/pdf/845450.opn.pdf

Division Two Court of Appeals

State v. Ramirez-Estevez: In this partially published opinion, the Court affirmed Mr. Ramirez-Estevez’s conviction on five counts of first degree child rape. The Court agreed that the trial court erred by admitting as an excited utterance the hearsay testimonies of a school counselor and of the victim’s aunt that the victim told them that Mr. Ramirez-Estevez raped her was error. The court reasoned that though recalling the rapes was highly stressful and upsetting for the victim, and that the victim's understandably excited emotions appeared to have been the result of reliving and relating these past traumatic events to these apparently trusted adults, however the Court observed that the recollection happened nearly two years after the rapes occurred and, because of this prolonged delay, the victim’s statements did not constitute the type of excited utterance made under the stress of the event that are admissible under ER 803(a)(2). However, the Court found the error harmless and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/40226-2.11.doc.pdf

Federal Law

Ninth Circuit Court of Appeals

James v. Schriro: The Court granted Mr. James’ writ of habeas corpus with respect to his death sentence. The Court found that Mr. James was denied effective assistance of counsel in the penalty phase, concluding that counsel’s complete failure to investigate and present mitigating evidence of Mr. James’s troubled childhood, his mental illness, and his history of chronic drug abuse constituted deficient performance. We further conclude that this failure prejudiced Mr. James because it prevented the sentencing judge from learning that Mr. James had “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” However, the Court affirmed the trial court’s denial of relief with respect to Mr. James’ claimed Brady claim wherein he argued that the state failed to disclose an oral plea agreement with a co-defendant under which the co-defendant agreed to testify against Mr. James. The Court also denied relief with respect to Mr. James’ claims that the state failed to correct false testimony of his co-defendant that denied the existence of this agreement. The Court instructed the district court to grant the state a reasonable amount of time in which to resentence Mr. James and, if the state chooses not to resentence, ordered that Mr. James’ sentence to automatically be converted to life in prison in accordance with Arizona law. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/12/08-99016.pdf

United States v. McEnry: The Court vacated Mr. McEnry’s sentence on his guilty plea to serving as an airman without an airman’s certificate. The Court reasoned that the trial court selected the incorrect guideline under which to sentence Mr. McEnry, and that the trial court further relied upon uncharged relevant conduct in selecting the applicably guideline. Thus, the Court found, the trial court had incorrectly calculated Mr. McEnry’s Guidelines range. The Court remanded for resentencing under the correct guideline range. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10433.pdf

United States v. Reyes: The Court affirmed Mr. Reyes’ conviction in a second criminal trial for (1) securities fraud and making false filings with the Securities and Exchange Commission (SEC) (2) falsifying corporate books and records; and (3) making false statements to auditors. The Court was unpersuaded by Mr. Reyes’ arguments that his conviction should be vacated due to prosecutorial misconduct, insufficient evidence, and various evidentiary and instructional errors at trial. The Court found that Mr. Reyes did not establish prosecutorial misconduct through the government’s use of evidence showing that Mr. Reyes personally profited from the backdating of stock options while he served as CEO of Brocade, as the evidence that was not false, and the Government did not impermissibly ask the jury to draw false inferences from the evidence presented at trial. The Court further found that evidence of the profits made from the scheme was not irrelevant and did not unfairly prejudice the jury. The Court found that the government introduced the evidence to permit the jury to draw a reasonable inference that Mr. Reyes knew what he was doing and how the scheme operated to his benefit. Further, the Court found no misconduct in the government’s questioning of two witnesses to elicit testimony regarding the company’s options-pricing process and governance and compensation practices. The Court found that the testimony was not false or that the government sought to draw improper inferences based on its admission. The Court also concluded that the trial court did not abuse its discretion in admitting Prior Case Evidence to show that Mr. Reyes understood that he was engaged in illegal conduct and that the statements were relevant because they were inconsistent with Mr. Reyes’s position at his second trial and to his guilty state of mind. The Court likewise found no plain error in the introduction of evidence that Mr. Reyes, in his role as CEO, signed the financial statements and representation letters which formed the basis of the Government’s charges that Mr. Reyes falsified Company books and records, and lied to Company auditors. The Court found no error in the rejection of proposed jury instructions as well, including an instruction that a corporate officer is not criminally responsible for the acts of subordinates. The Court found that the district court had discretion to refuse to give a separate instruction regarding the defense’s theory where “other instructions, in their entirety, adequately cover that defense theory.” Finally, the court found that there was sufficient evidence to support the conviction, and that the prosecution did not improperly suggest to the jury that it could find materiality based on proxy-voting decisions, and disagreed that the district court erred because it did not give an instruction that would prevent the jury from being mislead. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10323.pdf

United States v. Urena: The court upheld Mr. Urena’s conviction for assault with a dangerous weapon and possession of contraband in prison. The Court held that the district court did not abuse its discretion by refusing to instruct the jury on his theory that he acted in self-defense, finding that Mr. Urena did not use commiserate force when he stabbed a man in retaliation for calling him a “bitch” in prison, and that even if the other man was armed, it was clear that Mr. Urena was the attacker and could not avail himself of the self-defense instruction. The Court also held that the district court did not violate his Confrontation Clause rights by refusing to allow him to cross examine the treating physician about the cause of the victim’s injuries, holding that the district court’s limitations on cross-examination did not limit relevant testimony, prejudice Mr. Urena, or deny the jury sufficient information to appraise the biases and motivations of the witness. The Court concluded that Mr. Urena was able to cross-examine the doctor regarding the issues on which he testified, and did not have a right to examine him regarding additional issues. Next, the Court held that the district court did not err in refusing to let him designate the treating physician as his expert witness on causation during the trial, finding that Mr. Urena could have hired his own expert or designated an expert prior to trial, but did not do so. Finally, the court found that the sentence was not unreasonable, as the district court sentenced him under the guidelines that were in effect at the time that he was sentenced. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/09-50285.pdf

United States v. Carper: The Court affirmed Mr. Carper’s sentence of three years’ imprisonment for unlawfully exporting PVS-14 Gen 3 night-vision devices (“PVS-14 devices”). The Court ruled that the district court correctly interpreted the Guidelines in calculating Mr. Carper’s three year sentence. The Court reasoned that the district court followed the sentencing guidelines, and did not abuse its discretion in declining to make a downward variance to the guidelines. The court noted that the district court explained that it had considered all of the factors in the guidelines and did grant a downward departure to Mr. Carper’s sentence. The Court deferred to the district court decision. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/14/10-10517.pdf

Case Law Update, Week Ending 9-23-11

2011-09-26T21:48:00.000-07:00

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

Personal Restraint of Talley: The Court held that former RCW 9.92.151 (2004) requires a county jail to provide opportunities for an inmate who is yet to be sentenced to earn credit toward early release, also known as "good-time" credit. As the Skamania County Jail and the Department of Corrections did not provide such opportunities to Mr. Talley prior to his criminal conviction, the Court held that the entities were in violation of former RCW 9.92.151, and that Mr. Talley was entitled to good-time credit at the statutory maximum rate of 15 percent. Mr. Talley also argued that the policy violated the equal protection clause of the United States Constitution; however, the Court did not reach that argument. http://www.courts.wa.gov/opinions/pdf/832846.opn.pdf

Personal Restraint of Rhome: The Court held that the state and federal constitutions do not require independent findings of fact that a defendant is competent to waive counsel and represent himself at trial. The Court rejected Mr. Rhome’s arguments that the sixth and fourteenth amendments to the federal constitution and the due process clause in the state constitution authorized a separate inquiry into his mental competency, and failure to do so constituted a violation of his rights under those amendments. The Court reasoned that relevant case law imposed no such standards, but merely did not find fault with courts that undertook such an inquiry, and that mental health status is but one factor that may be considered in determining the validity of a waiver. The Court further found that the trial court’s colloquy in this matter, during which the trial court advised Mr. Rhome of the risks of representing himself and ensured he understood the significance of the undertaking were sufficient to secure a valid waiver of counsel, notwithstanding that the court did not address Mr. Rhome’s known mental health issues during the colloquy. http://www.courts.wa.gov/opinions/pdf/837881.opn.pdf

State v. Caldwell: Mr. Caldwell and co-defendant John Gordon were each charged with second degree murder with two aggravating factors, deliberate cruelty and particular vulnerability of the victim. The jury was instructed to determine whether the aggravators were present, but the instructions did not define "deliberate cruelty" or "particular vulnerability." The defendants did not object to the instructions on that basis, and were found guilty of the crime and the aggravators applied. On appeal, the court found that the failure to provide detailed instructions defining the meaning of "deliberate cruelty" or "particular vulnerability" was not a manifest error of constitutional magnitude that may be addressed for the first time on appeal. The Court reversed the Court of Appeals’ alternate ruling, finding that the lower court mistakenly relied upon Apprendi and Ring to hold that the error could be characterized as failing to properly instruct on an element of the aggravated crime. The court reasoned that Apprendi and Ring do not dictate the level of detail required in an instruction setting forth aggravating factors, the statue at issue in this case does not define or elaborate on the meaning of “deliberate cruelty" or "particular vulnerability," and the jury instructions follow the statute. The omission of additional terms is not an error of constitutional magnitude. http://www.courts.wa.gov/opinions/pdf/842400.opn.pdf

Division One Court of Appeals

State v. Strizheus: The court affirmed the trial court’s exclusion of other suspect evidence that Mr. Strizheus claimed established that his son Vladimir committed the crime of attempting to murder Mr. Strizheus’ wife, and Vladimir’s mother, Valentina. The Court found that Mr. Strizheus did not meet his burden of showing facts or circumstances clearly pointing to Vladimir as the person who committed the crime. The Court reasoned that there was no evidence establishing a nexus between Vladimir and the crime, no physical evidence connecting Vladimir to the crime, no eyewitness testimony placing Vladimir at the scene, and no identification of Vladimir by Valentina as her attacker. In fact, the only evidence Mr. Strizheus relied upon was a statement made by his son when his son was admittedly intoxicated, and which his son later recanted. http://www.courts.wa.gov/opinions/pdf/64077-1.pub.doc.pdf

State v. Peters: The Court reversed and remanded for a new trial charges against Mr. Peters, who had been accused of felony murder in the second degree based on the predicate offense of assault and manslaughter in the first degree with a firearm, as a result of the shooting death of his six year old daughter. The jury had also been instructed on the lesser-included offense of manslaughter in the second degree The jury found Mr. Peters not guilty of felony murder but guilty of manslaughter in the first degree. However, the trial court erroneously instructed the jury that in order to convict Mr. Peters of manslaughter in the first degree, the State need only prove that he knew of and disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial risk that death may occur." The Court found that the jury instruction was not harmless beyond a reasonable doubt, and the uncontroverted evidence did not establish that Mr. Peters knew of and disregarded a substantial risk that death may occur. http://www.courts.wa.gov/opinions/pdf/64568-4.pub..doc.pdf

State v. Read: The Court found that there was sufficient evidence to uphold Mr. Read’s conviction for malicious harassment when Mr. Read was found to have used “virulent racial epithets” coupled with aggressive and intimidating conduct when confronting an Ethiopian parking lot attendant regarding a ticket he had been issued for parking over two spaces in a restaurant parking lot. After calling the victim a nigger, blaming her for the issuance of the ticket, making advances toward her on foot and then in his vehicle, the victim hid, terrified in the bushes and called 911 for police assistance. The Court found that this record established that Mr. Read intentionally and maliciously harassed the victim because her race, ethnicity, or national origin. http://www.courts.wa.gov/opinions/pdf/65064-5.pub..doc.pdf

Division Two Court of Appeals

State v. Corona: The Court reversed and remanded Mr. Corona’s case for a new sentencing hearing, as the court had imposed a $3,000.00 drug clean-up fine after convicting Mr. Corona of delivery involving less than two kilograms of methamphetamines. The Court found, in agreement with the State’s concession on the matter, that the trial court abused its discretion when it imposed the fine, as it erroneously believed that the fine was mandatory. However, under RCW 69.50.401, such fine is discretionary in offenses such as the one of which Mr. Corona was convicted. http://www.courts.wa.gov/opinions/pdf/41436-8.11.doc.pdf

Division Three Court of Appeals

State v. Guerrero: In this partially published opinion, Mr. Guerrero appealed the denial of sentencing under the drug offender sentencing alternative (DOSA). The Court found no error in the trial court’s refusal to impose the DOSA sentence. The Court further found that no chemical dependency screening was required, contrary to Mr. Guerrero’s argument, under the DOSA statutes, and the trial court did not commit error in failing to order such a screening. http://www.courts.wa.gov/opinions/pdf/289711.opn.doc.pdf

State v. Santos: The Court reversed Mr. Santos’ felony DUI conviction and remanded for entry of a conviction and sentence for gross misdemeanor DUI. The Court found that the State did not prove that Mr. Santos and the person named in documents purporting to show four prior DUI convictions were one and the same. The Court reasoned that the fact of the prior offenses is an essential element of felony DUI that the State must prove beyond a reasonable doubt, as this is the distinguishing factor between felony and misdemeanor DUI. Though the State introduced into evidence certified copies of four DUI judgments to show that Mr. Santos had prior offenses within ten years, generally accepted as the best evidence of a prior conviction, the Court found, based on prior precedent in bail jumping cases that those certified copies must also show beyond a reasonable doubt that “the person named therein is the same person on trial.” The showing, the Court found, cannot be based on the certified copy of the judgment, but must be based on independent evidence that "the person named therein is the defendant in the preset action," such as booking photographs or fingerprints, eyewitness identification, or distinctive personal information.In the present case, the Court determined that no evidence linked Mr. Santos to the prior DUI judgments: none of the information could be compared to Mr. Santos by simple observation and none could be compared to any other independent evidence that could be linked to Mr. Santos. The Court observed that the State had produced no evidence of Mr. Santos’ address, birth date, or other criminal history. No photographs of the person named in the judgments were produced to compare to Mr. Santos at the trial. The Court held this evidence was insufficient to establish the felony element of felony DUI. http://www.courts.wa.gov/opinions/pdf/289834.opn.doc.pdf

State v. Chacon Arreola: The Court reversed Mr. Chacon Arreola’s DUI, finding that the stop for a modified muffler was pretextual in violation of the Washington Constitution. A patrol officer had followed Mr. Chacon Arreola’s vehicle for over half a mile because it fit the description of a car reportedly driven by a suspected drunk driver. No details regarding the informant or the information provided are included in the record. Though the officer observed no signs of impaired driving, he claimed that the car was equipped with a modified muffler in violation of state vehicle equipment requirements. The officer pulled the vehicle over based on the muffler violation with the primary motive of investigating Mr. Chacon Arreola for a possible DUI. Though the officer testified at a motion hearing that the muffler may have caused him to stop and cite Mr. Chacon Arreola even absent suspicion of drunk driving, the criminal investigation was the primary motive for the stop. The officer further testified that he did not always stop and cite a driver upon noticing a noncompliant muffler. The Court found that the trial court’s finding that the officer was following Mr. Chacon Arreola to investigate a possible DUI and stopped him principally for that reason compel the conclusion that the stop was pretextual in violation of the Washington Constitution. The court observed that the infraction would have constituted sufficient justification for stopping Mr. Chacon Arreola under the Fourth Amendment to the United States Constitution, as the United States Supreme Court has held that an officer wishing to investigate a crime may stop a driver for any traffic infraction observed. However, the Washington Supreme Court, in Ladson, had expressed concern that due to the extensiveness of traffic regulation, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter." The Court ruled that the reasoning of Ladson compels the result that “a traffic stop is without authority of law where it cannot be constitutionally justified for its primary reason (speculative criminal investigation) but only for some other reason (enforcing the traffic code) which is at once lawfully sufficient but only a secondary reason. The Court found that the traffic stop that yielded the evidence on which Mr. Chacon Arreola was charged in this case was without authority of law because the reason for the stop – to investigate for drunk driving – was not exempt from the warrant requirement. http://www.courts.wa.gov/opinions/pdf/291642.opn.doc.pdf

In a dissent, Judge Brown argued that the Court should defer to the fact-finding discretion of the trial judge, who determined from disputed facts "an actual reason for the stop" was the muffler violation. The dissent argued that a stop can serve multiple, legal, complimentary purposes so long as an actual stop reason passes legal muster, and that officers should not be expected to be “blind to other potential concurring violations detected when investigating an actual stop reason.” http://www.courts.wa.gov/opinions/pdf/291642.dis.docx.pdf

Federal Law

Ninth Circuit Court of Appeals

United States v. Ibarra-Pino: The Court upheld Mr. Ibarra-Pino’s conviction for importation and possession of marijuana. The Court found that the district court did not err in disallowing a duress instruction. Contrary to Mr. Ibarra-Pino’s claims, the Court found that the district court did allow Mr. Ibarra-Pino to present evidence of a duress defense at trial, but agreed that Mr. Ibarra-Pino did not establish the elements of a duress defense. Specifically, the Court found that Mr. Ibarra-Pino had an opportunity to escape the threatened harm when confronted at the border by law enforcement, and before the search of his vehicle uncovered the drugs. Thus, the Court found, there was no error in the district court’s refusal to allow a duress defense or a jury instruction on duress.

In a concurrence, Judge Kozinski agreed that the district court did not preclude a duress defense prior to trial, but did allow Mr. Ibarra-Pino to present evidence of duress during the trial. The concurrence argued that there was no occasion in this matter to discuss whether the district court could properly have precluded a duress defense and tersely concluded that this is a difficult issue “that we should leave to a case where it matters.” http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-50341.pdf

United States v. Baker: Mr. Baker appealed his conviction for misdemeanor possession of methamphetamines, arguing that due to flagrant governmental misconduct the case should have been dismissed. The Court affirmed the conviction despite evidence that officers manufactured claims that Mr. Baker threw bags of methamphetamines out of his car during a high speed chase, leading prosecutors to charge him with a felony rather than a misdemeanor based upon the amount of methamphetamines found in his car. Mr. Baker then appealed conditions of probation, including one requiring him to submit to suspicionless searches and one requiring him to submit to DNA collection. The Court affirmed the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, reversed with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.

In a concurrence, Judge Graber agreed completely with the panel’s decision, however, wrote separately to highlight the Court’s continued reliance on the proposition that there is no difference between parolees and probationers in the context of suspicionless searches. The concurrence argued that this position directly contravenes Supreme Court precedent and forecloses the Ninth Circuit’s ability to resolve the question on the merits. The concurrence urged the court to convene en banc to correct this issue. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/10-10223.pdf

United States v. Dugan: The court found constitutional 18 U.S.C. § 922(g)(3), which makes it illegal for “any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Mr. Dugan, a convicted marijuana dealer who also had a business dealing in firearms, argued that the statute ran afoul of the Second Amendment because it deprives him of his constitutional right “to possess and carry weapons in case of confrontation.” The Court noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Supreme Court instructed that the Second Amendment right “is not unlimited.”
Specifically, the Court ruled that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…or laws imposing conditions and qualifications on the commercial sale of arms.” The Court ruled that the same dangers existed in allowing drug users to possess guns as with the mentally ill, and upheld the prohibition. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/20/08-10579.pdf

United States v. Rivera: The Court upheld Mr. Rivera’s sentence of 37 months for unlawfully attempting to re-enter the United States after having previously been removed. The Court found reasonable the district court’s increase in the offense level by eight levels because Mr. Rivera “previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.” The Court found that the district court properly determined that any one of Mr. Rivera’s three prior felony petty theft convictions would be sufficient to trigger the eight-level increase, because he had been sentenced to concurrent 16-month terms of imprisonment in state prison for his first and second offense and two years in state prison for his third offense. The Court rejected Mr. Rivera’s arguments that the crimes could not be considered aggravated felonies due to the sentencing structure of the crimes and the crime covered by the California Penal Code, finding that the documents submitted in this case establish that at least one of the convictions was based on a guilty plea to conduct that constitutes a generic theft offense, for which the term of imprisonment was at least a year, at that only one prior aggravated felony was necessary for the increase in sentencing levels. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/10-50313.pdf

United States v. Fitch: The Court upheld the exceptional sentence imposed on Mr. Fitch’s convictions for nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The Court found that the district court properly increased the sentencing after finding by clear and convincing evidence that Mr. Fitch had murdered his wife and that her death was the means he used to commit his crimes, despite the fact that Mr. Fitch was not charged with his wife’s murder and there was in fact no evidence she was deceased, only that she had disappeared. The Court held that a judge has broad powers to increase a sentence based even on uncharged conduct because a sentence may be based not just on the crimes for which the defendant was convicted but the manner in which the defendant committed the crimes. Here, the district court apparently believed that Mr. Fitch completed the crimes for which he was convicted by first killing his wife, and sentenced him accordingly. The Court found that the district court had authority to sentence Mr. Fitch as it did, and further that the sentence was a reasonable upward departure from the guidelines.

In a dissent, Judge Goodwin argued that, while the evidence of aggravated criminal exploitation of the victim in this case would support an upward departure from the sentencing guidelines, the dissent could not agree there was clear and convincing evidence from which the district court could conclude that Mr. Fitch committed premeditated murder in connection with the fraud charged. The dissent pointed out there was no evidence that Mr. Fitch’s wife was dead, much less evidence of how she died or the degree of Mr. Fitch’s involvement in her disappearance. The dissent further observed that the death of Mr. Fitch’s wife was not a necessary predicate to the fraud committed, and that the district court could not have evaluated the dangerousness of Mr. Fitch’s conduct or the extent to which his wife’s presumed death was intended or knowingly risked because the record is silent on these factors. The only facts in the record are that Mr. Fitch’s wife disappeared and Mr. Fitch immediately exploited her disappearance for his own
benefit. http://www.ca9.uscourts.gov/datastore/opinions/2011/09/23/07-10607.pdf

Obama says he’s not willing to end the drug war | Raw Replay

2011-07-25T13:08:00.000-07:00

Obama says he’s not willing to end the drug war | Raw Replay

Criminal Case Law Update, Week Ending 7-8-11

2011-07-17T16:21:00.000-07:00

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

State v. Eserjose: The Court affirmed Mr. Eserjose’s conviction for second degree burglary, holding that even though officers exceeded the scope of the invitation to enter the home and arrested Mr. Eserjose in a private area, thus rendering the arrest illegal, Mr. Eserjose’s confession was nevertheless properly admitted. The Court found that the confession was sufficiently attenuated from the arrest so as to not be fruit of the poisonous tree, because the confession was not attributable to the illegal arrest. http://www.courts.wa.gov/opinions/pdf/824916.opn.pdf

In a concurrence, Justice Madsen agreed that the Court reached the correct result in admitting Mr. Eserjose’s confession because deputies did not obtain the confession by exploiting any unlawful act. However, the justice wrote separately to argue that the lead opinion applies an attenuation analysis where none is required. http://www.courts.wa.gov/opinions/pdf/824916.co1.pdf

In a dissent, Justice Charles Johnson argued that the lead opinion’s allowance of an attenuation exception to the exclusionary rule “effectively removes the incentive for police officers to secure a warrant before invading a citizen's home and offers no remedy for the constitutional violation.” The dissent further argued that the attenuation exception was at odds with the protections given by article I, section 7 of the Washington State Constitution. The dissent pointed out that, “[j]ust like the inevitable discovery exception rejected in Winterstein and the good faith exception rejected in Afana, this attenuation exception allows illegally obtained evidence to be admitted.” Instead, the dissent argued, any evidence obtained in violation of a person’s constitutional rights lacks authority of law and must be suppressed. http://www.courts.wa.gov/opinions/pdf/824916.no1.pdf

State v. Jones: The Court affirmed the trial court’s denial of credit towards Mr. Jones’ sentence of community custody for time he spent incarcerated in excess of his amended sentence of incarceration. In so holding, the Court overruled Division Three’s 2008 holding in In Re Knippling, under which that court found that community custody begins at completion of the sentence of confinement and the offender is therefore entitled to credit toward a sentence of community custody for time spent incarcerated in excess of the sentence of incarceration. The Court reasoned that Division Three’s holding ignores the plain language of the sentencing reform act, which specifies that any period of community custody shall toll during any period of time the offender is in confinement "for any reason." The Court found that requiring community custody to begin upon release from confinement is consistent with the statutory definition of "community custody" requiring it to be served in the community. http://www.courts.wa.gov/opinions/pdf/834512.opn.pdf

In a dissent, Justice Stephens argued that the statute clearly stated that Mr. Jones term of community custody was set to begin upon the tem of incarceration, and that the additional 30 days that Mr. Jones was wrongfully confined beyond the term of his sentence should have been credited toward his term of community custody. The dissent further pointed out that there were provisions in the sentencing reform act allowing for such wrongful detention to be applied to community custody, but none that required tolling of the term of community custody during incarceration. http://www.courts.wa.gov/opinions/pdf/834512.no1.pdf

State v. Donaghe: The Court affirmed the denial of Mr. Donaghe’s motion for a certificate of discharge to restore his voting rights. The Court found that the trial court had the authority to deny his motion, that the community placement portion of his sentence was properly tolled during his pre-commitment confinement and civil confinement as a sexually violent predator at the Special Commitment Center, and Mr. Donaghe was therefore not unconstitutionally disenfranchised. http://www.courts.wa.gov/opinions/pdf/837384.opn.pdf

In a dissent, Justice Stephens argued that Mr. Donaghe’s detention under a civil commitment scheme should not have triggered the tolling provisions under the SRA. The dissent argued that the tolling statute and the definition of confinement that triggers such tolling are contained in the SRA and apply to provisions therein, not to an unrelated civil commitment scheme. The dissent noted that by extending the tolling provisions to SVP commitment the majority threatened to go down a slippery slope that could include mental health detention or voluntary inpatient treatment at a State-contracted center. The dissent concluded that Mr. Donaghe had served out his term of community placement at the conclusion of his sentence, and should have been granted a certificate of discharge. http://www.courts.wa.gov/opinions/pdf/837384.no1.pdf

Division Two Court of Appeals

State v. Wilson: The court declined to allow Ms. Wilson to withdraw her guilty plea, finding that the trial court did not abuse its discretion in initially denying her motion to withdraw the plea. Though Ms. Wilson’s case was not yet final when the United States Supreme Court issued its ruling in Gant, the Court held that Ms. Wilson’s guilty plea foreclosed subsequent challenges to alleged constitutional violations. The Court held that a “'guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government's legal power to prosecute regardless of factual guilt.'" Citing State v. Amos, 147 Wn. App. 217, 225-26, 195 P.3d 564 (2008). Finally, the Court noted that the United States Supreme Court has also rejected the proposition that a change in law invalidates a guilty plea. The Court found that Ms. Wilson did not challenge her plea on permissible collateral grounds and had waived a Gant challenge. http://www.courts.wa.gov/opinions/pdf/39789-7-11.doc.pdf

State v. Mosteller: In this partially published opinion, the court held that because Mr. Mosteller failed to object to the administration of antipsychotic medications during trial, he waived his right to challenge the trial court’s order on appeal and, further, due to Mr. Mosteller’s failure to object, there was no evidence he was actually forcibly medicated during the trial. Further, the Court found that the trial court’s administration of the medications without first considering all of the Sell factors did not prevent Mr. Mosteller from receiving a fair trial. http://www.courts.wa.gov/opinions/pdf/39954-7.11.doc.pdf

Division Three Court of Appeals

State v. Chavez: The Court found ineffective assistance of counsel in the entry of Mr. Chavez’ guilty plea, and reversed the trial court’s denial of Mr. Chavez’ motion to withdraw the plea. The Court found that the filing of an “Anders brief” by substitute counsel after Mr. Chavez’ original counsel was allowed to withdraw based on a potential conflict of interest that did not develop any potential claim of conflict following the withdrawal of the original lawyer and suggested that counsel believed his client’s claim was frivolous constituted ineffective assistance. The Court observed that an Anders brief is allowed on appeal but there is no precedent or other authority for the use of such a brief in a trial court. http://www.courts.wa.gov/opinions/pdf/289281.opn.doc.pdf

In a dissent, Judge Korsmo argued that Mr. Chavez presented his argument for withdrawing his guilty plea to the trial court, and the trial court correctly determined that no manifest necessity existed for withdrawing the guilty plea. Therefore, the dissent argued that the judgment should have been affirmed. http://www.courts.wa.gov/opinions/pdf/289281.dis.doc.pdf

State v. Contreras: The court upheld Mr. Contreras’ conviction for possession of a stolen car and the suspension of his driver’s license because the crime involved the use of that car. The Court concluded that the statute of limitations had not run on the offense, despite the fact that Mr. Contreras took possession of the car in 2004, because he continued to possess and use the car up to the date he was charged with the crime. Further, the Court found that the car was used for purposes of a statute that required suspension of a driver’s license when a vehicle is used in the commission of a crime when Mr. Contreras drove the vehicle to a licensing station to attempt to relicense the vehicle using false VIN tags from his old car. http://www.courts.wa.gov/opinions/pdf/284417.opn.doc.pdf

Federal Law

United States Supreme Court

United States v. Juvenile Male: In a per Curiam opinion, the Court dismissed as moot an appeal from a Court of Appeals holding that the requirements of SORNA violate the Ex Post Facto Clause of the Constitution when applied to juveniles adjudicated as delinquent before SORNA’s enactment. The Court concluded that the Court of Appeals had no authority to enter such a judgment because it had no live controversy before it, as the defendant at issue had turned 21 and his registration requirement under SORNA had ceased prior to the hearing of the appeal. The court reasoned that there was no continuing injury or collateral consequence to allow the defendant to continue an appeal beyond the expiration of his sentence. Justices Ginsburg, Breyer, and Sotomayor argued for remand to the Ninth Circuit for determination of whether the case was moot in the first instance. Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/09-940.pdf

Garcia v. Texas: In a per Curiam opinion, the Court declined to give Mr. Garcia a stay of execution imposed upon his conviction for rape and murder of a 16-year-old girl. The Court disagreed with Mr. Garcia’s argument that his conviction was obtained in violation of the Vienna Convention on Consular Relations (Vienna Convention). The Court found that Mr. Garcia’s argument is foreclosed by Medellín v. Texas, in which the Supreme Court held that the Avena decision by the International Court of Justice finding that a court had violated the Vienna Convention by failing to advise a defendant of his right to consular assistance was not directly enforceable law, and found similarly with regard to the President’s Memorandum purporting to implement that decision. The Court likewise declined requests by the United States to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision.

In a dissent written by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan argued in favor of the stay of execution. The dissent argued that following through with the execution would place the United States in “irreparable breach of its obligations under international law.” The dissent pointed out that the United States has ratified the Vienna Convention and is therefore bound to inform an arrested foreign national, such as Mr. Garcia, that he has a right to request the assistance of his country’s consulate. The dissent observed that the Court is ignoring “the appeal of the President in a matter related to foreign affairs,” substitutes its own views about the likelihood of congressional action for the views of the Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. http://www.supremecourt.gov/opinions/10pdf/11-5001.pdf

Ninth Circuit Court of Appeals

United States v. Gonzalez-Melchor: The Court reversed and remanded Mr. Gonzalez-Melchor’s conviction and sentence for re-entry after deportation, finding that the immigration judge failed to advise Mr. Gonzalez-Melchor of his eligibility for voluntary departure and remanding for proceedings to determine whether Mr. Gonzalez-Melchor was prejudiced by this failure. The Court further found that the appeal waiver signed by Mr. Gonzalez-Melchor at sentencing in exchange for a reduced sentence is invalid and unenforceable. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/08/10-50111.pdf

Hurles v. Ryan: The court reversed the district court’s denial of Mr. Hurles’ petition for a writ of habeas corpus from his murder conviction and death sentence. Specifically, the court reversed the district court’s denial of Mr. Hurles’ judicial bias claim, finding that the trial judge’s action in becoming involved as a party in an interlocutory appeal, attempted but was denied standing to appear as an adversary, and then presided over Mr. Hurles’ murder trial and single-handedly determined his death sentence demonstrated bias and forced the court to conclude that Mr. Hurles was denied his right to due process. The Court remanded to the district court with instructions to grant a writ of habeas corpus as to Petitioner’s sentence unless the State of Arizona elects, within 90 days of the issuance of the mandate, to resentence Petitioner before a jury and presided over by a judge other than the original sentencing judge in this case.

In a dissent, Judge Ikuta argued that the Court’s decision ignores AEDPA’s command to defer to a state court decision unless it is objectively unreasonable, and argued that the AEDPA analysis here is straightforward. The dissent reported that, in an appeal of a denial of Mr. Hurles’ motion for appointment of a second attorney, the state Attorney General submitted a brief in the trial judge’s name defending the ruling. It was this participation that Mr. Hurles, over seven years later, claimed violated his due process rights and merited the judge’s recusal from further participation in this case. The trial judge denied that motion. The dissent observed that there is no clearly established Supreme Court authority that even hints the trial court’s decision was wrong, and argued that the court should have deferred to the trial court decision and denied Mr. Hurles’ petition. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/07/08-99032.pdf

United States v. Evanston: In a case of first impression, the Court held that a district court may not, over defense objection after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal. The Court concluded that allowing such a procedure in a criminal trial is an abuse of the discretion accorded district courts in the management of jury deliberations. The Court reasoned that allowing such supplemental argument addressing factual matters permitted counsel to look inside the jury’s deliberations and focus arguments to those factual concerns the court had asked the jury to reveal, the process, in form and substance, invaded the jury’s deliberations, resulting in impermissible coercion. The court vacated the verdict and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10159.pdf

United States v. Rahman: The Court held that Mr. Rahman’s waiver of his right to appeal his conviction extended to the denial of his subsequent motion to withdraw his guilty plea. The Court reasoned that an appeal from the denial of his motion to withdraw his plea is an appeal from his convictions. Further, the Court found that Mr. Rahman’s waiver of his right to appeal was made voluntarily and there was no evidence of ineffective assistance of counsel. However, the Court left open the possibility that Mr. Rahman might raise an ineffective assistance of counsel claim in a subsequent collateral attack. http://www.ca9.uscourts.gov/datastore/opinions/2011/07/05/10-10293.pdf

Schleining v. Thomas: The Court held that a prisoner is not eligible for federal Good Conduct Time (GCT) for time he served in state prison on state charges, before being sentenced on a related charge in federal court. The Court found that GCT can accrue only on the time a prisoner has “actually served” on his federal sentence, and other jurisdictions have determined that a federal sentence cannot begin before the defendant has been sentenced in federal court. The Court found the logic of those jurisdictions persuasive, and adopted it in this case. The court affirmed the district court’s denial of Mr. Schleining’s petition for a writ of habeas corpus and found that the formerly calculated release date is correct. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-35792.pdf

United States v. Snyder: Mr. Snyder appealed the district court’s determination that second degree burglary in Oregon was a predicate offense under the ACCA for purposes of imposing a sentencing enhancement. The government cross-appealed the district court’s decision that a conviction for felony attempt to elude in Oregon was not a predicate offense under the ACCA. The Court found that the district court was correct that the Oregon burglary conviction was a predicate offense under the modified categorical approach despite precedent to the contrary, as the original indictment together with the judgment of conviction proved that Mr. Snyder necessarily admitted to facts constituting generic burglary, which is a predicate offense under the ACCA. Additionally, the Court found that the felony attempt to elude conviction was a violent felony under the ACCA. The Court then remanded for resentencing under the mandatory minimum sentence of 15 years, with credit for time served. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/30/10-30148.pdf

United States v. Chapman: The Court upheld the district court’s refusal to award Mr. Chapman and his co-defendants attorneys fees under the Hyde Amendment as a result of a dismissed indictment with prejudice for the government’s failure to meet its disclosure obligations under Brady in this securities fraud matter. The defendants had moved to re-open the case after a previous denial of an attorney fee award, citing the discovery of an internal government memorandum written shortly after dismissal of the indictment but not discovered until after the Ninth Circuit had decided the prior appeal. The Court concluded that the district court did not err in declining to reopen the case. In so concluding, the Court reasoned that the memo discovered by the defense “does not provide a sufficient basis to conclude that the government’s failure to disclose impeachment evidence suggested substantive weakness in the merits of the case that made the failure to disclose relevant to innocence.” To the contrary, the Court found that the district court had made clear that the initial dismissal was intended as a sanction for misconduct, and not as a judgment on the merits that could render the defendants prevailing parties for the purposes of an attorney fee award. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/27/10-10338.pdf

Case Law Update, Week Ending 6-24-11

2011-06-29T08:51:00.000-07:00

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

Seattle v. May: The Court affirmed Mr. May’s conviction for violation of a domestic violence protection order, finding Mr. May’s claim that the order was invalid was violated by collateral estoppel. The Court also found that Mr. May’s claim that he lacked notice that violating the no-contact provision of the order was a criminal offense was meritless, as Mr. May in fact had fair notice of this provision. The court explained that if Mr. May believed the order was invalid his remedy was to seek modification of the order; he is not free to violate the order with impunity. http://www.courts.wa.gov/opinions/pdf/836779.opn.pdf

In his dissent, Justice Sanders observed that there must be an explicit and unambiguous statutory finding that the respondent is “likely to resume acts of domestic violence” against the petitioner in order to extend a permanent protection order beyond one year. The dissent argued that the boilerplate finding at issue in this case was vague and inadequate to validly extend the order. Thus, the dissent argued, the order was invalid and could not be admitted into evidence against Mr. May in this case. http://www.courts.wa.gov/opinions/pdf/836779.no1.pdf

Concurring in the dissent, Justice Stephens expressed her agreement with the dissent’s conclusion that the order does not satisfy the statutory requirements for a permanent protection order. However, Justice Stephens wrote separately because she did not feel she could endorse what she termed the dissent’s “gratuitous comments about the misuse of protection orders generally.” http://www.courts.wa.gov/opinions/pdf/836779.no2.pdf

State v. Mullen: The Court held that no Brady violation occurred when the prosecution in this case failed to disclose evidence in a previously sealed deposition of the defendant’s employer’s accountant that supported the defendant’s theory of the case that he had not stolen funds from his employer but had been sanctioned in the use of dealership funds as a reward for assistance with the owner’s dishonest financial dealings. The Court reasoned that the documents were obtained by a private party for the purposes of a separate civil suit, and fall outside the scope of the prosecutor’s duty to diligently seek out evidence favorable to the accused. http://www.courts.wa.gov/opinions/pdf/839816.opn.pdf

Division Two Court of Appeals

State v. Dow: The Court affirmed Mr. Dow’s conviction for first degree burglary, finding that the trial court’s instructions to the jury assigning the burden of proving duress to Mr. Dow was proper, and that the court’s failure to provide a limiting instruction on the use of prior convictions admitted under ER 609 was not in error. Finally, the Court found that counsel was not ineffective in failing to object to the first instruction and in failing to propose the second. http://www.courts.wa.gov/opinions/pdf/39870-2.11.doc.pdf

Federal Law

United States Supreme Court

Freeman v. United States: In an opinion written by Justice Kennedy, and joined by Justices Ginsburg, Breyer, and Kagan, the Court held that plea agreements under FRCP 11(c)(1)(C) may be eligible for sentence modifications under the Sentencing Reform Act of 1984, which authorizes retroactive amendment of a defendant’s term of imprisonment based on a retroactive amendments to the Sentencing Guidelines such as occurred here, when the Guidelines were amended to cure the disparity between sentences for cocaine base and powder cocaine offenses. The Court reasoned that, notwithstanding the fact that the government and Mr. Freeman agreed that the sentencing range dictated by the plea agreement in this case was appropriate and binding upon all parties once the agreement was accepted by the Court, the text of the applicable rules and statutes compel the conclusion that the district court must entertain a motion such as this based on the mandate to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of federal sentencing. The Court reversed the lower courts’ refusal to remand the case for additional sentencing action.

Concurring in the opinion, Justice Sotomayor concluded that if a FRCP 11(c)(1)(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction.

In a dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, argued that pursuant to FRCP 11(c)(1)(C), the proposed sentence in the plea agreement became binding on the district Court once it accepted the plea agreement, and that the parties had agreed on the specific length of the sentence with the apparent understanding that the agreement was immutable and not subject to amendment with changes to the Guidelines. http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf

Bullcoming v. New Mexico: In an opinion written by Justice Ginsburg with respect to all but Part IV and footnote 6, and joined by Justice Scalia in full and Justices Sotomayor and Kagan as to all but Part IV, and Justice Thomas as to all but Part IV and Footnote 6, the Court held that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. The court reasoned that the certification at issue in this case – blood draw results in a DWI matter – represented more than a machine-generated number, but rather the fact that the analyst had received Mr. Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Mr. Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. The court concluded that these representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. Further, the Court held, that the surrogate testimony of a substitute analyst who had not actually performed the testing in this case could not convey what the analyst who did perform the testing knew or observed about the events he certified, nor expose any lapses or lies on that analyst’s part. The Court observed that “[t]he Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” Finally, the Court cited Melendez-Diaz in finding that the State could not argue that the introduction of the lab report did not implicate the Confrontation Clause, as the report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding.

In a partial concurrence, Justice Sotomayor wrote separately to detail the reasons she believed the report at issue to be testimonial, specifically because its primary purposes was evidentiary, and second to emphasize the differences between the instant matter and Melendez-Diaz, primarily that the State did not attempt to justify the entry of the report under alternate means.

In a dissent, Justice Kennedy, joined by Justices Roberts, Breyer, and Alito argued that the Court had erred in extended the holding in Melendez-Diaz to this case, where a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court found a confrontation violation. The dissent argued that allowing employee testimony as a substitute for the testimony of the actual analyst in the case is fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee. The dissent disagreed that the decision would not place an undue burden on the Prosecution, finding that additional resources would need to be allocated to laboratory personnel to ensure that there was an appropriate representative available for testimony else risk inadmissibility of key evidence, and that those resources would be better spent elsewhere. http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

Ninth Circuit Court of Appeals

United States v. Flores-Perez: The Court found that there was no jurisdiction for it to consider Mr. Flores-Perez’ double jeopardy claims. Mr. Flores-Perez had moved to dismiss the action against him under a superseding indictment filed after the original indictment resulted in a hung jury. The Court found that the superseding indictment did not nullify the original indictment, and that the issuance of the superseding indictment did not terminate the original jeopardy, and thus no colorable claim of double jeopardy could be made. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/10-50246.pdf

United States v. Martinez: The court found that the life sentences of the defendants in this case, all members of the Mexican Mafia, were justified due to evidence they had participated in conspiracies to commit murder. The court further found that defendant Fernandez had agreed to facilitate a scheme which included the operation or management of a RICO conspiracy and was linked to one of the murders, and this was sufficient for his conviction. The Court found that statements linking defendant Valenzuela to another murder were admissible as statements of a coconspirator advancing the conspiracy’s aim. Additionally, the court held that the district court did not abuse its discretion when it admitted FBI Agent Vitkosky’s testimony as both an agent and an expert in the Mexican Mafia, reasoning that the district court properly identified the testimony as it came in. The Court found, as well, that though the government had not identified Agent Vitkosky as an expert within the time limit prescribed by the Federal Rules, it had done so in sufficient time for the defense to prepare cross-examination against this witness. The Court found that defendant Gonzalez was not prejudiced by significant redactions made in a voluntary statement he made to the government, and that the district court did not err in denying the defense’s motion for a mistrial based on the use of an apprehensive juror. Additionally, the Court found that the use of Mr. Martinez’ sobriquet of “The Evil One” and the shackling of the defendants, disguised as it was, was not in error. The Court further found meritless arguments against lay witnesses allowed to provide opinion testimony and the district court’s denial of defendant Durkin’s request for new counsel. Finally, the Court found it proper that the defendants’ motions for severance were denied, and that a document referred to as a Homicide Book was admitted for trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-50141.pdf

Reina-Rodriguez v. United States: The court concluded that its decision in United States v. Grisel has retroactive effect because it was a non-constitutional decision of substantive law. The court further found that, under Grisel, the defendant’s burglary conviction does not qualify categorically as a predicate offense for a sentence enhancement, and that the documents in the record are not sufficient to sustain the sentence under a modified categorical analysis. The Court therefore reversed the district court and remanded for resentencing. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/22/08-16676.pdf

United States v. Renzi: The Court affirmed in part the conviction of former Arizona Congressman Richard G. Renzi for allegedly using his public office to benefit himself rather than his constituents. According to the indictment, Mr. Renzi offered two private parties a quid pro quo deal, promising them his support in favorable future public land exchange legislation in exchange for the parties’ purchase of private land owned by a former business partner—a sale that would generate enough cash to repay a debt owed to Mr. Renzi. The Court rejected Mr. Renzi’ contention that he is protected by the Speech or Debate Clause, arguing that the public corruption charges against him amount to prosecution on account of his privileged “legislative acts”; that “legislative act” evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of “legislative act” evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit “negotiations.” The Court held that the Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility,” and that Mr. Renzi’s actions fall beyond the Clause’s protections. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/23/10-10088.pdf

Members Of Congress Introduce First Federal Measure Since 1937 To Legalize The Adult Use Of Marijuana -- Bipartisan Coalition Backs The 'Ending Federa

2011-06-24T16:25:00.000-07:00

Washington, DC: House lawmakers introduced legislation in Congress today to end the federal criminalization of the personal use of marijuana.

The bipartisan measure -- HR 2306, the 'Ending Federal Marijuana Prohibition Act of 2011' and sponsored by Massachusetts Democrat Barney Frank and Texas Republican Ron Paul along with Reps. Cohen (D-TN), Conyers (D-MI), Polis (D-CO), and Lee (D-CA) -- prohibits the federal government from prosecuting adults who use or possess marijuana by removing the plant and its primary psychoactive constituent, THC, from the five schedules of the United States Controlled Substances Act of 1970. Under present law, all varieties of the marijuana plant are defined as illicit Schedule I controlled substances, defined as possessing 'a high potential for abuse,' and 'no currently accepted medical use in treatment.'

Said Rep. Frank, "We do not believe that the federal government ought to be involved in prosecuting adults for smoking marijuana."

Said Rep. Cohen, "The federal government shouldn’t be spending its time on marijuana."

The 'Ending Federal Marijuana Prohibition Act' seeks to federally deregulate the personal possession and use of marijuana by adults. It marks the first time that members of Congress have introduced legislation to eliminate the federal criminalization of marijuana since the passage of the Marihuana Tax Act of 1937.

Language in this Act mimics changes enacted by Congress to repeal the federal prohibition of alcohol. Passage of this measure would remove the existing conflict between federal law and the laws of those sixteen states that allow for the limited use of marijuana under a physicians' supervision. It would also allow state governments that wish to fully legalize and regulate the responsible use, possession, production, and intrastate distribution of marijuana for all adults to be free to do so without federal interference.

Speaking today at a press conference in support of the measure, NORML Executive Director Allen St. Pierre said, "The federal criminalization of marijuana has failed to reduce the public's demand or access to cannabis, and it has imposed enormous fiscal and human costs upon the American people. It is time to end this failed public policy and to provide state governments with the freedom to enact alternative strategies -- such as medicalization, decriminalization, and/or legalization -- without running afoul of the federal law or the whims of the Department of Justice."

NORML, along with representatives from the Drug Policy Alliance (DPA), Students for Sensible Drug Policy (SSDP), and the Marijuana Policy Project (MPP), worked closely with members of Congress in drafting the measure.

For more information, please contact Allen St. Pierre, NORML Executive Director, or Keith Stroup, NORML Legal Counsel, at (202) 483-5500. Additional information regarding this measure is available online at: http://www.norml.org/index.cfm?Group_ID=8600.

New Marijuana Laws?

2011-06-24T16:22:00.000-07:00

Video Game - E3 2011 - The Loop

Kurt Boehl Lawyer in Seattle, Criminal Defense Attorney WA : Super Lawyers

2011-06-20T22:15:00.000-07:00

Kurt Boehl Lawyer in Seattle, Criminal Defense Attorney WA : Super Lawyers

Case Law Update, Week Ending 6-17-11

2011-06-20T12:24:00.000-07:00

Washington State Law

Washington State Supreme Court

Personal Restraint of Strandy: The Court granted Mr. Strandy’s motion for discretionary review and remanded to the trial court with directions to vacate two felony murder convictions that the trial court merged with two aggravated first degree murder convictions for sentencing purposes, but did not vacate at the time of sentencing. The Court concluded, and the State conceded, that it was clear from a reading of the judgment and sentence in conjunction with the information that Mr. Strandy was convicted twice for each homicide. http://www.courts.wa.gov/opinions/pdf/823081.opn.pdf

Division Three Court of Appeals

State v. Sweany: The Court held that when an individual commits first degree arson by "knowingly and maliciously . . . [c]aus[ing] a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds," the value of the property to be proved is the “value assigned the property for insurance purposes, whether or not it is (as it should be) a fair reflection of fair market value or replacement value.” In so holding, the Court reasoned that the arson statue’s plain language refers to property “valued at” $10,000 or more, and that the plain and ordinary meaning of "valued at" is of a value that is not inherent or objective but which is, or has been, assigned. Thus, for insurance-motivated arson, where the intent is to collect insurance proceeds, the logical assigned value would be the insured value, or the amount the arsonist hopes to collect. The Court found there was ample evidence to support the insured value as being greater than $10,000 in this case where the owner of the mobile home had taken out a policy insuring the home for $45,000. http://www.courts.wa.gov/opinions/pdf/288609.opn.doc.pdf

State v. King: The Court found that Mr. King’s offender score was incorrectly calculated on one of his two convictions, and reversed both convictions, holding that probation or supervision on an out of state criminal conviction does not count in a Washington offender score calculation. In so doing, the Court reasoned that the command of the SRA to add one point to the offender score if the current offense was committed while the offender was under community custody applies only to the various forms of post-custodial supervision applied to offenders under the SRA. The Court noted that the Legislature understood there were times when Washington supervision needed to equate with the practices of other states, but did not equate other states’ supervision of felons with Washington's supervision for purposes of scoring crimes committed in this state. http://www.courts.wa.gov/opinions/pdf/289052.opn.doc.pdf

Federal Law

United States Supreme Court

Bond v. United States: In an opinion written by Justice Kennedy for a unanimous Court, the Court held that Ms. Bond has standing to challenge the federal statute under which she was indicted, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States, on grounds that the measure interferes with the powers reserved to States. In so holding, the Court found that Article III’s standing requirement has no bearing on Ms. Bond’s capacity to assert defenses in the District Court, and that Article III’s prerequisites are met with regard to Ms. Bond’s standing to appeal. The Court disagreed with the government’s contention that Ms. Bond should be permitted to assert only that Congress cannot enact the challenged statute under its enumerated powers, but not that the statute interferes with state sovereignty.

In a concurrence, Justice Ginsburg, joined by Justice Breyer, wrote separately to observe that Ms. Bond, like any other defendant, has a person right not to be convicted under a constitutionally invalid law, as “[i]f a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free. For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct.” http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf

Davis v. United States: In an opinion written by Justice Alito, joined by Justices Roberts, Scalia, Kennedy, Thomas, and Kagan, the Court upheld a good faith exception to the exclusionary rule for searches conducted in violation of a defendant’s Fourth Amendment rights. The Court found that if the search is conducted in objectively reasonable reliance on binding appellate precedent, as was the search in this case, which was conducted prior to the issuance of the Gant decision. The Court reasoned that the exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, and it operation is limited to situations in which this purpose is “thought most efficaciously served.” Thus, the Court concluded, for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Those costs are not outweighed, the Court found, when police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence.

In a concurring opinion, Justice Sotomayor agreed that the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” In this case, the concurrence reasoned, application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence, and thus the exclusionary rule should not apply in this case.

In a dissent, Justice Breyer, joined by Justice Ginsburg, argued that the Gant decision held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have previously removed the automobile’s occupants and placed them securely in a squad car. The dissent noted that the present case involves the same circumstances and, because it was pending while this case was decided, applies in this case, as the majority found. However, the dissent parted ways with the majority with regard to the remedy, arguing that a new “good faith” exception and this Court’s retroactivity decisions are incompatible, as “the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent.” http://www.supremecourt.gov/opinions/10pdf/09-11328.pdf

J.D.B. v. North Carolina: In a unanimous decision written by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, the Court held that a child’s age properly informs Miranda’s custody analysis. Here, a juvenile was not given Miranda warnings or an opportunity to speak to his legal guardian or told he was free to leave the room until after his confession, and was pressured with the threat of juvenile detention to admit his involvement in a robbery. The Court reasoned that a child’s age in some circumstances affects how a reasonable person in the suspect’s position would perceive his or her freedom to leave, the standard for finding a custodial situation for Miranda purposes. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to a reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, nor to “anticipat[e] the frailties or idiosyncrasies of the particular suspect being questioned.” The Court remanded for the state court to address the question of whether J.D.B. was in custody when he was interrogated, taking into account all circumstances, including age.

In a dissent written by Justice Alito, and joined by Justices Roberts, Scalia, and Thomas, Justice Alito argued that the Court’s decision was not sensible, but was “fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases.” The dissent further argued that the holding was not necessary to protect the constitutional rights of minors who are questioned by the police. The dissent posited that this decision was the first step toward a slippery slope that would end in Miranda losing the “clarity and ease of application that has long been viewed as one of its chief justifications. http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf

Tapia v. United States: In a unanimous opinion written by Justice Kagan, the Court held that a federal statute directing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation,” does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Here, Ms. Tapia was convicted of smuggling unauthorized aliens into the United States, and the District Court, in imposing a 51-month prison term, noted its belief that Ms. Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ Residential Drug Abuse Program. The Court reasoned that prior attempts to use an indeterminate sentencing system premised on faith in rehabilitation had failed, resulting in serious sentencing disparities while rehabilitation was not achieved. The court found that the plain language of the statute as well as its context supported the conclusion reached by the Court.

Justice Sotomayor, joined by Justice Alito, concurred in the opinion, but wrote separately to note her skepticism that the District Judge in fact had lengthened Ms. Tapia’s sentence for rehabilitation purposes. However, the concurrence acknowledged that the District Judge’s comments at sentencing were not perfectly clear, and she could therefore not be certain that the judge did not lengthen Ms. Tapia’ sentence to promote rehabilitation. http://www.supremecourt.gov/opinions/10pdf/10-5400.pdf

Ninth Circuit Court of Appeals

United States v. Landa: The Court found that Mr. Landa’s prior conviction for driving with a BAC of .05 or greater while under 21 years of age was similar to a conviction for DUI and thus counted as a criminal history point pursuant to the US Sentencing Guidelines. The Court disagreed with Mr. Landa’s contention that his violation was actually more like a juvenile status offense and should not be counted under the Guidelines.

In a dissent, Circuit Judge Fletcher argued that the Court should have found that Mr. Landa’s offense was similar to a juvenile status offense and should not have been counted as a criminal history point. The dissent argued that the case should be remanded so that Mr. Landa could debrief the government and allow the district court to determine Mr. Landa’s eligibility for safety valve relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/15/09-10429.pdf

United States v. Holmes: The Court vacated and remanded for resentencing on Mr. Holmes’ convictions on six counts of setting public lands afire. Mr. Holmes had argued at sentencing that his crime did not include the destruction or attempted destruction of a place of public use. However, the Court found that Mr. Holmes had conceded the issue of whether the land was a place of public use. The Court then turned to the question of what it means to destroy land, reasoning that, unlike a shattered vase or a shredded document, land will nearly always rebound and be useable again. The Court found that to destroy land, the damage needn’t be total or irreversible and need not eliminate every possible use of the object. Rather, land is destroyed “if it is rendered incapable of being used for one or more of its principal purposes, and can’t be restored swiftly and relatively cheaply… [or] if its aesthetic, environmental, recreational, economic or cultural uses have been eliminated for a significant period of time, generally meaning more than a year.” The Court remanded for further consideration in light of its conclusions, noting that there was insufficient evidence in the record to determine whether or not the fires at issue had destroyed the land.

In a concurrence, Judge Kleinfeld agreed that the sentence should be vacated and the case remanded for resentencing, but argued that the level of sentencing guideline used in this case is that applied to blowing up a government building, an airport, a bus, or a train, and that those acts cannot be compared to the arson in this case. Rather, the concurrence argued, a lower sentencing level is appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/16/09-30211.pdf

United States v. Park: The court reversed and remanded for resentencing of Mr. Park’s 47-month sentence for a charge of being a felon in possession of a firearm, finding that the district court erred when it refused to impose a “crime of violence” sentencing enhancement based on Mr. Park’s prior conviction for first-degree burglary in California. The Court agreed with the government that the crime is categorically a crime of violence under the sentencing guidelines, and should have been so considered when sentence was imposed in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/09-50609.pdf

United States v. Wiles: The Court held that a conviction for attempted sexual assault constitutes a prior conviction for sentencing purposes of a law relating to aggravated sexual abuse, sexual abuse, or abusive conduct involving a minor, such that the district court should apply the enhanced sentencing range of fifteen to forty years to Mr. Wiles, who had been convicted in the present case of transporting or receiving child pornography. The Court reasoned that to be convicted of attempted sexual assault, the sexual assault must “be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” Further, the Court noted, Montana statutes and case law make clear than an attempt under Montana law relates to the competed offense. Thus, the Court concluded that a conviction for attempted sexual assault us under Montana law relates to sexual abuse for the purposes of the sentencing enhancement in this case, and that the district court did not err in imposing the enhancement. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/10-30224.pdf

Notices

Proposed court rule re: Access to judicial branch administrative records ready for public comments: A proposed new court rule governing public access to judicial branch administrative records has been released for public input by the Washington State Supreme Court. The rule presumes open access to judicial administrative records, within the standards and guidelines of the rule. Comments on the proposed rule must be received no later than November 30, 2011.
To read the proposed rule, go to http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=258 .

Case Law Update, Week Ending 6-3-11

2011-06-08T09:47:00.000-07:00

The following criminal cases of note were decided this week:

Washington State Law

Division One Court of Appeals

State v. J. M.: The Court upheld a school resource officer’s warrantless post-arrest search of a high school student’s backpack on school grounds. The Court found that the school resource officer fit the definition of “school official” conducting a school search and therefore the officer needed only reasonable grounds to search the backpack rather than probable cause. The Court held that under that standard, there was sufficient grounds for the search where the search, which revealed an air pistol, was conducted after the officer saw the student holding suspected marijuana. http://www.courts.wa.gov/opinions/pdf/64699-1.pub.doc.pdf

Division Two Court of Appeals

State v. Damiani: The Court entered an order publishing this February 1, 2011 opinion in which it held that the sentencing court erred in including in a judgment on a domestic violence matter a provision allowing Mr. Damiani to possess a firearm in a military formation or in combat. The Court held that the superior court does not have discretion in sentencing when a firearm restriction is statutorily mandated and the legislature included no discretion to waive or limit the firearm restriction, and ordered the provision stricken from the judgment and sentence. http://www.courts.wa.gov/opinions/pdf/39730-7.11.cor.doc.pdf

Division Three Court of Appeals

State v. Turnipseed: In this partially published opinion, the Court affirmed Mr. Turnipseed’s conviction for first degree manslaughter with a deadly weapon enhancement, finding that there was error in presentation of a partially inaudible videotaped testimony to the jury where the court lacked information on the substance of the omissions, but that the error was harmless. In the unpublished portion of the opinion, the Court found that the trial court properly gave a first aggressor instruction where Mr. Turnipseed had initially turned his car around to contact the victim to renew an exchange from the prior afternoon and then, although the victim had escalated the largely verbal dispute between the parties by pulling out a tire iron, he had, when threatened with Mr. Turnipseed's gun, dropped the iron, at which point Mr. Turnipseed continued to hold him at gunpoint to prevent him from leaving. Finally, the Court held that the error in the sentencing enhancement instruction established by Bashaw cannot be raised for the first time on appeal. http://www.courts.wa.gov/opinions/pdf/287556.opn.doc.pdf

In a concurrence, Judge Sweeney argued that the holding of the court with regard to the partially audible testimony admitted into evidence was probably correct, but that the issue was not one of constitutional magnitude, but rather was an evidentiary issue. http://www.courts.wa.gov/opinions/pdf/287556.con.doc.pdf

State v . Walters: The Court reversed Mr. Walters’ theft conviction for allegedly taking the keys belonging to a bar at which he was drinking. The Court declined to consider Mr. Walters’ argument that the seizure of the keys from his front pants pocket was illegal, as the issue was not raised at trial, and further declined to consider Mr. Walters’ argument that his counsel was ineffective for failing to raise that argument, finding that the record lacked a factual basis for determining the merits of the suppression argument, and finding that it was impossible to determine if that argument would have prevailed. However, the Court did reverse the theft conviction on the grounds that it was prejudicial error for the court to decline to give an intoxication instruction when there was evidence that Mr. Walters consumed at least nine drinks over the course of the evening and was affected thereby. http://www.courts.wa.gov/opinions/pdf/289915.opn.doc.pdf

In a dissent, Judge Sweeney argued that it was prejudicial error for the trial court to fail to give the intoxication instruction not just on the theft charge, but on the resisting arrest and assault charges against Mr. Walters as well. The dissent argued that the majority could not possible divine what a jury would have determined on those charges given the proper instruction. http://www.courts.wa.gov/opinions/pdf/289915.dis.doc.pdf

Federal Law

United States Supreme Court

United States v. Tinklenberg: Justice Breyer, joined by Justices Kennedy, Ginsburg, Alito, and Sotomayor, and Justices Roberts and Thomas as to parts I and III, found that “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion,” for purposes of the Speedy Trial Act of 1974 does not mean that there is a requirement that the filing of a pretrial motion actually cause, or is expected to cause, delay of a trial. Instead, the Court found, the clause stops the Speedy Trial clock from running automatically upon the filing of a pretrial motion irrespective of whether the motion has any impact on when the trial begins. The Court reasoned that the language of the clause, taken together with the fact that all courts of appeal save the Sixth Circuit, from whence this appeal originated, have held thusly, as well as the fact that the Sixth Circuit’s interpretation is needlessly complicating and difficult to square if the “automatic application” rule of Henderson v. U.S., and the fact that the interpretation is supported by legislative history, mitigate in favor of the Court’s holding. However, the Court found that the Sixth Circuit nevertheless reached the proper conclusion, and upheld the dismissal of Mr. Tinklenberg’s case, finding that speedy trial had been violated prior to the first day of trial.

Justice Scalia, joined by Justices Roberts and Thomas filed an opinion concurring in the judgment of the Court that a pretrial motion need not actually postpone a trial, or create an expectation of postponement, in order for its pendency to be excluded under the Speedy Trial Act of 1974. However, the concurrence argued, the conclusion is “entirely clear from the text of the Speedy Trial Act,” and there is no need to look beyond the text. http://www.supremecourt.gov/opinions/10pdf/09-1498.pdf

Fowler v. United States: Mr. Fowler was convicted of violating a federal witness tampering statute making it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense.” The Eleventh Circuit upheld the conviction, finding that a showing of a possible or potential communication to federal authorities was sufficient. Writing for the Court, Justice Breyer, joined by Justices Roberts, Kennedy, Thomas, Sotomayor, and Kagan, held that in such circumstances, the government must establish that there was a “reasonable likelihood” that a relevant communication would have been made to a federal officer, not just any law enforcement officer or any other person. The Court reasoned that the language of the statute, given its ordinary meaning, supports a conclusion that, where a defendant kills another person with an intent to prevent communication with any law enforcement officer, that intent “includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer.” The Court explained that the Government need not show that the communication would have reached a federal officer beyond a reasonable doubt, or that it was more likely than not, but must show that it was more than a remote or hypothetical possibility. The Court then found that because this standard was not used as trial, the case should be remanded for a determination of whether, and how, the standard applies in this case.

In an opinion concurring in the judgment, Justice Scalia disagreed with the Court’s interpretation of the statute, arguing that instead the Government must prove that the defendant “intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer.” The concurrence posited that the Court’s “reasonable likelihood” standard “has no basis in the statutory text and will serve only to confuse judges and juries.” Justice Scalia agreed that the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, but argued that there was insufficient evidence to support Fowler’s conviction.

Justice Alito, joined by Justice Ginsburg, dissented, arguing that the Court “effectively amended” the statute at issue by adding an element that is not included in the text of the statute. The dissent argued that the Court’s new element “makes little sense and will create confusion for trial judges and juries.” Instead, the dissent argued, the Court should have found that the evidence in this case was sufficient to establish “all of the elements that Congress saw fit to include.” http://www.supremecourt.gov/opinions/10pdf/10-5443.pdf

McNeill v. United States: In a unanimous opinion written by Justice Thomas, the Court held that a federal sentencing court must determine whether an offense under state law is a serious drug offense for purposes of a sentencing enhancement under the Armed Career Criminal Act (ACCA) by consulting the maximum term of imprisonment applicable to the offense at the time of conviction for that offense, rather than the maximum term of imprisonment at the time of the federal conviction. Under the ACCA, a “serious drug offense” is “an offense under State law . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law.” The District Court determined that Mr. McNeill qualified for the sentencing enhancement based on six prior North Carolina drug trafficking convictions which, at the time of Mr. McNeill’s conviction carried a ten-year maximum sentence. However, Mr. McNeill argued that he should not have been assessed the sentencing enhancement because the State later reduced the maximum sentence for those offenses to fewer than 10 years. The Court reasoned that its conclusion was mandated by the plain language of the statute, which focuses on convictions that have already occurred, and the sentence at the time of the state conviction. http://www.supremecourt.gov/opinions/10pdf/10-5258.pdf

Ashcroft v. Al-Kidd: In an opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Alito, the Court held that an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had improper motive. Therefore, the court concluded, Attorney General Ashcroft had immunity from a suit for money damages. The Court went on to find that the warrant was valid and provided individualized suspicion for the arrest.

In a concurring opinion, Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor (as to Part I only) joined the opinion of the Court in full, but wrote separately to make two additional observations. First, the concurrence noted that the Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. Second, the concurrence observed that the fact that the Attorney General holds a high office in the Government must inform what law is clearly established for the purposes of this case.

Justice Ginsburg, joined by Justices Breyer and Sotomayor also wrote separately, agreeing with the Court that no “clearly established law” renders Mr. Ashcroft answerable in damages for the abuse of authority charged in this case. However, the concurrence objected to the Court’s disposition of Mr. al-Kidd’s Fourth Amendment claim on the merits, agreeing with Justice Sotomayor that the claim “involves novel and trying questions that will have no effect on the outcome of this case,” and that a merits disposition was neither necessary nor proper. The Concurrence argued that the validity of the material witness warrant could not be presumed, when the affidavit on which it was base fails to inform the issuing Magistrate Judge that “the Government has no intention of using [al-Kidd as a witness] at [another’s] trial,” and does not disclose that al-Kidd had cooperated with FBI agents each of the several times they had asked to interview him. Further, the Concurrence observed, the Magistrate Judge was not told that Mr. al-Kidd’s parents, wife, and children were all citizens and residents of the United States, and misrepresented that Mr. al-Kidd was about to take a one-way flight to Saudi Arabia, with a first-class ticket costing approximately $5,000; in fact, al-Kidd had a round-trip, coach-class ticket that cost $1,700.

In a separate concurrence, Justice Sotomayor, joined by Justices Ginsburg and Breyer, concurred in the Court’s judgment, agreeing with the majority’s conclusion that Mr. Ashcroft did not violate clearly established law. However, the concurrence argued that the majority’s opinion additionally and unnecessarily resolved a difficult and novel question of constitutional interpretation that will have no effect on the outcome of the case. The Concurrence argued that whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is a closer question than the majority’s opinion suggests. The Concurrence argued that the court had not yet considered whether an official’s subjective intent is relevant for purposes of the Fourth Amendment in the context of a prolonged detention of an individual without probable cause to believe he had committed any criminal offense, and that the Court need not and should not resolve that question in this case. http://www.supremecourt.gov/opinions/10pdf/10-98.pdf

Ninth Circuit Court of Appeals

United States v. Ellis: The Court affirmed Mr. Ellis’ sentence for seven counts of bank robbery, finding that the government did not breach the plea agreement, as Mr. Ellis contended, and that the sentence imposed by the District Court reasonable and any error in the sentence was harmless. The Court reasoned that the moderately above-Guidelines sentence imposed in this case for a defendant who committed seven bank robberies, after serving prison time for rape and armed robbery, was reasonable under the broad discretion afforded the district court. The Court further concluded that the district court’s characterization of Mr. Ellis’ seven armed bank robberies as “serious [ ]” offenses that traumatized their victims and its emphasis on the need to provide “just punishment,” to deter criminal conduct generally, and to “protect [ ] the public from further crimes of this individual” reflected a “rational and meaningful consideration of the factors enumerated in the sentencing guidelines. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-50652.pdf

Haney v. Adams: The Court held that a petition may not raise a Batson claim in his habeas petition if the petitioner failed to object to the prosecution’s use of peremptory challenges at trial. The Court affirmed the judgment of the district court denying this petitioner’s petition for habeas corpus. In its opinion, the court cited procedural concerns, as well as the opinion that it would be “unwise to allow defendants ‘to manipulate the [trial] system to the extreme prejudice of the prosecution’ by allowing post-conviction Batson claims. The Court reasoned that a defendant would be incentivized to allow the trial to proceed with the selected jury and then if convicted raise a Batson claim on appeal “long after the prosecutor may have forgotten the reasons for his challenges.” http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/09-16148.pdf

Emery v. Clark: The Court affirmed the denial of Mr. Emery’s habeas petition on robbery and murder convictions with gang enhancements, finding there was sufficient evidence to support the special circumstances finding and the gang enhancements. The Court cited testimony of the prosecution’s gang expert that the shooting was committed over a simple deal that had occurred with one of Mr. Emery’s friends, leading the expert to conclude that the act “shows that he had to go and do something worse than just beating him, . . . because [the victim] disrespected . . . his gang by messing with one of his friends . . . .” The expert testified that the use of lethal force over a small fight would help Mr. Emery retain respect as a hard core gang member and would raise his status within the gangs. The court further found that the California Supreme Court reasonably applied federal law in concluding that the evidence presented at trial was sufficient
to support the jury’s finding that Emery committed the attempted robbery and murder of Henry Chow “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as there was sufficient evidence for a rational trier of fact to find that Mr. Emery acted with the “specific intent to promote, further, or assist in” some type of “criminal conduct by gang members,” which may include the crimes of conviction. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/27/08-55249.pdf

United States v. Baptist: The Court affirmed Mr. Baptist’s statutorily mandated sixty-month minimum sentence following his guilty plea to conspiracy to possess crack cocaine with intent to distribute, and distribution of at fourteen grams of crack cocaine. The Court, while sympathizing with Mr. Baptist and clearly abhorring the outcome to which they were constrained, nevertheless declined to apply the Fair Sentencing Act retroactively, which would eliminate the mandatory minimum sentence implied in this case due to the clear sentencing disparity for crack over other drugs. The Court reasoned that there was no evidence that Congress intended the Fair Sentencing Act to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment, and therefore the Court was prohibited from a retroactive application of the Act. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/09-50315.pdf

United States v. Buckles: The Court held that Mr. Buckles’ 28 U.S.C. § 2255 motion was untimely, finding that the Ninth Circuit’s order recalling the mandate so that the Court could consider Mr. Buckles’ motion for appointment of certiorari counsel did not restart the clock for the 90-day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. However, the Court remanded for further proceedings to determine whether Mr. Buckles did in fact receive misinformation from someone in the Ninth Circuit Clerk’s office regarding the time limits for filing, which may entitle Mr. Buckles to equitable tolling. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/08-36031.pdf

United States v. Rodriguez-Castro: The Court affirmed Mr. Rodriguez-Castro’s 57-month sentence, finding that the district court did not abuse its discretion when it declined to decrease the base offender level as recommended by the plea agreement between Mr. Rodriguez-Castro and the government. The Court reasoned that the district court considered Mr. Rodriguez-Castro’s work history, the lack of a criminal record in Mexico, his role as a “conscientious father,” and the need to avoid unwarranted sentence disparities, but was also cognizant of the need to deter the importation of huge amounts of cocaine, and assessed a proper sentence in this case after finding that Mr. Rodriguez-Castro failed to demonstrate that he was a minor participant in the offense.

In a concurrence, Judge Silverman, joined by Judge Tallman, defendant the district court’s decision in this case, arguing that the district judge is obligated to accurately calculate the sentencing guidelines no matter what the parties would like it to be. The Concurrence agreed with the majority that the District Court was well within its discretion in the sentence in this case.
http://www.ca9.uscourts.gov/datastore/opinions/2011/06/02/10-50273.pdf

Sessoms v. Runnels: The Court affirmed the denial of Mr. Sessoms’ habeas corpus petition challenging his California felony murder conviction. The Court held that Mr. Sessoms was unable to show that “the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Specifically, the Court held that there was insufficient evidence that Mr. Sessoms had unequivocally asserted his right to counsel when he asked Sacramento homicide detectives whether he had a right to an attorney and subsequently told those detectives that his father had asked him to inquire about an attorney, and there was no obligation for the detectives to ask him about any assertion of rights prior to proceeding with an interrogation. Finally, the Court held that there was insufficient evidence that detectives violated Mr. Sessoms’ right to remain silent when they interviewed him without objection five days after he invoked his right to remain silent to different officers from a different police department after he was arrested.

In a strongly-worded dissent, Judge Fletcher argued that while a federal court review of a state petition for writ of habeas corpus is significantly limited by AEDPA, such review “is not toothless,” and that when the government “take[s] a butcher knife to Miranda . . . a federal court can’t sit idly by.” The dissent observed that after 19-year-old Tio Dinero Sessoms turned himself in at the police station, he asked detectives for an attorney, first asking, “There wouldn’t be any possible way that I could have a — a lawyer present while we do this?” As the detective paused, Mr. Sessoms explained that his father had told him to ask the police to give him a lawyer, and expressed his concerns that his words might be misrepresented if he did not have an attorney present. Detectives did not call counsel, but dissuaded Mr. Sessoms from exercising that right, telling him that counsel was unnecessary because the detective was an “upfront and honest” guy who would not try to play “switch games,” and because the conversation would be recorded. Once recording, the detective informed Mr. Sessoms that two other suspects had “waived [their] rights” and given statements incriminating Mr. Sessoms, but that he understood that there are “two sides to every story.” The detective advised that a lawyer would probably prevent Mr. Sessoms from making a statement and being able to tell the police his “version of it.” The detective then refused Mr. Sessoms’ request to fall his father before speaking, telling Mr. Sessoms he was an adult. Only then, the dissent noted, did the detective read Mr. Sessoms his Miranda rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/03/08-17790.pdf

Bellevue's Proposed "Drug Loitering" Ordinance Promotes Racial Profiling and May Be Unconstitutional, Says Lawyer

2011-05-24T16:10:00.000-07:00

By Curtis Cartier, Tue., May 24 2011 at 2:16 PM
Categories: Law & Courts

Bellevue police officers would really like to arrest a handful of people that hang out in the Crossroads and Factoria neighborhoods and look like they're selling drugs. Unfortunately the whole "Fourth Amendment of the Constitution" thing requires police to have either a warrant or probable cause to make such arrests.

But what if there was a law that allowed officers to arrest people for "loitering with the intent of engaging in drug-related activity"? And what if instead of probable cause, police only needed "reasonable suspicion" to detain and arrest someone for that crime? The Bellevue City Council wants to find out.

Last night, after hearing from two BPD officers who complained about not being able to arrest known drug dealers because the dealers are hiding their drugs off-site, the council voted to look more closely at a law that would let officers arrest people for simply appearing to be trying to sell drugs.

Bellevue Police Legal Advisor Kyle Aiken explained at the hearing:

"Known convicted drug dealers hang out on public sidewalks... So they're out there, they hold what appear to be innocent conversations and then they escort the person--the customer--out of the sight of officers where it's presumed a drug sale occurs," Aiken testified. "The officers can't do anything because those are all innocent actions."

The proposed law would make those "innocent actions" no longer innocent and allow officers to search and arrest people for "drug-related loitering."

The proposed ordinance is actually based on existing laws in Seattle, Tacoma and Yakima--most closely the law in Tacoma.

Early language from the legislation states:

If an officer observes circumstances that gives the officer a reasonable suspicion that the person is loitering with (the intent of selling drugs). . . The officer will have the ability to arrest this person.

But serious questions remain as to whether such a law would be constitutional. Aiken and Bellevue PD note that the Washington Supreme Court upheld Tacoma's drug-loitering law in 1992.

This is true. But along the way judges have noted that the law is vulnerable to constitutional challenges from higher courts.

The Seattle Times reported in 1990 that when Pierce County Superior Court Judge James Healy upheld Tacoma's drug-loitering law, he did so with the caveat that it may be struck down later.

The law has never been challenged in federal court. But according to Seattle attorney Kurt E. Boehl, a former Seattle city prosecutor and expert in constitutional law, "with the right case" a challenge to this ordinance could go all the way to the U.S. Supreme Court.

"How could a law like this not create profiling? Especially racial profiling?" Boehl tells Seattle Weekly today. "I think it's expanding what officers can use to make contact and make arrests. And it's expanding their arsenal at the expense of our civil rights. What exactly does a drug dealer look like?"

Aiken maintains that she's confident the proposed law is constitutional. But when asked what prevents officers from using normal probable cause procedures to obtain a search warrant and find where the drugs that the alleged dealers in question are hiding, she balks.

"These officers aren't able to develop probable cause for a crime, but they have reasonable suspicion," she says.

Reasonable suspicion and probable cause have, of course, two completely separate legal definitions--the latter requiring much more evidence than the former. But having a law that makes the two terms essentially the same thing would certainly simplify things for cops--never mind what it does to individual liberties.

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Case Law Update, 5-20-11

2011-05-24T10:24:00.000-07:00

Washington State Supreme Court:

State v. Williams: When stopped on suspicion of first degree theft, Mr. Williams gave officers a false name, apparently to avoid discovery of an outstanding warrant. Mr. Williams was convicted of the theft along with a charge of making a false statement, and one of obstruction. The Court reversed the obstruction charge, finding that some conduct in addition to pure speech is necessary in order to establish obstruction of an officer. The Court observed that it not only had concerns that criminalizing pure speech would implicate freedom of speech, but that it also had concerns that, were it to criminalize pure speech, officers, without probable cause or even reasonable suspicion that a crime is being committed, may engage citizens in conversation, arrest them for obstruction based upon false statements, and then search incident to the arrest. The Court concluded, “Our continued interpretation of obstruction statutes as requiring some conduct ensures these constitutional limits are maintained.” http://www.courts.wa.gov/opinions/pdf/839921.opn.pdf

State v. Martin: The Court affirmed Mr. Martin’s conviction on three counts of first degree kidnapping and one count of second degree robbery, holding that there was no violation of article I, section 22 of the Washington State constitution when a deputy prosecutor, on cross-examination, posed questions to Mr. Martin that inferred he had tailored his testimony to be consistent with police reports, witness statements, and prior witness testimony. In so holding, the Court recognized that, in the context of prosecutorial suggestions of tailoring, article I, section 22 is more protective than the Sixth Amendment. But the Court further recognized that, in this case, questions posed by the prosecutor were posed in response to statements made by Mr. Martin during direct examination that hinted that his testimony was in fact based on prior witness testimony. http://www.courts.wa.gov/opinions/pdf/837091.opn.pdf

In his dissent, Justice Sanders agreed with the majority that article I, section 22 of the Washington Constitution affords greater protection in this instance than the Sixth Amendment to the United States Constitution, but disagreed with the majority’s “ill-reasoned decision which interprets article I, section 22 as being compatible with inferences of tailoring during cross-examination.” The dissent pointed out that the majority opinion would allow the State to implicitly criticize the defendant for exercising the constitutional right to review pre-trial evidence against him, be present at trial, and confront witnesses against him. This, the dissent argued, presents the defendant with the Hobson’s choice of exercising his right to be present at trial and testify, or sequester himself in order to prevent the taint of a tailoring accusation. http://www.courts.wa.gov/opinions/pdf/837091.no1.pdf

In a partial concurrence/partial dissent, Justice Stephens concurred in the result reached by the majority, but solely on the basis of harmless error. Justice Stephens agreed with the dissent that article I, section 22 of our state constitution does not permit the State to suggest the defendant has tailored his testimony when exercising his trial rights. Justice Stevens further shared “without reservation” the observation made by the dissent that "'[p]rosecutorial comment suggesting that a defendant tailored his testimony inverts [a defendant's fair trial rights], permitting the prosecutor to punish the defendant for exercising that which the Constitution guarantees.'" However, Justice Stephens agreed with the majority result because she believed that the impermissible cross-examination that occurred in this case was harmless error. http://www.courts.wa.gov/opinions/pdf/837091.ip1.pdf

Division One Court of Appeals

In Re Detention of Aston: The Court upheld Mr. Aston’s civil commitment as a sexually violent predator (SVP). In so doing, the court held that the State provided sufficient evidence to prove beyond a reasonable doubt that Mr. Aston committed a recent overt act when he admitted to probation officers that he possessed child pornography, that he was fantasizing about sex with minors, and that he had been writing down these fantasies and threatened to reoffend if given the opportunity. Further, the Court held that a unanimity instruction was not required for the jury to decide that Mr. Aston committed a recent overt act, and the trial court did not abuse its discretion in denying Mr. Aston’s motion for a mistrial, nor did it abuse its discretion or violate Mr. Aston’s right to an impartial jury by setting 20 minute time limits for voir dire for each side. http://www.courts.wa.gov/opinions/pdf/64264-2.pub.doc.pdf

State v. Chirinos: The Court held that, where the trial court seats an alternate juror after temporarily excusing that juror, the court must instruct the reconstituted jury to begin deliberations anew, but need not determine on the record that the alternate juror remains impartial, as the rule governing the seating of alternate jurors confers upon the trial court the discretion to determine whether such an inquiry is necessary. Here, the trial court complied with this rule, and thus Mr. Chirinos was not denied his constitutional right to an impartial jury. The Court further found without merit Mr. Chirinos’ remaining claims that 1) there was insufficient evidence presented to support the jury’s verdict finding him guilty of attempted robbery in the second degree, 2) that the trial court erred by admitting evidence that the car in which he was found was stolen, 3)that the prosecutor committed misconduct during Mr. Chirinos' cross-examination by asking questions that, Mr. Chirinos asserts, were intended to elicit from him statements that several of the State's witnesses were lying, and 4) that he was denied a fair trial because the prosecutor in closing argument informed the jury that Mr. Chirinos had proposed instructions on two lesser included offenses. http://www.courts.wa.gov/opinions/pdf/64725-3.pub.doc.pdf

State v. Allen: Mr. Allen appealed his felony harassment conviction, arguing that the trial court deprived him of a fair trial when it refused to give Mr. Allen’s proposed jury instruction on cross-racial eyewitness identification. The Court disagreed and affirmed, following prior cases holding that such an instruction risks violating the constitutional prohibition against comments on the evidence. The Court also disagreed with Mr. Allen’s arguments that the prosecutor improperly vouched for the credibility of the victim, and that the information and to convict instruction were deficient for not containing true threat as an element of felony harassment. http://www.courts.wa.gov/opinions/pdf/64466-1.pub.doc.pdf

In a concurrence, Judge Ellington agreed with the conclusion reached by the majority, but wrote separately to argue that the Court should advise jurors that cross-racial identification should be carefully scrutinized. The concurrence argued that such an instruction could be drafted without making a judicial comment on the evidence, and that an instruction is past due. http://www.courts.wa.gov/opinions/pdf/64466-1.con.doc.pdf

Division Two Court of Appeals

State v. Frasquillo: In this partially published opinion, the Court affirmed Mr. Frasquillo’s conviction for second degree assault and attempted second degree assault, holding that though the Court erroneously gave the jury the transferred intent instruction, but the error was harmless as the instruction as written did not apply to the attempted assault charge. The Court further held that there was sufficient evidence of Mr. Frasquillo’s intent to assault three of his victims. http://www.courts.wa.gov/opinions/pdf/39128-7.11.doc.pdf

State v. Hunley: Mr. Hunley appealed his conviction for attempting to elude a police vehicle, arguing that defense counsel was ineffective in failing to request a lesser included offense instruction for reckless driving, and that provisions of the SRA unconstitutionally relieved the State of its burden of proof at sentencing. The Court held that reckless driving is not a lesser included offense in attempting to elude a police vehicle, and thus there was no ineffective assistance in counsel’s failure to request an instruction. However, the Court held that the challenged SRA provisions do violate due process, and remanded for resentencing to allow the State an opportunity to prove Mr. Hunley’s criminal history. http://www.courts.wa.gov/opinions/pdf/39676-9.11.doc.pdf

Division Three Court of Appeals

State v. McCabe: In this partially published opinion, the Court upheld Mr. McCabe’s conviction for delivery of a controlled substance and possession with intent to deliver a controlled substance. The Court found no error or abuse of discretion in the trial court’s denial of Mr. McCabe’s motion to present telephonic testimony of a witness unwilling to testify in court. http://www.courts.wa.gov/opinions/pdf/288005.opn.doc.pdf

State v. Coristine: The Court affirmed Mr. Coristine’s conviction for second degree rape, holding that a jury instruction that it was an affirmative defense that Mr. Coristine reasonably believed that the victim was not mentally incapacitated or physically helpless, given alongside an instruction that Mr. Coristine could not be found guilty if the victim was in fact capable of consent was proper. The Court found that the instruction was required by the evidence in this record, was not inconsistent with Mr. Coristine’s defenses, and was harmless in any event because the jury concluded that the victim was not capable of consent. http://www.courts.wa.gov/opinions/pdf/288684.cor.doc.pdf

Federal Law

United States Supreme Court

Kentucky v. King: Justice Alito, writing for the Court, and joined by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan, held that the exigent circumstances rule applies when police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. In this case, the Court found that the police properly knocked, announced their presence, and then entered to prevent the destruction of evidence, a valid exigency under which a warrantless search is permitted. The Court found no evidence that officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the residence, but merely knocked an announced, consistent with the Fourth Amendment. In so holding, the Court rejected arguments that by knocking and announcing, rather than lying in wait and first obtaining a warrant, the officers created their own exigency.

In her dissent Justice Ginsburg argued that this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Rather than obtain a warrant, even when time exists to do so, the dissent observed that police may now knock, listen, and then break down the door. The dissent argued that police should not be allowed to dispense with the need to get a warrant by creating exigent circumstances, as was done here; rather, the exigency must exist when police arrive on the scene. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

Brown v. Plata: In a landmark ruling, Justice Kennedy, writing for the Court and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan ruled that the State of California must release approximately 46,000 convicted criminals to reduce overcrowding in the State’s prisons that has resulted in a violation of the inmates’ Eighth Amendment rights.

In his dissent, Justice Scalia, joined by Justice Thomas argued that “the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” Instead, the dissent argued that the Court should have made an effort to read the law so as to avoid the mass release.

In his dissent, Justice Alito, joined by Chief Justice Roberts argued that the Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” However, the dissent argued, undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. Here, the dissent contended, the District Court exceeded its authority under both the Constitution and the Prison Litigation Reform Act of 1995 by ordering a radical reduction in the California prison population without finding that the current population level violates the Constitution. http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

Ninth Circuit Court of Appeals

United States v. Tsosie: The Court vacated and remanded a restitution order directing Mr. Tsosie to pay $31,994 in restitution to the mother of the victim of Mr. Tsosie’s sexual abuse to cover costs she incurred in making a series of trips between her home and the victim’s boarding school, 150 miles away because the victim’s therapist had prescribed a course of treatment that included the victim seeing her mother every weekend. The Court held that the award lacked an evidentiary basis and that the District Court had not adequately explained its reasons for entering the order. The Court further held that Mr. Tsosie had not waived his right to appeal the restitution order when entering his guilty plea, as he had not been given proper notice of the amount of restitution sought.

In a partial dissent and partial concurrence, Judge Bea agreed that the law requires a finding that Mr. Tsosie did not waive his right to appeal the restitution order because he was not aware of the restitution amount at the time he entered the plea agreement on the child molestation charges. However, Judge Bea dissented from the finding that the district court erred in awarding restitution to the victim’s mother based on insufficient evidence when the victim’s mother had provided a detailed spreadsheet showing her expenses. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/10-10030.pdf

Velasquez v. Kirkland: The Court found that the one-year statute of limitations for filing a federal habeas corpus petition is not tolled during a California state prisoner’s delays between his state-court petitions for collateral review. Specifically, the Court found that Mr. Velasquez provided no adequate justification for the delays in his state court filings, and there was no indication that the delays were proper under state law to warrant statutory tolling of the deadline. Further, the Court found Mr. Velasquez did not demonstrate “extraordinary circumstances” to warrant equitable tolling of the deadline. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-55823.pdf

Harrison v. Gillespie: The Court found that under the facts of this case, the trial judge did not abuse her discretion when she excused the deadlocked jury without first polling them, per Mr. Harrison’s request, as to whether they had ruled out the death penalty and was deadlocked on a lesser sentence. The Court found that capital defendants do not have a per se constitutional right to inquire about the possibility that a penalty-phase jury has reached a preliminary decision against imposing the death penalty. The Court concluded that granting such a right would lead to the risk that the trial court could through polling coerce the jury into reaching a compromise it might not otherwise reach or to encourage the jury to treat a preliminary vote as a final verdict. Here, the Court reasoned, the jurors were deadlocked, appeared frustrated after lengthy proceedings, may have been inclined to treat a preliminary compromise as a final verdict, and never indicated that they had reached a final finding acquitting Mr. Harrison of the death penalty. The Court also held that in the retrial of the penalty phase the Double Jeopardy Clause does not preclude the State from including the death penalty as a sentencing option.

Judge Thomas, joined by Judges Reinhardt, Fletcher, Fisher, and Berzon, dissented, arguing that it would appear that the jurors in Mr. Harrison’s trial had decided to acquit him of the death penalty, and had informed the judge that they were deadlocked between life with parole and life without parole. The dissent argued that it was improper for the judge to have refused to conduct the requested poll and summarily declared a mistrial, particularly where there was no manifest necessity to discharge the jury without conducting the requested poll that would have answered the question of whether the jurors had reached a death penalty verdict. The dissent argued that the trial judge violated Mr. Harrison’s right to have the “particular tribunal give complete consideration to his case,” and that he should not be subject a second time to the death penalty.

Judge Reinhardt, joined by Judge Thomas, dissented, noting that he joined in Judge Thomas’ dissent but wrote separately to emphasize that the trial court’s declaration of a mistrial when there was no manifest necessity to do so was based on “fundamental misunderstanding of the function of a capital sentencing proceeding.” The trial judge thus precluded Mr. Harrison from obtaining confirmation that the jury had found him ineligible for death and that the double jeopardy clause would bar him from being so sentenced in any subsequent proceedings. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/10/08-16602.pdf

United States v. Escamilla-Rojas: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Ms. Escamilla-Rojas’ rights under FRCP 11 and the Fifth and Sixth Amendments. The court reasoned that Ms. Escamilla-Rojas had more than adequate representation by counsel and thus failed to “demonstrate a reasonable probability that . . . the result of the proceeding would have been different,” if counsel had not been temporarily separated from her during the group advisement. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/12/10-10185.pdf

United State v. Diaz-Ramirez: The Court found that the taking of guilty pleas during a large group plea hearing did not violate Mr. Diaz-Ramirez’ rights under FRCP 11 and the Fifth and Sixth Amendments. The Court reasoned that Mr. Diaz-Ramirez did not demonstrate that any error in the proceeding was plain and affected his substantial rights, and that, but for the error, he would not have entered his plea. In short, the Court found that Mr. Diaz-Ramirez did not even suggest, much less show, that he would not have pleaded guilty if the plea hearing had been more individualized, the Court could not conclude that there was any plain error. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-10230.pdf

Leavitt v. Arave: The Court reversed the District Court’s finding that Mr. Leavitt’s counsel’s performance was deficient at the sentencing phase when counsel decided not to seek an MRI or pursue further investigation into Mr. Leavitt’s mental health in an effort to prevent him from being sentenced to death on a gruesome murder case. The Court reasoned that the mental health angle had been tried once by previous counsel and had failed. Further, the Court observed, given the “gruesome nature of the crime, coupled with the relatively weak additional evidence” to be found in an MRI, any ineffectiveness, if present, was harmless.

Judge Reinhart dissented, arguing that Mr. Leavitt’s counsel was incompetent to the point that confidence in the outcome of the case was undermined. The dissent argued that counsel was duty bound to seek the MRI that had been previously denied, and failing to do so prevented him from discovering evidence establishing that Mr. Leavitt suffers from organic brain damage, plainly undermining confidence in the outcome of the case and the sentence imposed. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/08-99002.pdf

United States v. Lettiere: The Court held that the district court did not err in failing to instruct the jury on the dictionary definition of “brandish” in lieu of or in addition to the statutory definition as part of Mr. Lettiere’s trial on charges of robbery affecting commerce and use of a firearm during a crime of violence. The Court found that the statutory definition was the correct and narrower definition and was properly used in this case.

In a concurrence, Judge Tashima agreed with the outcome but wrote separately to explain why it is necessary for the Court to fully review Mr. Lettiere’s challenge to the jury instruction defining “brandish,” expressing concern that readers would be confused as to why the definition was necessary when brandishing is not an element of the offense which must be found by a jury, but is a sentencing factor to be found by the judge. The concurrence explained that the indictment charged that Mr. Lettiere had used and brandished a firearm, and that the defendant and the government had agreed to the use of the definitional instruction at the charge conference. Under these facts, the term “brandish” thus became an element of the offense in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/10-30101.pdf

Williams v. Cavazos: The Court granted Ms. Williams’ petition for habeas relief, finding that the district court improperly dismissed a known holdout juror and replaced him with an alternate in order to move the trial along and secure a conviction. The Court found that this action violated Ms. Williams’ Sixth Amendment rights. “In view of the reasonable possibility that Juror No. 6’s discharge was directly or indirectly the result of his position on the merits of the case, and in view of the lack of good cause to justify his dismissal,” the Court found that Ms. Williams was deprived of his right to a fair try by jury. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf

Seattle Mayor/City Council want Med MJ Guidance from Olympia

2011-05-18T15:28:00.000-07:00

McGinn, Constantine: Pass medical pot legislation

Supreme Court OKs warrantless searches

2011-05-17T08:32:00.001-07:00

The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.

By Tribune Washington bureau and The New York Times

WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.

The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.

Residents who "attempt to destroy evidence have only themselves to blame" when police burst in, Justice Samuel Alito said for an 8-1 majority.

In dissent, Justice Ruth Bader Ginsburg wrote that she feared the ruling in a Kentucky case had handed the police an important new tool.

"The court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases," Ginsburg wrote. "In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."

She said the Fourth Amendment's "core requirement" is that officers have probable cause and a search warrant before they break into a house.

"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?" Ginsburg asked.

An expert on criminal searches agreed, saying the decision would encourage police to undertake "knock and talk" raids.

"I'm surprised the Supreme Court would condone this, that if the police hear suspicious noises inside, they can break in," said John Wesley Hall, a criminal-defense lawyer in Little Rock, Ark. "I'm even more surprised that nearly all of them went along."

The court in the past has insisted that homes are special preserves. As Alito said, the Fourth Amendment "has drawn a firm line at the entrance to the house." One exception to the search-warrant rule involves an emergency, such as screams coming from a house. Police also may pursue a fleeing suspect who enters a residence.

The Kentucky case arose from a mistake. After seeing a drug deal in a parking lot, Lexington police officers rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect.

The Kentucky Supreme Court suppressed the evidence, saying any risk of drugs being destroyed was the result of the decision by police to knock and announce themselves rather than obtain a warrant.

The U.S. Supreme Court reversed that decision Monday, saying police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Alito wrote.

King could have chosen not to respond to the knocking in any fashion, Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

Alito took pains to say the majority was not deciding whether an emergency justifying an exception to the warrant requirement — an "exigent circumstance," in legal jargon — existed. He said the Kentucky Supreme Court "expressed doubt on this issue" and that "any question about whether an exigency actually existed is better addressed" by the state court.

All the U.S. Supreme Court decided, Alito wrote, was when evidence must be suppressed because police had created the exigency. Lower courts had approached that question in five ways.

The standard announced Monday, Alito wrote, had the virtue of simplicity.

"Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment," he wrote, "warrantless entry to prevent the destruction of evidence is reasonable and thus allowed."

But "there is a strong argument," Alito added, that evidence would have to be suppressed when police did more than knock and announce themselves. In general, he wrote, "the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted."

Ginsburg, dissenting, said the majority had taken a wrong turn.

"The urgency must exist, I would rule," she wrote, "when the police come on the scene, not subsequent to their arrival, prompted by their own conduct."

The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether police faced an emergency situation in this case.

The 5 Worst States to Get Busted With Pot

2011-05-16T16:51:00.000-07:00

1. Oklahoma — Lawmakers in the Sooner State made headlines this spring when legislators voted 119 to 20 in favor of House Bill 1798, which enhances the state sentencing guidelines for hash manufacturing to a minimum of two years in jail and a maximum penalty of life in prison. (Mary Fallin, the state’s first-ever female governor, signed the measure into law in April; it takes effect on November 1, 2011.) But longtime Oklahoma observers were hardly surprised at lawmakers’ latest “life for pot” plan. After all, state law already allows judges to hand out life sentences for those convicted of cannabis cultivation or for the sale of a single dime-bag.

2. Texas — On an annual basis, no state arrests and criminally prosecutes more of its citizens for pot than does Texas. Marijuana arrests comprise over half of all annual arrests in the Lone Star State. It is easy to see why. In 2009, more than 97 percent of all Texas marijuana arrests — over 77,000 people — were for possession only. Those convicted face up to 180 days in jail and a $2,000 fine, even upon a first conviction.

3. Florida — According to a 2009 state-by-state analysis by researcher and former NORML Director Jon Gettman, no other state routinely punishes minor marijuana more severely than does the Sunshine State. Under Florida law, marijuana possession of 20 grams or less (about two-thirds of an ounce) is a criminal misdemeanor punishable by up to one-year imprisonment and a $1,000 fine. Marijuana possession over 20 grams, as well as the cultivation of even a single pot plant, are defined by law as felony offenses – punishable by up to five years in prison and a $5,000 fine. In recent years, state lawmakers have revisited the state’s marijuana penalties – in each case electing to enhance Florida’s already toughest-in-the-nation criminal punishments.

4. Louisiana — In Louisiana, multi-decade (or even life) sentences for repeat pot offenders are hardly a rare occurrence. Under Louisiana law, a second pot possession conviction is classified as a felony offense, punishable by up to five years in prison. Three-time offenders face up to 20 years in prison. According to a 2008 expose published in New Orleans City Business online, district attorneys are not hesitant to “target small-time marijuana users, sometimes caught with less than a gram of pot, and threaten them with lengthy prison sentences.”

5. Arizona — Forty years ago virtually every state in the nation defined marijuana possession as a felony offense. Today, only one state, Arizona, treats first-time pot possession in such an archaic and punitive manner. Under Arizona law, even minor marijuana possession offenses may be prosecuted as felony crimes, punishable by up to 18 months in jail and a $150,000 fine. According to Jon Gettman’s 2009 analysis only Florida consistently treats minor marijuana possession cases more severely.

Case Law Update, Week Ending 4-28-11

2011-05-04T12:00:00.000-07:00

Washington State Law

Washington State Supreme Court:

Personal Restraint of Martinez: The Court found that Mr. Martinez’ second PRP was properly before the Court as it did not seek similar relief to his first PRP. The court further found that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon at the time of the robbery he committed, when the evidence showed that Mr. Martinez was found wearing an empty knife sheath and the knife itself was found in the mud yards away from Mr. Martinez, and there was further no evidence in the record that Mr. Martinez had ever reached for the knife, unbuttoned the sheath or removed the knife from the sheath. Likewise, there was no evidence that Mr. Martinez would have used the knife as a deadly weapon. http://www.courts.wa.gov/opinions/pdf/832196.opn.pdf

Personal Restraint of Nichols: In a decision that greatly narrowed its 2007 holding in State v. Jorden, the Court held that in cases where police have an individualized and particularized suspicion leading to a search, a search of motel registry information is permissible and constitutional. The Court differentiated Jorden, a case in which City of Lakewood police practices of trolling local hotels to paw through their registries to see if any wanted criminals were on the premises went a step too far and violated the State constitution. Here, Seattle Police obtained registry information from a local Travel Lodge regarding Mr. Nichols after observing a confidential informant enter the room where Mr. Nichols was later found to be staying and complete a controlled drug buy. Officers learned that Mr. Nichols’ license was suspended and, upon observing him behind the wheel, arrested him. A search incident to arrest revealed drugs and cash. http://www.courts.wa.gov/opinions/pdf/837422.opn.pdf

In a dissent, Justice Fairhurst argued that the lead opinion contravenes the structure of article I, section 7 of the Washington Constitution, undermines its protections, and attempts to circumvent the warrant requirement. The dissent argued that the lead opinion effectively creates an exception to the warrant requirement, that of individualized and particularized suspicion which grants officers “authority of law to search an individual's private affairs for purely investigatory purposes despite a complete lack of need for immediate action.” The exception, the dissent urged, undermines the warrant requirement’s purpose of reducing the risk of erroneous searches by involving a neutral magistrate. Justice Fairhurst concluded that Jorden’s holding that motel registry information is a private affair, combined with the structure of article I, section 7, “compels the conclusion that obtaining Nichols' motel registry information without a warrant violated his constitutional right to hold that information free from unjustified government intrusion.” http://www.courts.wa.gov/opinions/pdf/837422.no1.pdf

In a concurrence, Justice Madsen wrote separately to agree with the conclusion of the lead opinion, for the reasons stated by the Justice in State v. Jorden. http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=837422Co1

Division Two Court of Appeals:

State v. Carter: The Court reversed the trial court’s dismissal of Mr. Carter’s charges for possession of a machine gun. The Court held that the exemption under RCW 9.41.190(2)(b), allowing possession of a machine gun for those exempt from the prohibition against such weapons or licensed to possess such weapons under federal law if such persons are engaged in the production, manufacture, repair, or testing of machine guns, is not an element of the offense but, rather, a defense that Mr. Carter had the burden of establishing. Further, the Court found that the RCW 9.41.190(2)(b)exemption does not allow for private possession of a machine gun unless the defendant shows that such possession is authorized under federal law and that Mr. Carter failed to establish that the RCW 9.41.190(2)(b) exemption applied. http://www.courts.wa.gov/opinions/pdf/39392-1.11.doc.pdf

Division Two Court of Appeals:

State v. Martinez: The Court reversed Mr. Martinez’ conviction and remanded to allow Mr. Martinez to withdraw his guilty plea to the crime of possession of a controlled substance with intent to deliver. The Court found that the crime is an aggravated felony that, when committed by Mr. Martinez, an alien, is a deportable offense. The court further found that Mr. Martinez was not notified of the certain deportation consequences of his plea and was deficient under Strickland and Sandoval for this failure. The fact that deportation was a material factor and Mr. Martinez would not have pleaded guilty had he known of the deportation consequences was sufficient to establish prejudice under Sandoval, despite the fact that Mr. Martinez’ plea was entered prior to the entry of the Sandoval decision. http://www.courts.wa.gov/opinions/pdf/290182.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Sandoval-Gonzalez: The Court found error when the jury at Mr. Sandoval-Gonzalez’ trial on charges of being an alien who reentered the United States after previously being deported was not required to find beyond a reasonable doubt that Mr. Sandoval-Gonzalez was an alien. Instead, the jury was told that “there is a presumption” of his alienage, and the burden of proof was shifted to Mr. Sandoval-Gonzalez to establish that he had obtained American citizenship by having been born to a U.S. citizen father. The Court held that this was prejudicial error, vacated Mr. Sandoval-Gonzalez’ conviction and remanded. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/09-50446.pdf

Miller v. Oregon Board of Parole: The Court extended its decision in Hayward v. Marshall, that only state law can give rise to a liberty interest in parole that is entitled to the protections of the Due Process Clause of the Constitution, to a similar liberty interest in early parole created by an Oregon statute. The Court also held that, following Swarthout v. Cooke, the Oregon Board of Parole and Post-Prison Supervision did not violate Mr. Miller’s due process rights when it denied him that eligibility. The court observed that, as in Cooke, Mr. Miller was afforded access to his records in advance of the hearings, and he was given the opportunity to submit information to the Board and to make a statement during the hearing. And, although the Board’s initial decision was not explained, Mr. Miller was eventually provided with a written statement of the reasons why he was denied early eligibility for parole. After Cooke, the court ruled that that is the beginning and the end of the inquiry into whether he received due process, so we need look no further to affirm the district court’s denial of Miller’s petition.
http://www.ca9.uscourts.gov/datastore/opinions/2011/04/25/07-36086.pdf

United States v. Maier: The Court affirmed Mr. Maier’s sentence of 210 months and a lifetime term of supervised release for receipt/distribution of child pornography. The Court held that the district court correctly relied upon statutory factors to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and that the district court’s sentence was procedurally and substantively reasonable. The Court reasoned that the district court carefully considered the totality of the circumstances in determining Mr. Maier’s sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/27/09-10397.pdf

United States v. Whitlock: The Court found that Rule 32.1 of the Federal Rules of Criminal Procedure, which primarily governs sentencing procedures for probation and supervised release violations, did not speak to the particular question at issue – whether probation officers’ sentencing recommendations following the revocation of supervised release must be disclosed. The Court concluded that Rule 32(e)(3) logically fills in the gap, and therefore post-revocation sentencing recommendations, like their post-conviction brethren, must be disclosed unless the district court directs otherwise. The Court held that the district court complied with the requirements of United States v. Baldrich that it disclose any factual information in the confidential recommendation on which it relied in sentencing, and that Rule 32(e)(3) comports with the Equal Protection Clause, so there was no violation of Mr. Whitlock’s constitutional rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-30124.pdf

Kemp v. Ryan: The Court affirmed the district court’s denial of Mr. Kemp’s habeas corpus petition seeking relief from his state conviction for felony first-degree murder, armed robbery and kidnapping and from his capital sentence. The Court found that Mr. Kemp did not carry his burden of showing that he is entitled to relief on his appeal from the district court’s denial of his habeas petition. Because the petition was filed after the effective date of the AEDPA, the Court noted, relief can only be granted if the state court unreasonably applied clearly established federal law or unreasonably determined the facts. The Court held that Mr. Kemp failed to show that the Arizona Supreme Court acted unreasonably under either of these criteria in rejecting his arguments that admission of his incriminating statements to correctional officers violated his rights under Miranda and Massiah. The Court further held that Mr. Kemp did not show that the district court abused its discretion in denying his request for discovery and an evidentiary hearing because he did not establish “specific facts which, if true, would entitle him to relief.” The Court declined to reach Mr. Kemp’s claim that if his incriminating statements are excluded there is insufficient evidence to support the imposition of the death penalty under Enmund/Tison, because it held that the statements are admissible and that the evidence presented, including the statements, provides a sufficient basis for the imposition of a capital sentence. Finally, the Court found that Mr. Kemp did not show that the trial court’s alleged failure to re-voir dire the jury as to homosexual bias was contrary to, or an unreasonable application of, clearly established Supreme Court precedent. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/08-99030.pdf

United States v. Nosal: The Court reversed the district court’s dismissal of several counts of an indictment charging Mr. Nosal with numerous violations of the Computer Fraud and Abuse Act (“CFAA”). Specifically, Mr. Nosal and his co-conspirators were charged with exceeding their authorized access to their employer’s computer system by obtaining information from the computer system for the purpose of defrauding their employer and helping Mr. Nosal set up a competing business. The Court held that under the applicable statute, an employee accesses a computer in excess of his or her authorization when that access violates the employer’s access restrictions, which may include restrictions on the employee’s use of the computer or of the information contained in that computer. The court found that a previous opinion, LVRC Holdings LLC v. Brekka, did not mandate the conclusion reached by the district court, that an employee does not exceed authorized access to a computer by accessing information unless the employee has no authority to access the information under any circumstances.

In a dissent, Judge Campbell argued that construing “exceeds authorized access” to include “violating an employer’s computer access restrictions — including use restrictions” does not further Congress’s stated purpose in enacting the Computer Fraud and Abuse Act, and in fact renders one of the statute’s provisions unconstitutionally vague. http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf

United States v. Henderson: Mr. Henderson appealed based on the district court’s failure to exercise the discretion accorded it in Kimbrough v. United States to vary from the Sentencing Guidelines when sentencing him on charges of possession of child pornography based on policy disagreements with them and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The court found that it was unclear whether the district judge recognized and exercised his Kimbrough discretion, and reversed and remanded for resentencing. The Court found that the district court judge suggested that Mr. Henderson raise on appeal the argument of whether Kimbrough applied to this case, but also indicated that he was not accepting the argument that he must exercise Kimbrough discretion. For this reason, the Court held it was unable to ascertain whether the district court committed procedural error by failing to appreciate its Kimbrough discretion to vary from the sentencing guidelines on policy grounds, or whether it recognized, but declined to exercise that discretion. The court remanded for resentencing.

In a concurrence, Judge Berzon wrote separately “to emphasize that unjust and sometimes bizarre results will follow if [the sentencing guidelines for possession of child pornography are] applied by district courts without a special awareness of the Guideline’s anomalous history.”

Concurring in the result, Judge Callahan agreed that because the district judge’s ruling on the extent to which he could exercise his discretion in departing from the Guidelines for child pornography was not clear, a remand is appropriate. However, Judge Callahan wrote separately to express disagreement with the majority’s suggestion that the district court is free to disagree with the Guidelines for child pornography on policy grounds without explaining its disagreement. Judge Callahan argued that the Guidelines for child pornography are not similar to the crack cocaine Guideline considered by the Supreme Court in Kimbrough, and therefore disagreed that the Guidelines for possession of child pornography inherently come within the “Kimbrough discretion.” http://www.ca9.uscourts.gov/datastore/opinions/2011/04/29/09-50544.pdf

United States Supreme Court:

Sossamon v. Texas: Mr. Sossamon sued the State of Texas and prison officials, seeking injunctive and monetary relief under the Religious Land Use and Institutionalized Persons Act of 2000 due to prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. In a decision authored by Justice Thomas and joined by Justices Roberts, Scalia, Kennedy, Ginsburg, and Alito, the Court held that States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.

Justice Sotomayor dissented, joined by Justice Breyer, arguing that it is “self-evident” that monetary damages are appropriate relief under the RLUIPA for violations of that act’s substantive provisions, and that the States consent to suit for such violations in accepting federal funds.

Justice Kagan took no part in the consideration or decision of this case. http://www.supremecourt.gov/opinions/10pdf/08-1438.pdf

Rework the vetoed medical-marijuana law

2011-04-30T22:54:00.001-07:00

Rework the vetoed medical-marijuana law

Governor Fails To Lead On Medical Marijuana; Vetoes Bill

2011-04-30T22:52:00.000-07:00

Governor Fails To Lead On Medical Marijuana

Marijuana Prohibition Turns 100 Today. What Is There to Celebrate?

2011-04-30T22:50:00.001-07:00

Marijuana Prohibition Turns 100 Today. What Is There to Celebrate?

Local News | Tape shows evidence of excessive force during '08 arrest in Seattle, judge says | Seattle Times Newspaper

2011-04-22T09:04:00.000-07:00

Local News | Tape shows evidence of excessive force during '08 arrest in Seattle, judge says | Seattle Times Newspaper

Senate sends medical marijuana bill to Gov. Chris Gregoire

2011-04-21T18:08:00.000-07:00

Senate sends medical marijuana bill to Gov. Chris Gregoire

Medical Cannabis bill SB 5073 WA House Ways & Means 2011-03-31

2011-03-31T20:51:00.000-07:00

Criminal Case Law Update, Week Ending 3-11-11

2011-03-18T13:29:00.000-07:00

Washington State Law

Washington State Supreme Court:

State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf

In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf

Division One Court of Appeals:

Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf

Division Two Court of Appeals:

Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke's codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye's defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf

Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State's petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf

State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf

Division Three Court of Appeals:

State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf

State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf

State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.

In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf

United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf

United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf

United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.

In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf

United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf

Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf

United States Supreme Court:

Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.

Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf

Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.

In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf

Criminal Case Law Update, Week Ending 3-4-11

2011-03-11T12:38:00.000-08:00

Washington State Law

Washington State Supreme Court:

State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf

Division One Court of Appeals:

State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf

Division Two Court of Appeals:

Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf

Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf

Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.

In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf

United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf

United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf

United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf

United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf

United States Supreme Court:

Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.

In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”

In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.

In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.

Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf

Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.

In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”

In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.

In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.

Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf

Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf

Police Officer steals Marijuana.

2011-02-12T13:47:00.000-08:00

Washington State Law

2011-02-08T08:55:00.000-08:00

Washington State Supreme Court:

In Re Discipline of Ferguson: The Court upheld a 90 suspension of Sandra Ferguson’s law license, finding that the disciplinary board’s imposition of that suspension in lieu of the 30 days recommended by the hearing officer was reasonable in light of the hearing officer’s findings that Ms. Ferguson appeared ex parte before a superior court judge in a contested matter without notice to opposing counsel, failed to disclose all relevant facts at an ex parte hearing, and obtained relief through misrepresentation and deceit in violation of the Rules of Professional Conduct. The Court reasoned that the enhanced suspension time was warranted in light of aggravating factors in this case. http://www.courts.wa.gov/opinions/pdf/2007198.opn.pdf

In his concurrence/dissent, Justice Alexander agreed with the suspension, but dissented with regard to the length, arguing that there was no justification for the Court’s downward departure from the ABA recommended suspension of 180 days. http://www.courts.wa.gov/opinions/pdf/2007198.ip1.pdf

Division One Court of Appeals:

State v. Mohamoud: The Court held that the deferred disposition statute, RCW 13.40.127, does not authorize the juvenile court to order a post-conviction deferred disposition on its own initiative. The Court concluded that the legislature did not intend to grant a juvenile court this type of authority, and the court in this case therefore lacked authority to order the deferred disposition in this case. In any case, the Court found that the deferred disposition would have been void because the trial court failed to follow all statutory requirements. The Court reversed and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/64958-2.pub.doc.pdf

Division Two Court of Appeals:

State v. Johnson: The Court found that a locomotive meets the definition of a “railway car” for the purposes of the burglary statute, and meets the statutory definition of a “building” for purposes of second degree burglary. Specifically, the Court found that the statutory definition of “building” includes “any…railway car,” a locomotive is therefore a railway car and a building. The Court also found that the trial court did not err in admitting a sales receipt found on Mr. Johnson at the time of his arrest showing that the prior day he had sold 105 pounds of copper wire to Valley Recycling. The court presumed that the trial court admitted the receipt as circumstantial evidence of Mr. Johnson’s motive or intent and instructed the jury on the limits of its use. As such, the Court concluded, the evidence was both relevant and admissible.

In her dissent, Judge Van Deren argued that the definition of “railway car” was ambiguous, as dicta in prior cases suggest that a locomotive is a “railway car,” however the ordinary dictionary definition of “railway car” does not encompass locomotive. Accordingly, the dissent would hold that whether a locomotive falls under the phrase “railway car” is subject to more than one reasonable interpretation and the rule of lenity should apply, with a holding that a locomotive is not a railway car under the burglary statute. Given this definition, there was insufficient evidence to find Mr. Johnson guilty of second degree burglary, and the case should have been dismissed. http://www.courts.wa.gov/opinions/pdf/39607-6.11.doc.pdf

Division Three Court of Appeals:

State v. Weber: The Court agreed with the superior court’s determination that the stop for speeding in this case did not support the district court’s legal conclusion that the stop was pretextual. The Court affirmed the superior court’s action in remanding the case for trial. The Court concluded that under Ladson, both a subjective intent of the officer and the reasonableness of the stop must be considered before finding a pretext and, in this case there was a reasonable stop with no improper motive, and therefore no basis for finding that the traffic stop was pretextual. http://www.courts.wa.gov/opinions/pdf/281922.opn.doc.pdf

In his dissent, Judge Sweeney argued that the superior court applied the wrong standard of review in this case, and improperly weighed the evidence, substituting its own judgment for that of the district court. The dissent argued that the test is not whether the appellate or superior courts would have found a different motive for the stop, but whether there is sufficient evidence, which if believed, would support the district court’s finding on the factual question of motive. The dissent posited that the standard was met in this case and the superior court’s decision should be reversed and the district court’s suppression order affirmed. http://www.courts.wa.gov/opinions/pdf/281922.dis.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

Stanley v. Cullen: Mr. Stanley filed an amended habeas petition in federal court asserting claims arising out of both the guilty and penalty phases of his arson and murder trial, including competency claims. The district court held that a biased juror rendered invalid the verdict of the competency jury and remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Mr. Stanley was competent during his penalty phase trial. The district court denied all of Mr. Stanley’s guilt phase claims and held the remaining penalty phase claims in abeyance. Mr. Stanley appealed, contending that the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contended that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contended that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley’s competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence. The Court found that the district court’s decisions were reasonable, and declined to certify Mr. Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/31/08-99026.pdf

United States v. Morris: The Court found that the government’s single plea offer in this case, in which it agreed not to file an amended information with an enhancement that would increase Mr. Morris’ sentence by ten years in exchange for a guilty plea and cooperation in an upcoming murder and drug dealing trial of a gang leader with whom Mr. Morris was associated, did not offend due process. The Court reversed the district court’s finding to the contrary, in which that court reasoned that the government’s tactics “short-circuited the truth-finding process” by requiring Mr. Morris to forfeit most of his rights from the start of the proceedings. The Court recognized that a give and take is required in the plea bargaining process, but found that this does not mean that the government “must engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid.” The court concluded that “[t]here is nothing fundamentally wrong with the prosecution’s decision to present its best offer up front,” and that the government did not offend due process by extending a take it or leave it plea offer to Mr. Morris. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/02/10-10009.pdf

United States v. Smith: The Court upheld Mr. Smith’s conviction for being a felon in possession of a firearm, upholding the district court’s decision to deny Mr. Smith’s motion to suppress the gun found on his person by a police officer. The Court found that Mr. Smith was not seized by the arresting officer after he crossed the street in front of the officer’s patrol car and the officer activated his siren, pulled to the curb, and ordered Mr. Smith to stand in front of the patrol car. Instead, Mr. Smith turned and ran, and was tackled and handcuffed by the officer. This is the point at which the Court found the seizure occurred, and the Court held that there was probable cause for the seizure at this juncture. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/10-10036.pdf

CASE LAW UPDATE - JANUARY 31, 2011

2011-01-31T16:42:00.000-08:00

Washington State Supreme Court:

State v. Irby: The Court affirmed the Court of Appeals’ decision to reverse Mr. Irby’s convictions for first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. The Court concluded that the trial court violated Mr. Irby’s rights under both the federal and state constitutions to be present at trial by conducting a portion of the jury selection process by e-mail in Mr. Irby’s absence. The Court further found that this error was not harmless. http://www.courts.wa.gov/opinions/pdf/826650.opn.pdf

In her dissent, Chief Justice Madsen, joined by Justices Charles Johnson, James Johnson, and Fairhurst, argued that the majority treats the “routine process” used for excusing several potential jurors as a critical stage of the trial. Instead, the dissent argued, the majority should have recognized that the trial court has broad discretion to excuse jurors for a range of reasons not pertaining to Mr. Irby’s case, and the distinction should have been made between excusing jurors for reasons not pertaining to Mr. Irby’s case and those relevant to his case. Further, the dissent argued that the fact Mr. Irby was not present for discussions between the court and counsel regarding whether to excuse jurors for reasons related to Mr. Irby’s case did not affect his ability to prepare for his defense, as a defendant’s right to be present at jury selection exists only if his presence would substantially relate to his ability to defend himself. Finally, the dissent argued that to the extent any juror was released for reasons related to the circumstances of Mr. Irby's trial, none of these potential jurors sat on Irby's jury. Therefore, if any error occurred in releasing these jurors, it was harmless error. http://www.courts.wa.gov/opinions/pdf/826650.no1.pdf

Division One Court of Appeals:

Personal Restraint of Heidari: The Court granted Mr. Heidari’s PRP, accepting the State’s concession that there was insufficient evidence as a matter of law to support his conviction for child molestation in the second degree and that there was a sentencing error on the conviction for rape of a child in the first degree. The Court declined, however, to grant the State’s request to remand for entry of judgment on the lesser included offense of attempted child molestation, holding that a remand for resentencing on the lesser included crime of attempt is precluded where the jury is not instructed on that crime. http://www.courts.wa.gov/opinions/pdf/63040-7.pub.doc.pdf

Division Three Court of Appeals:

State v. Acevedo: The court affirmed the trial court’s refusal to overturn Mr. Acevedo’s conviction for possession of a stolen motor vehicle, holding that a vehicle does not have to be operable or, indeed complete – this “vehicle” was purchased without a motor or transmission – to satisfy the elements of this crime. However, the Court found that the trial court improperly ordered restitution for the full value of the vehicle in its undamaged condition because that level of restitution appears unrelated to the crime for which Mr. Acevedo was convicted. The Court further held that the prohibition in Mr. Acevedo’s sentence against possession of deadly weapons was not crime related or authorized by statute, and remanded for resentencing and the setting of a modified restitution amount. http://www.courts.wa.gov/opinions/pdf/286339.cor.doc.pdf

Personal Restraint of Benavidez: The Court dismissed Mr. Benavidez’ PRP, finding meritless his contention that the amended information failed to notify him that he faced a firearm enhancement. The Court noted that the information advised Mr. Benavidez that he was charged with a crime and armed with a firearm while committing the crime, and that the information further cited the deadly weapon special verdict statute, all of which placed Mr. Benavidez on notice that he was charged with a deadly weapon enhancement. The court ruled that the judgment and sentence were facially valid, and the petition untimely and frivolous. http://www.courts.wa.gov/opinions/pdf/284433.opn.doc.pdf

State v. Smith: The Court affirmed the trial court’s modification of Mr. Smith’s sentence, finding such modification was appropriate when the sentence had originally included partial confinement, which option had been eliminated due to budget reductions. The Court found that this constituted an extraordinary circumstance that could not have been anticipated at the time of sentencing. The Court reasoned that the sentencing judge made clear that the partial confinement aspect was an important part of the sentence he had imposed, and a fundamental underpinning of the judge’s sentencing decision was changed and his sentencing objective thereby undermined. http://www.courts.wa.gov/opinions/pdf/287696.opn.doc.pdf

Federal Law

United States Supreme Court:

Swarthout v. Cooke: Mr. Cooke was sentenced by a California court to an indeterminate term of seven years to life after he was convicted of attempted first degree murder in 1991. He filed the instant writ of habeas corpus after the parole board determined in November 2002 that he was ineligible for parole based on the “especially cruel and callous manner” of his commitment offense his failure to participate fully in rehabilitative programs; his failure to develop marketable skills; and three incidents of misconduct while in prison. The board further dismissed Mr. Cooke’s favorable psychological report as not credible because it included several inconsistent and erroneous statements. His co-respondent in this petition, Mr. Clay, who had been convicted of first-degree murder in 1978, was in fact approved for parole in 2003, but that decision by the parole board was reversed by the governor. The governor cited the gravity of Mr. Clay’s crime, his extensive criminal history, his failure to participate fully in self-help programs, and his unrealistic plans for employment and housing after being paroled, which increased his chances of recidivism. The Ninth Circuit Court of Appeals reversed both decisions, finding that there was insufficient evidence to support the denial in both cases. In a Per Curiam opinion, the Supreme Court denied certiorari, but reversed the Ninth Circuit, finding that the Court misapplied the law in its holding. The court observed that a federal court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” which was not the case here. The Court further observed that, though Mr. Cook and Mr. Clay were deprived of a liberty interest, the procedures followed by the State were constitutionally sufficient. However, rather than stopping its inquiry at that point, the Ninth Circuit, the Court reasoned, had reviewed the state courts’ decisions on the merits. “The short of the matter,” the Court concluded, “is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”

In her concurrence, Justice Ginsberg pointed out that California only requires “some evidence,” to support a parole denial, unlike other states, which require prisoners to meet specified criteria. The concurrence therefore agreed with the majority decision.
http://www.supremecourt.gov/opinions/10pdf/10-333.pdf

Ninth Circuit Court of Appeals:

United States v Munoz-Camarena: The court withdrew its September 3, 2010 opinion in this case and granted Mr. Munoz-Camarena’s petition for re-hearing in part. Specifically, the Court ordered the district court to re-calculate Mr. Munoz-Camarena’s sentence in light of the intervening United States Supreme Court holding in Carachuri-Rosendo v. Holder, which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. The court found that the district court should have applied a four-level enhancement rather than an eight-level enhancement that was applied for an aggravated felony, as the prior convictions do not constitute aggravated felonies. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/28/09-50088.pdf

United States v. Lichtenberg: The court affirmed Mr. Lichtenberg’s 112-month sentence for wire fraud, money laundering, and making a false statement in connection with a passport application. The Court found that the above-Guidelines sentence properly took into account facts of a different nature than those required for an enhancement under the Guidelines. The court also found that the district court identified a need for a lengthy sentence to prevent Mr. Lichtenberg from profiting from the crime by moving outside the United States to live comfortably off the money he had stolen, much of which had not been recovered. The Court finally found meritless Mr. Lichtenberg’s argument that the sentence was above and beyond that normally imposed for similar crimes. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/09-10191.pdf

United States v. Leyva-Martinez: The Court affirmed Mr. Leyva-Martinez’ 70-month sentence for illegal re-entry after deportation. The Court deemed proper the 16-level sentencing enhancement, finding that his prior conviction for inflicting corporal injury on a spouse or co-habitant is plainly a crime of violence. The Court further ruled that Almendarez-Torres v. United States, which permits enhancement based on the existence of a prior felony, has never been overruled by the Supreme Court, and Mr. Leyva-Martinez’ prior convictions need not be proven beyond a reasonable doubt. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/10-50269.pdf

United States v. Jenkins: The Court upheld Mr. Jenkins’ and co-defendant Mr. Gentry’s convictions on multiple counts of securities fraud, wire fraud, international concealment money laundering, concealment money laundering, transactional money laundering, as well as one count of tax evasion and conspiracy to defraud the United States and commit wire fraud, securities fraud, and mail fraud. The Court found that the statute of limitations had not expired before the indictment was filed, that there was sufficient evidence to support the convictions on all counts, that the jury’s instructions on money laundering were proper, and that the district court did not err at sentencing in calculating the amount of loss and number of victims. The Court further found that Mr. Jenkins’s sentence was reasonable, and that the district court properly denied Mr. Gentry’s motion to sever his trial from Mr. Jenkins’, and that the district court properly denied Mr. Gentry’s motion for additional cross-examination of a government witness. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-10109.pdf

United States v. Carothers: The Court found that neither the Double Jeopardy Clause nor Mr. Carothers’ decision to elect a Jackson instruction on the lesser included offense of simple possession posed a barrier to a retrial of Mr. Carothers for possession with intent to distribute. The district court’s error in the verdict form that did not allow the jury to report its unanimous verdict on simple possession along with its deadlock on intent to distribute in this case was compounded when the court ordered a mistrial on both the greater offense and the lesser included and, when it realized the error, dismissed the indictment concluding that Jackson and Double Jeopardy barred re-trial. The court reversed on the government’s motion and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-50191.pdf

United States v. Gonzalez-Diaz: The Court affirmed Mr. Gonzalez-Diaz’ conviction for being found in the United States, ruling that the fact that Mr. Gonzalez-Diaz entered Canada a day before he was “found” in this country, and was in the company of the authorities upon re-entry did not bar his prosecution for this offense. The Court reasoned that Mr. Gonzalez-Diaz never legally entered Canada, and was in custody the entire time he was on Canadian soil. Therefore, the Court concluded, he remained in the United States until found there on the date of his arrest. Because Mr. Gonzalez-Diaz was not entering the United States from a foreign country, the Court held, the official restraint doctrine does not apply. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-30002.pdf

United States v. Burgum: The Court vacated Mr. Burgum’s 180-month sentence following his guilty plea to two counts of armed bank robbery. The Court found that the district court’s sentence was not improperly based on the statutory maximum and was not substantively unreasonable. However, the Court found that the district court relied on Mr. Burgum’s inability to pay restitution as an aggravating factor in imposing the sentence, an action that constituted plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing.

Judge O’Scannlain dissented, arguing that when viewed in the context of the sentencing as a whole, it was clear that the district court judge upwardly departed from the sentencing guidelines because of the violent nature of the robberies of which Mr. Burgum was convicted, and that the judge’s reference to unlikely restitution “was an incidental observation that did not affect the sentence.” http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-50449.pdf
United States v. Potter: The Court affirmed Mr. Potter’s conviction for possession of a firearm in furtherance of drug trafficking. The Court found that the statute was not unconstitutional on its face or as applied, and does not violate the Second Amendment. In so holding, the Court reasoned that the personal right to bear arms in one’s home extends only to the lawful possession and use of a firearm, not the unlawful use of such a weapon in furtherance of drug trafficking. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/26/09-30266.pdf

2011-01-24T16:59:00.000-08:00

By K.C. Mehaffey
World staff writer
Saturday, January 22, 2011

OKANOGAN — John Novak is in a fight with the law over what he believes is his right to grow medical marijuana for himself and another medical marijuana patient at his remote Okanogan County home.

He’s hoping the battle doesn’t turn out the way it did for the guy in his dad’s hit song, “I fought the law.”

Novak, 45, says he is the son of the late Bobby Fuller, best known for the 1965 top-ten single with the familiar refrain that ends “and the law won.”
But in his case, Novak says, the law is on his side. If a judge doesn’t dismiss the criminal charges against him next week, he thinks a jury will see it his way when his case goes to trial Feb. 1.

Full story at:

Wenatchee World - Medical Marijuana

Case Law Update 1.24.11

2011-01-24T16:50:00.000-08:00

Washington State Supreme Court:

State v. Barber: The court overruled State v. Miller to the extent that decision calls for specific performance of a plea agreement that would bind the court to impose a sentence that is contrary to law; in this case, a plea agreement that failed to include a statutorily mandated term of community custody. The Court limited the remedy of specific performance to the situation in which the State breaches its promise to make a specific charging decision or recommendation to the sentencing court. http://www.courts.wa.gov/opinions/pdf/836400.opn.pdf

State v. Schultz: In a plurality opinion authored by Justice Chambers and joined by Justices Sanders, Stephens, James Johnson and Charles Johnson, the Court overturned Ms. Schultz’ conviction for possession of illegal substances. Here, the State claimed entry was proper under the emergency exception when police had a report of yelling in an apartment and heard only raised voices, including a man saying he needed his space prior to knocking on the door. After contacting Ms. Schultz, who initially denied that there was anyone else in the apartment and then called a male out of his room, police entered the apartment based only on Ms. Schultz’ acquiescence to their entry. The Court held that these facts were insufficient to support entry under the emergency exception. In so doing, the Court made modifications to the test under which the emergency aid exception may be applied. The Court further held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, and further – and more importantly – specifically found that “mere acquiescence to an officer’s entry is not consent and not an exception to our state’s constitutional protection of the privacy of the home.” http://www.courts.wa.gov/opinions/pdf/822387.opn.pdf

In her dissent, Justice Fairhurst, joined by Justices Madsen, Alexander, and Owens, argued that the majority altered the three part test for the finding of entry under the emergency aid exception, and adopted new, unnecessary factors to add to the test. The dissent further argued that under the original three factors, the application of the emergency aid exception should stand and the conviction should have been affirmed. http://www.courts.wa.gov/opinions/pdf/822387.no1.pdf

Disciplinary Proceeding Against J. David Smith: The court held that a rule 10.14(c) of the Rules of Enforcement of Lawyer Conduct (ELC), which provides that a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, does not violate state and federal constitutional requirements. Mr. Smith was disbarred, as recommended by the hearing officer. http://www.courts.wa.gov/opinions/pdf/2007481.opn.pdf

Disciplinary Proceeding Against Paul King: Mr. King, who pled guilty to federal mail fraud, challenged the subsequent disbarment recommendation, arguing that the proceedings against him were unfair, that disciplinary counsel should have been disqualified, that the hearing officer failed to follow hearing rules with regard to settlement of the hearing transcript, and that Mr. King’s guilty plea should not be binding where he was not permitted to enter an Alford plea. The court found Mr. Kings’ disbarment warranted and his arguments against such action meritless. http://www.courts.wa.gov/opinions/pdf/2007619.opn.pdf

Division One Court of Appeals:

State v. Miles: The Court remanded this case for further proceedings, finding that the trial court improperly decided that evidence found in a search warrant for Mr. Miles’ bank records that was related to a complaint filed against Mr. Miles with the Securities Division of the Department of Financial Institutions was suppressible. The Court found that the trial court improperly applied the independent source exception, under which an unlawful search does not invalidate a subsequent search if (1) the issuance of the search warrant is based on untainted, independently obtained information, and (2) the State's decision to seek the warrant is not motivated by the previous unlawful search and seizure. Because there was no dispute that the search warrant application in this case was based on untainted evidence and did not contain any information learned from the illegal search and seizure, it was not clear that the trial court used the correct legal standard in analyzing the independent source exception, and the court did not address the question of whether the State's decision to seek the warrant was motivated by evidence obtained in the previous unlawful search, the Court remanded. http://www.courts.wa.gov/opinions/pdf/61474-6.pub.doc.pdf

State v. Williams: The Court found that Mr. Williams’ rights were not violated by the imposition of an exceptional sentence that did not exceed the statutory maximum when there had been a jury finding that Mr. Williams committed the crime under aggravating circumstances. The Court further found that Mr. Williams additional claims of error were unpersuasive, including a claim that the trial court denied him due process when it did not reinstruct the jury on the “presumption of innocence” during the aggravating circumstances portion of the trial and a claim that the trial court erred in denying his motion for a retrial based on spectator misconduct. http://www.courts.wa.gov/opinions/pdf/63213-2.pub.doc.pdf

State v. Winkle: The Court affirmed Mr. Winkle’s sentence for convictions on two counts of rape of a child in the third degree. The trial court had imposed a term of 60 months, the statutory maximum for this offense, and a term of community custody for earned early release limited to the statutory maximum. The court found that the sentence was in line with recent amendments to the SRA, which prohibits a term of confinement and a term of community custody in excess of the statutory maximum, as the SRA in any event requires that a defendant convicted of a sex offense must be transferred to community custody in lieu of earned early release, and the court specifically mandated that the sentence imposed would not exceed the statutory maximum sentence. http://www.courts.wa.gov/opinions/pdf/64367-3.pub.doc.pdf

State v. Brown: The Court affirmed Mr. Brown’s convictions, finding that the trial court correctly found that multiple no contact order violations based on contact on separate days did not violate double jeopardy, and that the trial court properly declined to give a Petrich instruction because Mr. Brown engaged in a continuing course of conduct. Further, the Court found that no prejudice resulted when the State argued that Mr. Brown’s alibi was not credible, and that Mr. Brown received effective assistance of counsel because his counsel’s performance was not deficient. Finally, the Court found that Mr. Brown’s argument that the State failed to prove underlying criminal conduct fails under Bunker. http://www.courts.wa.gov/opinions/pdf/63607-3.cor.doc.pdf

Detention of Ticeson: The Court affirmed Mr. Ticeson’s sexually violent predator commitment, finding that, as he is not a criminal defendant, Mr. Ticeson has no rights under article 1, section 22 of the Washington Constitution and therefore the trial court’s failure to require a jury unanimity as to whether Mr. Ticeson suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Further, the Court found that the court’s in-chambers conferences dealing with purely legal matters did not violate Mr. Ticeson’s right to an open proceeding. http://www.courts.wa.gov/opinions/pdf/63122-5.pub.doc.pdf

Division Two Court of Appeals:

State v. McKague: The Court upheld Mr. McKague’s convictions for third degree theft and second degree assault, as well as his lifetime sentence as a persistent offender. The Court found that the trial court properly exercised its discretion in declining to accept Mr. McKague’s request to waive a jury, that there was sufficient evidence of substantial bodily harm to support his second degree assault conviction, that the to convict instruction for second degree assault did not create an impermissible presumption that relieved the State of its burden of proof, that he was not denied ineffective assistance of counsel when his attorney withdrew a proposed instruction on an inferior degree offense, and that the fact that a judge rather than a jury found the existence of his prior convictions by a preponderance of the evidence rather than beyond a reasonable doubt did not violate his due process and equal protection rights.

In his partial concurrence and partial dissent, Judge Armstrong disagreed with the lead opinion’s conclusion that the evidence was sufficient to uphold a conviction for second degree assault, arguing that the lead opinion erroneously applied the definition of substantial bodily harm, and that the bruising in this case was did not meet that definition.

In her partial concurrence and partial dissent, Judge Quinn-Brintnall agreed that the trial court properly refused Mr. McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding Mr. McKague guilty of second degree assault, and concurred that Mr. McKague's convictions should be affirmed. However, Judge Quinn-Brintnall argued that Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion's second degree assault sufficiency analysis is unfounded. Further, the concurrence/dissent argued that the lead opinion failed to comply with constitutional principles articulated in Apprendi and Blakely when it held that Mr. McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole. Judge Quinn-Brintnall argued that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.

The lead opinion and both dissents/concurrences may be found at: http://www.courts.wa.gov/opinions/pdf/39087-6.11.doc.pdf

State v. Rice: The Court ruled that RCW 9.94A.835, .836, and .837, which involve special allegations of sexual motivation, predation, and a victim under 15 years of age, respectively, did not violate the separation of powers doctrine, did not improperly involve the trial court in plea bargaining, and did not violate due process or Eighth Amendment rights. Further, the Court held that a sentencing enhancement that mirrored and element in Ms. Rice’s underling crime (that the victim was under 15 years of age) did not violate double jeopardy, and that Ms. Rice’s sentence was not illegal. http://www.courts.wa.gov/opinions/pdf/39600-9.11.doc.pdf

State v. Bluehorse: The Court affirmed Mr. Bluehorse’s conviction for drive-by shooting but reversed his exceptional sentence based on a gang aggravator, finding that the trial court failed to base the sentence on substantial and compelling facts based on the jury’s verdict finding Mr. Bluehorse guilty of drive-by shooting with a gang aggravator. Rather, the court found that the sentence was imposed in an attempt to achieve parity with Mr. Bluehorse’s co-defendant’s standard range sentence for first degree assault based on his offender score, and violated the real facts doctrine. The Court found meritless, however, Mr. Bluehorse’s remaining contentions, that his right to public trial was violated, that the prosecution was vindictive, that his motions for a mistrial should have been granted, that the trial court should not have granted a two-month recess during the trial despite the fact it was agreed to by all parties, that the state erroneously used police reports to refresh witness’ memories, and that the cumulative errors deprived him of a fair trial. http://www.courts.wa.gov/opinions/pdf/38328-4.11.doc.pdf

Division Three Court of Appeals:

State v. Brown: The Court found that Mr. Brown’s attorney’s failure to research and advise him of the pendency of Arizona v. Gant, which Mr. Brown claimed would have required suppression of evidence against him, did not constitute ineffective assistance of counsel. The Court reasoned that to adopt Mr. Brown’s suggested standard, which would have required defense counsel to perform computer research to determine that the opinion was pending and that the lower court’s holding was on point and favorable to his position “would place an unreasonable burden on defense counsel and set a standard for diligence that obliges counsel to raise issues in anticipation of any possible change in the law. The burden on defense counsel would be especially onerous in the plea bargain context, because the consequence of a mistaken prediction could be far more adverse than time and effort spent on a failed argument -- it could be the lost offer of a favorable plea.” http://www.courts.wa.gov/opinions/pdf/284301.opn.doc.pdf

State v. Castro: The court found that the trial court’s decision of pretrial motions on legal matters in chambers with a later statement regarding those decisions in open court with an invitation to counsel to object did not violate Mr. Castro’s constitutional right to a public trial. The Court found that the matters decided did not involve any fact finding required to be open to the public, and the trial court was therefore not required to engage in a Bone-Club analysis prior to deciding the matters in chambers. http://www.courts.wa.gov/opinions/pdf/288854.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Liu: The Court affirmed Mr. Liu’s convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. The Court found that Mr. Liu’s speedy trial rights were not violated, as the speedy trial clock restarted when his wife was added to the case as a co-defendant. The Court further found that the district court did not err in failing to give a multiple conspiracy jury instruction because there was no potential for spillover guilt in this case, and likewise did not error when it failed to give a specific unanimity jury instruction as there was no proof the omission affected his substantial rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/21/09-10136.pdf

United States v. Begay: The Court found that there was sufficient evidence to establish premeditation in support of Mr. Begay’s convictions for first degree murder, and upheld the two convictions. Specifically, the Court found that evidence that Mr. Begay had stopped near an unknown vehicle on the highway, gotten out and walked to the vehicle, where he spoke briefly to the occupants, and then returned to his truck and retrieved a gun, which he used to shoot both occupants of the car, gave him time to formulate a purpose and plan to kill the occupants of the other vehicle.

Judge Reinhardt, joined by Judge Berzon, dissented, arguing that the minimal facts set forth by the majority in its opinion failed to establish premeditation, as there was no evidence that Mr. Began reflected upon, planned, or otherwise premeditated the killing. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/12/07-10487.pdf

United States v. Basher: The Court upheld Mr. Basher’s conviction for illegal discharge of a firearm on park lands. The court found that the officers’ interaction with Mr. Basher in this case was a valid Terry encounter, and that Mr. Basher’s Fifth Amendment rights were not violated. The Court further held that Mr. Basher’s Fourth Amendment rights were not violated, as he consented to the retrieval of the shotgun from his tent. Finally, the Court found that the area of a campsite outside of a tent in these circumstances is not curtilage. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/09-30311.pdf

Miller v. Oregon Board of Parole: The Court held that Oregon’s aggravated murder review statute creates a federally-protected liberty interest in early parole eligibility, and the Due Process Clause requires that the Board of Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. In this case, the Court found that the Board’s denial of relief at the conclusion of Mr. Miller’s murder review hearing did not violate his due process rights and was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, the Court found that Mr. Miller was not entitled to habeas corpus relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/18/07-36086.pdf

United States v. Doss: Mr. Doss appealed his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The Court found that a conviction for witness tampering is proper when the defendant was found to have encouraged a witness to withhold testimony when that witness possessed a legal right or privilege not to testify. However, the Court vacated the sentence and remanded as to several counts, directing the district court to determine whether the victim in Mr. Doss’ prior sex offense conviction was a minor by a reasonable doubt standard instead of the modified categorical approach used by the district court. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/07-50334.pdf

United States v. Lindsey: The Court held that the proper remedy for a good faith, erroneous denial of a defendant’s peremptory challenge is not automatic reversal under United States v. Annigoni, but a review for plan error under Rivera v. Illinois, which the Court found effectively overruled Annigoni. The Court found in this case, where defense counsel did not object when the Court stated that it had no further peremptory challenges and did not attempt to exercise its final challenge, there was no plain error and Mr. Lindsey’s conviction should stand.

In a concurrence, Judge Pregerson wrote separately agreeing with the plain error standard of review but arguing that the case could be resolved without deciding whether Rivera overruled Annigoni, as Annigoni is inapposite to this case, where there was a good faith error, as opposed to Annigoni, where the defendant was actively prevented by the district court from exercising a peremptory challenge. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/09-50459.pdf

Perez v. Cate: The Court held that the fee caps under The Prison Litigation Reform Act (PLRA) of 150% of the “rate established” by the Criminal Justice Act “for payment of court-appointed counsel” also applies to separately billed paralegal fees under the holding in Missouri v. Jenkins.
http://www.ca9.uscourts.gov/datastore/opinions/2011/01/13/09-17185.pdf

Lopez v. Ryan: The court affirmed the district court’s denial of Mr. Lopez’ petition for a writ of habeas corpus challenging his capital sentence for first degree murder. The Court found that Mr. Lopez was given an individualized sentencing determination at which the sentencing court considered all mitigating evidence and found no leniency was warranted. The Court further found that Mr. Lopez received effective assistance of counsel, as there was no showing of error in counsel’s failure to provide the expert with eyewitness testimony caused him prejudice. Finally, the Court found no merit in Mr. Lopez’ Brady claim, reasoning that a note that was not disclosed by the government was not “material” for Brady purposes, as it included legal opinions and facts cumulative of information available in previously release police reports. Further, there was no evidence that the failure to disclose the note caused prejudice to Mr. Lopez. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/08-99021.pdf

United States Supreme Court:

Harrington v. Richter: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Harrington’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court. The Court found that this section applied to Mr. Richter’s petition despite the fact that the State Supreme Court issued only a summary denial, as Mr. Richter did not show that there was no reasonable basis for the state court to deny relief, nor did he demonstrate that there was a more likely explanation for the state court’s decision. The Court reasoned that the Ninth Circuit in holding otherwise “failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition,” and that the Ninth Circuit’s opinion showed an “improper understanding of §2254(d)’s unreasonableness standard and operation in the context of a Strickland claim.” The Court ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. The court found that the Ninth Circuit erred under this standard in finding Mr. Richter’s counsel’s performance deficient, as the complained of actions could have been undertaken as part of a reasonable trial strategy. The Court further found that the Ninth Circuit erred in finding prejudice to Mr. Richter, as there was no substantial likelihood of acquittal had counsel acted differently.

In her concurrence, Justice Ginsburg agreed with the judgment on the basis the any lapse by counsel was not sufficiently serious as to deprive Mr. Richter of a fair trial. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-587.pdf

Premo v. Moore: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Moore’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d) as the claim had been previously adjudicated on the merits in state court. The Court found that the State Court decision was not an unreasonable application of either part of the Strickland rule. The Court found that Mr. Moore’s counsel acted reasonably and that, even had he acted differently, there was no basis to believe that the outcome of Mr. Moore’s trial would have been different.

In a concurrence, Justice Ginsburg agreed with the Court that Mr. Moore had not shown he would have acted differently had he been better informed by counsel. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-658.pdf

Medical Pot Debated - Olympia, WA

2011-01-21T12:17:00.000-08:00

JORDAN SCHRADER; Staff writer
Published: 01/21/1112:05 am
http://www.thenewstribune.com/2011/01/21/1510907/medical-pot-debated.html

The voter-approved medical-marijuana law has so many pitfalls for patients, even a couple of pillars of the Tacoma community see something to fear in it.

“Picture this: Local minister and deputy mayor arrested for having medical marijuana in their possession,” Lauren Walker said as she testified to state lawmakers Thursday on a proposed overhaul of the law.

Walker was describing her husband, the Rev. Marcus Walker, and herself, a Tacoma city councilwoman. Drawn into the strange world of medicinal cannabis just two weeks ago as part of her husband’s cancer treatment, she’s speaking up in Olympia in support of more protections from arrest for legitimate patients.

A proposal that would create those protections, and legalize the marijuana dispensaries that have cropped up in what advocates see as a gray area in the law, has broad bipartisan support in the state Senate.

But it could stumble on opposition that has been quietly building among key law enforcement officials. The Washington Association of Prosecuting Attorneys put forward an alternative proposal Thursday that seeks to avoid what Pierce County Prosecutor Mark Lindquist calls “the Starbucks approach” to the proliferation of medicinal marijuana.

REGULATING MARIJUANA

Under the 1998 ballot measure, patients can grow marijuana for their own use or designate a provider to grow on their behalf, as long as providers only serve one patient at a time.

Entrepreneurs have interpreted that to mean they can serve one patient after another in retail-style dispensaries.

Enforcement of the law has been uneven. The Tacoma City Council in October decided to suspend the city’s attempt to shut down eight dispensaries until the Legislature could clarify the law.

The council is looking to a bill authored by Sen. Jeanne Kohl-Welles of Seattle, which would license dispensaries and producers. Alternatively, up to 25 patients could band together and grow up to 99 plants in a so-called collective garden.

Today, patients have a legal defense against prosecution, but advocates say that hasn’t stopped police from harassing and arresting legitimate patients. The bill would head off arrests in a couple of ways. It would set up a voluntary registry of patients that law enforcement could access. It would give arrest protection to patients with a valid order from a medical provider and up to 24 ounces of marijuana or 15 plants.

Patients would also get protections from discrimination in employment and housing.

Kohl-Welles said bringing regulation to medical marijuana would end an underground system that has encouraged criminal activity.

“We’ve had shootouts, we’ve had armed robbery, burglary. We can’t have that going on. We need a regulated system,” she said.

PROSECUTORS, SHERIFFS OPPOSE

Lindquist agreed changes are needed but said the proposal takes the wrong approach.

“The bill as a whole seems to be more focused on creating a medical-marijuana industry than focused on providing medical marijuana,” he said. “We want to keep the focus on providing medical marijuana, because that’s what the voters passed.”

Prosecutors joined in the call for a registry and are seeking more limited forms of collective growing and arrest protection.

But they don’t want dispensaries legalized. In their proposal, a designated provider would be banned from serving multiple patients in the same 15-day period, a rule that is also in Kohl-Welles’ bill but would not apply to dispensaries.

The Washington Association of Sheriffs and Police Chiefs supports the prosecutors’ proposal, Lindquist said. Association director Don Pierce didn’t return phone calls Thursday.

The opposition from law enforcement groups could be a major hurdle. But the bill also has strong support, at least from the health committee where it sits now.

Chairwoman Karen Keiser, D-Kent, and a majority of the committee have signed on as co-sponsors. It’s backed by Democrats such as Kohl-Welles and Republicans such as Sen. Jerome Delvin of Richland.

The committee heard a long parade of mostly supportive testimony from the public, led off by Walker, who painted a picture of medical marijuana users as normal folks mostly unfamiliar with marijuana.

“It was very minimal,” she said of her previous pot exposure. “A joint was passed around a party when I was around 16, and then my Marxist relatives in northern Vermont offered marijuana cookies to my husband and me in the early 1980s. My husband threw up for three hours afterward.”

But after her husband’s treatment for melanoma left him with pain and complete loss of appetite, she said, they decided they would try anything. After a pickup at a downtown dispensary, the couple went to a family reunion and asked the young people in the room to help him figure out how to smoke it.

“His 87-year-old mother, desperate for her son’s survival, was cheering him on while examining the pipe to figure out if the seniors in her pottery class might be able to make one for him.”

Not all patients and providers are on board. Medical marijuana activist Steve Sarich wore a button to the hearing that said “No Patient Registry. We are NOT sex offenders.”

He’s worried law enforcement will use the registry to target, rather than avoid, patients.

Jordan Schrader: 360-786-1826 jordan.schrader@thenewstribune.com blog.thenewstribune.com/politics
http://www.thenewstribune.com/2011/01/21/1510907/medical-pot-debated.html

Case Law Updates Dec. 27, 2010-Jan. 7, 2011

2011-01-18T22:37:00.000-08:00

WASHINGTON STATE SUPREME COURT

Bail Jump: Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of a the time of the failure to appear.
State v. Council, ___ Wn.2d___ (No 83654-0)(Dec. 30, 2010)

Facts: Mr. Council was charged with felony harassment when he failed to appear for a pre-trial hearing. He was arrested 4 months later, and the State added a charges of bail jumping and malicious harassment. The bail jumping charge was severed for trial. He was found not guilty of felony harassment and malicious harassment but convicted of misdemeanor harassment. A second jury subsequently found him guilty of bail jumping. The trial court classified the bail jumping as a class C felony because he failed to appear at a time when he was charged with a felony. On appeal he argued the bail jump statute was ambiguous.

Held: The statue is not ambiguous. Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of.

Assault 3/Sufficiency: The floor is not an instrument or thing likely to produce bodily harm for purpose of the assault 3 statute when not used proactively to injure the victim.

State v. Marohl___ Wn.2d___ (No 83570-5)(Dec. 30, 2010)

Facts: Mr. Marohl was charged with Assault 2 and in the alternative Assault 3, stemming from a fight in a bar. Mr. Marohl put another patron, Mr. Peterson, in a choke hold, and either took him to the ground or Mr. Peterson fell. Mr. Peterson lost consciousness and his prosthetic arm broke off at the elbow. The prosecutor argued that the floor was “an instrument or thing likely to produce bodily harm” for purpose of the assault 3 statute. Mr. Marohl was convicted of assault 3 and appealed arguing that there was insufficient evidence that he used an instrument or a thing when he caused bodily harm.

Held: Where a defendant causes a victim to impact the floor, but does not proactively use the floor to injure the victim, the defendant has not used the floor like a weapon. The floor, under the circumstances of this case, is not included within the meaning of “instrument or thing” because it was not likely to produce harm and was not used like a weapon.

Death Penalty: Solitary Confinement at the IMU does not violate ex post facto. Good behavior by death row inmate does not create a liberty interest in a special housing unit or the attendant privileges.

In Re PRP of Gentry, ___ Wn.2d___ (No 84039-3)(Dec. 30, 2010)

Facts: Mr. Gentry was convicted of aggravated murder and sentenced to death in 1991. He resides at the Intensive Management Unit (IMU) of the Washington State Penitentiary. He challenged his conditions of confinement, claiming that solitary confinement violates ex post facto prohibitions. Death row inmates spend the first 12 months at the IMU. With good behavior, they were able to earn privileges and move to the special housing unit (SHU). Mr. Gentry had been housed in the SHU, enjoying additional privileges. In December 2008, due to state budget constraints, he was transferred back to the IMU where he was confined to his cell 23 hours a day and denied the privileges he had earned the SHU.

Held: Solitary confinement was contemplated by state law at the time of Mr. Gentry’s crime, thus there is no ex post facto violation. DOC has been given broad discretion over conditions of inmate housing. Participation in a good behavior program does not create a liberty interest in special housing and related privileges.

WASHINGTON STATE COURT OF APPEALS

Sex crimes: Statements to sexual deviancy therapist are not privileged when they concern allegations of child sexual abuse.

State v. Hyder, ___Wn.App. ___ (No 37267-3)(Jan. 4, 2011)

Facts: Mr. Hyder was charged with multiple counts of child rape and child molestation involving two of his daughters. Prior to charging, he sought treatment from a sexual deviancy therapist. After Mr. Hyder was charged and prior to trial the attorneys agreed to review the CPS records, rather than have the court review them in camera. In the review of the records, they discovered a report by his therapist to CPS containing Mr. Hyder’s admissions regarding the sexual abuse. Police served a search warrant on the therapist for all the treatment records. The therapist and her forensic evaluator were called as witnesses at Mr. Hyder’s trial. Mr. Hyder’s moved in limine to prohibit their testimony, but was denied. On appeal, he asserted that the State’s use of a search warrant was improper since there are other procedures for seeking medical records which require notice to a patient in advance. Mr. Hyder also asserted that the records should have been reviewed in camera by the court, rather than the attorneys.

Held: The trial court did not abuse its discretion when it permitted the therapist to testify concerning Hyder’s admissions of abuse. The mandatory reporting laws trump the therapist patient privilege. The State’s use of a search warrant to obtain the medical records was not an abuse of process. The appellate court noted that although the attorneys agreed to review the records, they should have been viewed in camera by the court. The error was invited error and as such the issue was waived by Mr. Hyder.

Wildlife Trafficking: RCW 77.15.260 does not permit value aggregation of pieces of contraband.

State v. Yon, ___Wn.App. ___ (No 28774-2)(Dec 28, 2010)

Facts: Mr. Yon was charged with and convicted of wildlife trafficking in the first degree for purchasing four black bear gall bladders for $200.00 each. RCW 77.15.260 defines first degree wildlife trafficking as a C felony, and requires the value of the trafficked goods to exceed $250.00. Wildlife trafficking in the second degree is a misdemeanor. RCW 77.15.030 says that trafficking of big game, each big game animal should be charged as a separate offense. Mr. Yon argued it was improper to aggregate the value of the bear gall bladders to satisfy the elements of first degree wildlife trafficking.

Held: The statute intends for each piece of contraband to be charged separately and does not permit aggregation of value of pieces of contraband.

RALJ Appeal: The Superior Court exceeds the scope of review when it considers an issue not raised at the trial level.

State v. Rosalez___Wn.App. ___ (No 28253-8)(Dec 28, 2010)

Facts: Mr. Rosalez was charged and convicted of DUI. At his trial, he moved to suppress the breath test, based on the irregularities and false certifications in the crime lab during the tenure of Ann Marie Gordon. He argued due process violation, improper foundation, and challenged the evidence under ER 702 and 703. Mr. Rosalez did not expressly move to suppress the breath test under ER 403.

The trial court admitted the breath test, holding that the crime lab irregularities went to the weight of the evidence and not the admissibility. He was convicted at trial and appealed to Superior Court. The Superior Court reversed, holding that the breath test should have been suppressed, based on a due process violation of the right to a fair trial and on the failure to follow the protocols of RCW 46.61.506. The Superior Court also found that the trial court erred when it did not exercise discretion under ER 403, by failing to weigh the prejudicial value of the misconduct against the probative value of the breath test. The appellate court limited review in this case to whether the Superior Court exceeded the scope of review by considering the ER 403 issue.

Held: The Superior Court exceeded the scope of review when it held that the trial court erred for failure to exercise discretion ER 403, which was not argued at the trial level.

CASE LAW UPDATE - Week ending 12-24-10

2010-12-27T14:47:00.000-08:00

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

State v. Wilson: The Court held that anticipatory offenses included in an offender score calculation under RCW 9.94A.525(4) must themselves be felonies in order to be calculated as such as part of the offender score calculation. Here, the trial court had erroneously included as a felony what was actually a conviction for a gross misdemeanor. In upholding the decision, the Court of Appeals reasoned that the anticipatory offense would have been a felony if completed. The Supreme Court found this to be in error and held that such a mistake is a legal mistake and therefore the petitioner is entitled to be resentenced under the correct offender score. http://www.courts.wa.gov/opinions/pdf/837970.opn.pdf

Division One Court of Appeals:

State v. Burns: The Court held that, when the State failed to hold a restitution hearing within 180 days of sentencing as required by the statute to determine the amount of restitution to be paid by Mr. Burns as a result of certain uncharged crimes, the trial court did not have statutory authority to determine or modify the amount of restitution after the expiration of the 180 day time period allowed for restitution to be set under RCW 9.94A.753(1). The Court reversed the restitution order. http://www.courts.wa.gov/opinions/pdf/63768-1.pub.doc.pdf

Division Two Court of Appeals:

In Re Detention of Alsteen: The Court affirmed a jury verdict finding that Mr. Alsteen is a sexually violent predator who should be civilly committed under the "Sexually Violent Predator Act," (SVPA) chapter 71.09 RCW. The Court held that the jury instructions were an accurate statement of the law and permitted the parties to argue their respective theories of the case to the jury, and did not prejudice Mr. Alsteen by improperly focusing on past crimes to which he had stipulated. Because the instructional challenge failed, the Court affirmed Mr. Alsteen’s commitment as a sexually violent predator. http://www.courts.wa.gov/opinions/pdf/37140-5.10.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

Pulido v. Hedgpeth: The Court found that erroneous jury instructions in Mr. Pulido’s state murder trial were not prejudicial as a matter of federal Constitutional law. The Court disagreed with Mr. Pulido’s contentions that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The Court found that despite a typographical error in the special circumstance instruction, which used the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. However, the court concluded that the instruction did not have substantial or injurious effect or influence in determining the jury’s verdict.

Judge Thomas dissented, arguing that the law was explained improperly in this case, and it could not be reasonably concluded that the error did not substantially and injuriously affect the verdict. The dissent reasoned that the instructions allowed for a conviction for felony-murder and a finding of special circumstance robbery-murder even if Mr. Pulido became a knowing participant only after the robbery and shooting were completed. The record left the dissent with “grave doubt” as to whether the erroneous instructions had a substantial and injurious effect on the jury’s verdict. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/21/05-15916.pdf

United States v. Alvarez-Perez: The Court found that Mr. Alvarez-Perez was prosecuted for being a deported alien found in the United States in violation of the Speedy Trial Act (STA). The Court found that Mr. Alvarez-Perez’ trial was held outside the permitted 70-day period. However, because the government exceeded speedy trial by just two days, Mr. Alvarez-Perez was accused of a serious offense, there was no showing of governmental bad faith, and no showing that Mr. Alvarez-Perez would be prejudiced by a re-trial, the Court dismissed the action without prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/22/09-50334.pdf

Washington Case Law Update Dec. 20, 2010

2010-12-20T12:00:00.000-08:00

The following criminal cases of note were decided this week:

Washington State Law

Division One Court of Appeals:

State v. Deer: The Court dismissed without prejudice due to the trial court’s error in allowing the State to amend the information in this case after the State had rested its case. The original information in this case had alleged that Ms. Deer had had “sexual contact” with a minor rather than “sexual intercourse,” thus alleging the elements of child molestation rather than child rape. The Court further found that the trial court erred in rejecting a proposed jury instruction which would have required the State to prove beyond a reasonable doubt that Ms. Deer had committed a volitional act, and instead instructed the jury that Ms. Deer had the burden of proving her defense, "that the child had intercourse with the defendant without the knowledge or consent of the defendant" by a preponderance of the evidence. In so doing, the Court ruled, the trial court relieved the State of its burden of providing the actus reas of the crime beyond a reasonable doubt. http://www.courts.wa.gov/opinions/pdf/63737-1.pub.doc.pdf

Division Three Court of Appeals:

State v. Stark: The Court reversed Ms. Stark’s convictions for first degree premeditated murder and conspiracy to commit first degree murder in the shooting death of her estranged husband, from whom she had endured years of abuse before finally escaping the marriage. The Court found that the trial court erred in giving an aggressor instruction, thus eliminating her defense of self-defense under the circumstances of this case that showed that Ms. Stark was hiding in the kitchen when Mr. Stark came over, and that he had charged toward her threatening to kill her when he was served by another person with a restraining order against him, and that Ms. Stark only shot him when he made a move toward a knife on the counter. The Court disagreed with the State’s contention that the restraining order was sufficient provocation for an aggressor instruction, finding that case law has established that spoken words are insufficient, and therefore written words would likewise not be sufficient. The Court further found that the to-convict instruction for the alleged conspiracy in this case failed to name the specific conspirators as alleged in the information, a discrepancy that must be addressed on remand. However, the court found that there were sufficient facts for a new trial, both on the murder and the conspiracy counts. http://www.courts.wa.gov/opinions/pdf/281418.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Newhoff: The Court upheld Mr. Newhoff’s conviction for felon in possession of a firearm, finding that there was a reasonable inference from the testimony showing that Mr. Newhoff was the burglar who was attempting to sell the firearm that he was in fact the person who found and stole it. As there was no clear error in the district court’s finding of fact in this regard, the Court affirmed the conviction. In so doing, the Court rejected Mr. Newhoff’s arguments that there was no eyewitness testimony demonstrating he took the pistol during the burglary, finding that the circumstantial evidence was sufficient. The Court also found that, though the district court’s failure to give an admonition to the jury that they were not to place undue weight on the officer’s testimony after it was read back to them during deliberations at the close of the trial was plain error; it did not affect Mr. Newhoff’s substantial rights and did not warrant reversal. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/16/09-30143.pdf

Roberts v. Marshall: The Court found that the district court did not abuse its discretion in denying Mr. Roberts an evidentiary hearing to determine whether his asserted mental incompetence warranted equitable tolling of the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996. The Court noted that the district court had access to extensive medical records that indicated Mr. Roberts’ relevant mental functions were either “good” or “within normal limits” during the time period for which he sought tolling of the statute of limitations, and that the district court’s conclusion that Mr. Roberts’ mental incompetency was not the cause of his untimeliness was proper, particularly considering that Mr. Roberts managed to file several petitions for post-conviction relief in state court presenting identical arguments to those presented in the federal court during the time for which Roberts seeks equitable tolling. The court found that Mr. Roberts did not carry his burden of establishing that he is entitled to equitable tolling, and his federal petition was therefore barred by AEDPA’s statute of limitations. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/13/08-55901.pdf

Washington State Law

2010-11-23T16:41:00.000-08:00

Washington State Supreme Court:

In Re Personal Restraint of Francis: The Court held that there was a double jeopardy violation when Mr. Francis pled guilty to felony murder, first degree attempted robbery, and second degree assault, all arising from the same string of conduct. The Court reasoned that the State expressly relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes, and so convictions on both charges violate double jeopardy protections. In response to the State’s argument that Mr. Francis waived his double jeopardy challenge by pleading guilty, the Court referenced its decision in State v. Knight, where the Court had concluded that a double jeopardy violation was the entry of multiple convictions for the same offense, not the guilty pleas themselves, and a defendant could challenge the court's entry of any convictions that violate double jeopardy. http://www.courts.wa.gov/opinions/pdf/826196.opn.pdf

In her concurrence, Justice Madsen wrote separately to express her concern that the three part test set forth by the majority does not follow legislative intent and establishes a freestanding test that rests upon a misunderstanding of settled law. The concurrence also expressed a concern that the majority discussed determining double jeopardy based on the offenses as charged, rather than on the offenses as charged and proved, which is the true state of the law. http://www.courts.wa.gov/opinions/pdf/826196.co1.pdf

State v. Hirschfelder: The Court held that former RCW 9A.44.093(1)(b), criminalizes sexual intercourse between a school employee and any registered student age 16 or older. The court further held that the statute is neither unconstitutionally vague nor violative of Mr. Hirschfelder’s equal protection rights. The Court reasoned that the statute unambiguously defines “minor” as a registered student and thus includes students up to the age of 21, and is therefore not vague. The Court further held that there was a rational basis for the prohibited conduct, and therefore Mr. Hirschfelder’s discrimination claim that the Court characterized as an equal protection claim failed. http://www.courts.wa.gov/opinions/pdf/827443.opn.pdf

In his dissent, Justice Charles Johnson, joined by Justices Sanders, Owens, and Chambers, argued that the majority ignored an affirmative defense in the statute that allowed a person charged with sexual misconduct to rebut the charge with proof that the alleged victim was 18 years of age. The dissent further argued that the majority appeared to disregard the fact that a statutory interpretation limiting an affirmative defense is significantly different from a statutory interpretation limiting the reach of a criminal statute; an application that is more consistent with the general rule of interpretation that the majority relies upon. The dissent argued that the majority’s conclusion is inconsistent with the statutory scheme taken as a whole, and does not make sense. http://www.courts.wa.gov/opinions/pdf/827443.no1.pdf

In Re Personal Restraint of Adolph: The Court held that Mr. Adolph’s PRP was not procedurally barred; however, they found that there was sufficient evidence to support Mr. Adolph’s prior DUI conviction when that conviction was supported by a certified copy of Mr. Adolph’s DOL abstract and a copy of a defendant’s case history from DISCIS. Therefore, the Court held that the resulting two year sentence enhancement in the instant matter was proper, and denied Mr. Adolph’s PRP. http://www.courts.wa.gov/opinions/pdf/828687.opn.pdf

In his dissent, Justice Sanders argued that the evidence produced by the State to prove Mr. Adolph’s prior DU I was not comparable to a certified copy of the judgment and sentence, and was therefore insufficient to prove the conviction. http://www.courts.wa.gov/opinions/pdf/828687.no1.pdf

Division Two Court of Appeals:

State v. Corbett: Mr. Corbett appealed his conviction on four counts of first degree child rape, arguing that(1) the trial court improperly limited his cross-examination of a witness, (2) sufficient evidence does not support three of his convictions, (3) the jury instructions failed to protect his rights to be free from double jeopardy and to receive unanimous jury verdicts, (4) the prosecutor committed misconduct during closing arguments, and (5) the sentencing court imposed an unlawful prohibition on his contact with all minors, including his own biological children. The Court affirmed, concluding that Mr. Corbett did not provide sufficient arguments regarding the alleged erroneous limitations on his cross-examination of a witness, sufficient evidence supports his convictions, the jury instructions were proper, the prosecutor did not commit misconduct, and the sentencing condition prohibiting contact with all minor children, including Mr. Corbett’s own children, is “a valid crime-related prohibition that does not unduly burden his fundamental parenting rights.” http://www.courts.wa.gov/opinions/pdf/39147-3.10.doc.pdf

State v. Barnes: The court ruled that a search incident to arrest in this case was permissible when the arrest was for the crime of felony harassment and there was a gun case in plain view in the car. The Court distinguished this case from Patton and Valdez on the basis of the evidence in plain view as well as the fact that, in Patton, the defendant was not a driver or recent occupant of the car, he was secured in a patrol car at the time of the search, and there was no evidence of the crime of arrest or contraband in the car. Further, the State did not assert that there was probable cause for the search. Thus, the Court interpreted the Patton holding as a finding that the search was unconstitutional due to a lack of nexus between the arrestee, the crime of arrest, and the vehicle. Here, Mr. Barnes owned the car, was preparing to drive away at the time of his arrest, and there was probable cause to believe that there was relevant evidence in the vehicle. Therefore, the Court held that the search was constitutional.

In her dissent, Judge Van Deren argued that the evidence found in Mr. Barnes’ vehicle should have been suppressed because the officers were required to obtain a search warrant under Valdez prior to seizing evidence from the vehicle. Neither Gant nor Valdez mention the open view exception to the necessity to obtain a search warrant, the dissent observed, thus calling into question whether this is a valid exception to the warrant requirement for a search conducted after a driver is stopped and removed from his vehicle. Further, the dissent noted that the gun itself was not in open view in Mr. Barnes’ vehicle, and disagreed that the gun box alone was sufficient to trigger the open view exception. http://www.courts.wa.gov/opinions/pdf/39627-1.10.doc.pdf

Division Three Court of Appeals:

State v. Valdez: The Court held that the fact that a stolen laptop computer did not work was not exculpatory evidence, and the State’s failure to retain the computer or computer-related records did not violate Mr. Valdez’ due process rights. Further, the Court concluded that the evidence of Mr. Valdez’ culpability, independent of this evidence, was overwhelming, and affirmed his conviction. http://www.courts.wa.gov/opinions/pdf/282953.opn.doc.pdf

State v. Naillieux: The Court found that there was no error in the trial court’s failure to give a unanimity instruction when none was requested and further no error as to the admission of opinions on whether a tank was approved by DOT. The Court upheld several convictions relating to the manufacture of methamphetamines, but concluded that the State failed to properly allege the elements of eluding a police vehicle and reversed that conviction. http://www.courts.wa.gov/opinions/pdf/283101.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Todd: The Court affirmed Mr. Todd’s convictions for three counts of sex trafficking and one count of conspiracy to commit sex trafficking, finding sufficient evidence to uphold the convictions when Mr. Todd knew that force, fraud, or coercion was to be employed to cause his victims to engage in commercial sex transactions. The Court ruled that the knowledge of future action in the statute does not require knowledge in the sense of certainty as to a future act; rather it requires that the defendant was aware of an established modus operandi that would in the future cause a person to engage in prostitution.

Judge Smith wrote a separate concurrence to explain why he agreed with the panel decision.
http://www.ca9.uscourts.gov/datastore/opinions/2010/11/15/08-30360.pdf

United States v. Spangle: Calling meritless Mr. Spangle’s arguments that he was deprived of his Sixth Amendment right to represent himself, that the district court judge should have recused himself, and that the sentence imposed was unreasonable, the Court affirmed Mr. Spangle’s twenty-four month term of imprisonment imposed upon the revocation of his supervised release after he absconded from that release, withdrew cash from a bank account, bought a gun, and was attempting to locate his former probation officer. http://www.ca9.uscourts.gov/datastore/opinions/2010/11/19/09-50508.pdf

United States v. Anderson: The court overturned the district court’s dismissal of Mr. Anderson’s indictment, finding that he could be charged with the crime of being a felon in possession of a firearm when the two predicate felony convictions each resulted from a plea of nolo contendere in a California state court, as the State of California treats a plea of nolo contendere as equivalent to a guilty plea. http://www.ca9.uscourts.gov/datastore/opinions/2010/11/16/09-50559.pdf

United States Supreme Court:
Abbott v. United States: In an opinion authored by Justice Ginsburg and joined by all justices except Justice Kagan, who took no part in the consideration or decision of this case, the Court held that a defendant is subject to the highest mandatory minimum specified for his conduct when sentenced under the Gun Control Act, unless another provision of law directed to conduct proscribed by that act imposes an even greater mandatory minimum. The Court agreed with the government that the “except” clause, added in 1998, which provides for imposition of a minimum five year term as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [the Gun Control Act itself] or by any other provision of law,” is triggered only when another provision commands a longer term for conduct violating the Gun Control Act. The Court disagreed with the defendants’ assertion that the clause was triggered when a mandatory minimum sentence was imposed for any crime, not solely those within the Gun Control Act. http://www.supremecourt.gov/opinions/10pdf/09-479.pdf