Friday, October 17, 2014

AUSAs Will Not Ask for Waiver in Plea Agreement of Ineffective Assistance of Counsel Claims

Attorney General Eric Holder announced a new policy that "the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel."  Deputy Attorney General James Cole authored the memo instructing assistant U.S. attorneys to follow this new policy.  Prior to this policy, "35 of the department's 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel."

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Wednesday, October 15, 2014

Driver on Cross-Country Trip Did Not Have Authority to Consent to Search Passengers’ Luggage in Trunk

The panel affirms suppression of drugs found during a traffic stop in Louisiana.  The car with a California license plate was occupied by three people on a cross-country trip from California to Miami.  Out of the hearing of the other two occupants, the officers asked Iraheta for consent to search the car, and he consented.  Based on this consent, the officers searched the luggage in the truck and found drugs in one of the bags.
Typically, consent to search a vehicle applies to any unlocked containers within it.  However, “[t]he sole fact that luggage is located in a car’s trunk is insufficient to show joint control over those items.”  “Iraheta clearly did not have actual authority to consent to the search of multiple pieces of luggage in the trunk of a vehicle occupied by him and two passengers.”  The officers were on notice of this because the car was occupied by three people on a cross-country roadtrip and there were multiple unmarked bags in the trunk. 
While the defendants did not object to the search or assert ownership of the bags, the panel found this not to be determinative, particularly since the other defendants did not hear Iraheta consent and were not informed about it.  Furthermore, the defendants had standing to challenge the search because they did not abandon the bag prior to the search.

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Tuesday, October 14, 2014

Certificate of Service for Anders Brief Must Specify that Non-English Speaking Defendant Was Informed of Brief and Rights in Language He Understands

Upon receiving a certificate of service for an Anders brief that just noted that a hard copy of the brief would be served on Moreno-Torres, a defendant who did not speak English according to the record, the Fifth Circuit asked for an amicus brief regarding what it should do to ensure that Moreno-Torres’s due process rights are protected.  The amicus recommended that the court direct counsel to file an amended certificate of service indicating that counsel communicated to Moreno-Torres, in a language Moreno-Torres understands, both the substance of the Anders brief and his rights pursuant to Anders, including the right to file a pro se response to the Anders brief.

Counsel then filed an affidavit stating that he communicated the substance of the brief and Moreno-Torres’s rights under Anders to Moreno-Torres via telephone through an interpreter.  Counsel also filed an affidavit by the interpreter attesting to the communication.

The panel “commend[s] these supplemental clarifications confirming that Moreno-Torres received due process” and concurs with counsel that the appeal presents no nonfrivolous issue for appellate review. 

So, be sure to file an adequate certificate of service that explains that the client received adequate notice of the substance of the Anders brief and his rights under Anders in a language he understands!


Tuesday, September 30, 2014

Search & Seizure Update from Oregon Federal Public Defender

The Oregon Federal Public Defender issued its latest version of Developments of Search and Seizure Law.  Read more about it on the Ninth Circuit Blog.


Monday, September 22, 2014

Conditional Release from Insanity Civil Commitment Revoked Because Refused to Follow Group Home Rules

First, the background to this case concerning civil commitment pursuant to 18 U.S.C. § 4243.  Washington was found not guilty by reason of insanity at a bench trial in 2009 for the charged offense of robbery by force and violence (a threat to stab the teller with a non-existent knife in exchange for $2,711).  The district court committed him to a mental health facility for evaluation and treatment.  In 2012, the Bureau of Prisons certified that Washington had recovered from his mental disease or defect.  The district court held a hearing in April 2012 and conditionally released Washington “based on its finding, by clear and convincing evidence, that his release under a regimen of care and treatment would not pose a substantial risk of bodily injury to another person or serious damage to the property of another.”  One of the conditions of Washington’s release was that he reside at a group home, and this condition was an express component of the FMC Butner release plan.

In July 2013, the probation office filed a petition for a warrant for Washington’s arrest alleging that he violated the condition of residing at the group home.  Testimony at the revocation hearing established that Washington refused to sign a commitment to follow the group home’s rules, knowing that his refusal would result in an eviction notice.  One letter written by the group home’s program director that was admitted into evidence indicated that she “supported Washington’s exploration of less-restrictive housing options.”  Another letter indicated that Washington was becoming more aggressive to others, telling them not to report his breaking of house rules.

The probation officer testified that Washington was in compliance with his medicines, completed his GED, was enrolled in community college, was not mentally unstable, and had not been involved in any physical assaults or criminal charges while on conditional release.  The probation officer also testified, however, that she believed Washington tried to physically intimidate her at one point and that—while she could recommend a transitional home if an appropriate facility could be found—Washington could not be safely maintained in the community because he was not willing to follow the rules at any facility.

Based on this evidence, would you find that Washington “failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, and that his continued release will create a substantial risk of bodily injury to another person or serious damage to the property of another”?  See § 4243(g).

Well, the district court did, and the panel affirms “[b]ecause the doctors who crafted Washington’s release plan included residence in a group home as an express element, and because the district court’s substantial-risk finding was not clearly erroneous[.]”  The panel tries to curb what could “appear to lower the bar for re-commitment proceedings insofar as . . . earlier precedents generally have addressed individuals who refused to follow their doctors’ advice” by emphasizing that “every substantial-risk assessment must turn on the unique factual circumstances of each case rather than on an attempt to compare one individual to another.” 

Still, a record that simply reflects that Washington “was not getting along well with the people around him” without any professional medical opinion as to any risk posed by Washington’s release seems a little skim for a judicial “infer[ence] that his increasingly verbal aggressiveness was a sign of dangerousness, or even potential illness, rather than a sign of recovery and attendant resurgence of his desire for autonomy.”  Given district judges’ “awesome responsibility to protect the public and to strike the difficult balance with individual liberty,” however, the panel does not disturb the district judge’s order.

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Wednesday, September 17, 2014

No Realistic Possibility that Texas Possession With Intent to Distribute Was Not an Aggravated Felony or § 2L1.2 DTO

The panel acknowledges that a defendant can be convicted under the Texas possession with intent to distribute (“PWID”) statute, Texas Health and Safety Code section 481.112(a), for conduct that would not qualify as a federal drug trafficking offense (“DTO”).  In other words, Texas PWID is broader than a federal DTO.  Texas PWID includes possession with intent to dispense, which includes administering a controlled substance in the presence of a practitioner.  This is different than the administering encompassed by the federal DTO definition of dispensing, which applies only to the administration of a controlled substance pursuant to a practitioner’s lawful order.  See 21 U.S.C. § 802(10).
Even though Texas PWID does not have as an element the administration of a controlled substance pursuant to a practitioner’s lawful order, the panel applies the modified categorical approach to narrow Teran-Salas’ offense to possession of more than four grams of cocaine with intent to deliver.  (The panel does not explain how this is consistent with Descamps.) 
Applying a “common-sense approach,” the panel holds that, “based on the elements of his conviction, Teran-Salas does not establish a realistic probability that Texas would prosecute his crime under an ‘administering’ theory in a way that does not also constitute either ‘dispensing’ or ‘distributing’ under the federal sentencing guidelines.”  Instead, the panel believes Teran-Salas only establishes “a theoretical possibility that the Texas statute criminalizes conduct that would not qualify as a [DTO, since] there is not a realistic probability that Teran-Salas was prosecuted for engaging in medical care or research that involved administering cocaine in amounts greater than four grams.”
The panel affirms the 16-level enhancement and also favorably cites unpublished decisions that made similar decisions with regard to an Illinois drug trafficking statute (United States v. Ruiz Sanchez, No. 12-40199, 2014 WL 2925157, at *1 (5th Cir. June 30, 2014) (per curiam) (unpublished)) and a Washington statute (United States v. Villeda-Mejia, 559 F. App’x 387, 389 (5th Cir. 2014) (per curiam).

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Monday, September 15, 2014

Use-of-Computer Enhancement in Sex Trafficking Case Correct; Disregard Application Note 4 as Inconsistent with § 2G1.3(b)(3)(B)

Pringler was convicted at trial of aiding and abetting sex trafficking of a minor in violation of 18 U.S.C. § 1591(a).  The panel affirmed the conviction, finding the evidence was sufficient (he took the money the minor earned from prostitution, paid for hotel rooms where she met johns, bought the laptop she used to advertise, and drove her to appointments) and that his counsel was not ineffective by failing to move for acquittal at the close of the Government’s case.

With regard to sentencing, Pringler challenges the application of a 2-level increase to his base offense level pursuant to U.S.S.G. § 2G1.3(b)(3), which provides:

If the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2 levels.

The Commentary to the Sentencing Guideline says that § 2G1.3(b)(3) “is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor” or the minor’s guardian.  § 2G1.3 cmt. n.4. 

Pringler never used a computer to communicate with the minor or her guardian.  So, the panel acknowledges that, if it applies Note 4 of the Guideline Commentary, Pringler would not get the enhancement.  The panel rejects the Government’s argument that Note 4 would be satisfied here because when a pimp communicates with a third party via computer to solicit/advertise sex with a minor, that third party might think the pimp has custody or control over the minor.  Under that scenario, the panel believes the third party could merit the enhancement under Note 4, but not the pimp.

Thus, the panel must decide whether it can avoid giving effect to Note 4 because “it is inconsistent with, or a plainly erroneous reading” of the Guideline.  This is a question of first impression in the Fifth Circuit, and the subject of a circuit split.  The Fourth and Eleventh Circuits have found Note 4 inapplicable and applied the enhancement based on the plain language of the Guideline. The Third and Seventh Circuits have applied Note 4 with different results: in the Third, the enhancement applied despite Note 4’s language because of the third-party argument outlined (and rejected) above; in the Seventh, the enhancement did not apply.

The panel sides with the Fourth and Eleventh Circuits because “under § 1591, there is no factual scenario for which an individual could receive the computer use enhancement, were [the panel] to apply application note 4.”  Applying Note 4, § 2G1.3(b)(3)(B) would only apply to convictions under 18 U.S.C. § 2422(b) for knowingly persuading, inducing, enticing, or coercing a minor to engage in prostitution.  This narrow application of § 2G1.3(b)(3)(B) leads the panel to conclude that Note 4 “can’t mean what it says.”  The panel also analyzes the drafting history of § 2G1.3(b)(3) and concludes that Note 4’s reference to subsection (3) in general—both (3)(A) and (3)(B)—was a drafting error since, prior to 2004, that language only applied to the equivalent of subsection (3)(A), not (3)(B).

In sum, “we hold that the commentary in application note 4 is ‘inconsistent with’ Guideline § 2G1.3(b)(3)(B), and we therefore follow the plain language of the Guideline alone.”  Under the plain language, the 2-level enhancement was correctly applied to Pringler since he bought the computer, showed his partner how to use the webcam, knew the partner and the minor were using the webcam to record encounters with customers, and knew of his partner’s use of the computer to advertise the minor’s services.

The panel also affirms the 2-level enhancement for undue influence of a minor under § 2G1.3(b)(2)(B).  Pringler argues that the minor voluntarily engaged in prostitution, so the undue-influence enhancement should not apply. Since the minor testified about her fear of leaving Pringler, however, and there was evidence that Pringler used the physical abuse of his partner and sexual relations with the minor as control mechanisms, the panel upholds the undue-influence application.

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