Wednesday, January 27, 2010

The Legal Universe At Your Fingertips, For Free!

The end of the workday. You lock up your shop, trundle off to the local attorney watering hole, and almost instantly find yourself embroiled in a friendly, yet frenzied, argument over whether case X said Y or Z. Factions form. A wager ensues. The next round depends on who's right. But how to settle it?

Soon, you'll no longer need to adjourn to the nearest law library, spectators in tow, to leaf through bound reporters. Instead, you'll be able to whip out your iPhone and enlist the aid of your Fastcase app. As Robert Ambrogi reports,

The app is not yet available in Apple's App Store, but Fastcase granted me an exclusive first look at a pre-release version of the app. I have a full review and a half-dozen screen captures at my LawSites blog.

The short version of my review is this: I was impressed. The app is easy to use and produces lightning-fast results. Use it to search cases from all federal courts and the courts of all 50 states. Search using natural language or Boolean queries or by citation. Documents are displayed in a crisp, readable, size-adjustable font. You can save documents and revisit recent searches.

You will not find every feature on the app that you would expect in a browser-based research tool. For example, you cannot print documents or e-mail them directly from the app. (You can, however, copy a document and paste it into an e-mail.) Still, for legal research on the go, at any time, and for zero cost, this is a must-have for any lawyer with an iPhone.

Sounds like it might even be useful for things other than settling bar bets. And the icing on the case: "[N]ot only is the app free, but so it the research."


Monday, January 25, 2010

Melendez-Diaz Remains Safe; Court Vacates and Remands VA Case That Could Have Undermined the Recent Ruling

Last June, only one day after handing down its Confrontation Clause ruling in Melendez-Diaz v. Massachusetts, the Supreme Court granted cert in Briscoe v. Virginia on a question that Melendez-Diaz appeared to have answered. That development naturally prompted speculation that the Court might already be looking to modify, if not overrule, Melendez-Diaz, given the vigorousness of the dissent and the at-the-time impending change in the Court's lineup.

Well, Briscoe was argued just a couple of weeks ago, and we've already got a decision: the Court vacated and remanded for reconsideration in light of Melendez-Diaz. Why didn't the Court just GVR the case in the first place, rather than have full briefing and oral argument? Minds ponder.


Friday, January 22, 2010

Court May Not Impose Special Assessment When Revoking Supervised Release, Nor Reimpose Unpaid Assement Ordered More Than Five Years Ago

United States v. Pineda, No. 08-41301 (5th Cir. Jan. 22, 2010) (per curiam) (Jones, Smith, Elrod)

This opinion is so brief and to the point, you might as well read the whole thing. Here 'tis:

This appeal concerns a $100 assessment.

In 2001, Jose Carlos Pineda pled guilty to illegal reentry after deportation and was sentenced to seventy months of imprisonment and three years of supervised release. Pursuant to 18 U.S.C. § 3013, he was also ordered to pay a $100 special assessment, the proceeds of which would be deposited in the Crime Victims Fund. After serving his sentence of imprisonment, Pineda was deported to Mexico in 2005. He did not pay the assessment.

In 2008, seven years after the 2001 judgment, Pineda was found illegally present in this country again, in violation of federal law and his supervised release terms. Pineda’s supervised release was revoked, and in a written order, the district court reimposed the unpaid special assessment.

On appeal, Pineda argues that this act was ultra vires. The government agrees that the district court exceeded its authority, regardless whether it sought to reinstate the previous unpaid assessment or to impose a new assessment. Section 3013(c) states that “The obligation to pay an assessment ceases five years after the date of the judgment.” Neither § 3013 nor 18 U.S.C. § 3583, which concerns supervised release, sanctions the imposition of a § 3013 assessment for revocation of a term of supervised release. The district court therefore lacked authority to impose or reimpose a special assessment.

Accordingly, we VACATE in part and REMAND for amendment of the judgment consistent with this opinion.

So there you have it.

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Thursday, January 21, 2010

"FRE & the Intertron" or "How to Borrow Mr. Peabody's WABAC Machine Without Getting Taken for a Ride"

Ever wondered how to get a web page admitted into evidence at trial? Ever tried and failed, only to be left sobbing uncontrollably? Then this article from is for you: Authenticating Web Pages as Evidence, by M. Anderson Berry and David Kiernan. A taste, to whet your evidentiary appetite:
Although many courts view internet evidence as "voodoo information," with the proper support, authentication should be overcome; overcoming a hearsay objection may be the real challenge. To authenticate a screen shot, the proponent of a screen shot should try to obtain testimony through affidavit, requests for admission, deposition or live testimony from the websites' sponsor or web master. At a minimum, the proponent must obtain from the individual who took the screen shot testimony stating that the image accurately reflects the content of the website and the image of the page on the computer at which the screen shot was made. The best practice would be to draft a declaration immediately after the individual obtains the screen shot. If the evidence is from the opposing party's website, the litigant should try to authenticate at the party's deposition or through a request for admission. And the parties are always free to stipulate to authentication of any documents, including screen shots. Finally, requesting judicial notice should be considered, depending, of course, on the jurisdiction.

Read the whole thing, where you'll learn that there really is a Wayback Machine.

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Thursday, January 14, 2010

New Report on Operation Streamline

Many of you are aware of, and even in the trenches of, Operation Streamline, an ostensibly* zero-tolerance policy of prosecuting every person caught entering the United States illegally in certain areas along the U.S.-Mexico border. You're probably also already aware that the effort has overwhelmed courts in the border districts in which it's been implemented, and that "due process" and "Operation Streamline" don't exactly belong in the same sentence together (unless accompanied by words like "lack of," "absence of," "violation," and such). Nevertheless, you'll probably still find interesting and illuminating "Assembly Line Justice: A Review of Operation Streamline," a report by Joanna Lydgate of the Warren Institute at UC Berkeley Law School. From the executive summary:
The current administration is committed to combating the drug and weapon trafficking and human smuggling at the root of violence along the U.S.-Mexico border. But a Bush-era immigration enforcement program called Operation Streamline threatens to undermine that effort. Operation Streamline requires the federal criminal prosecution and imprisonment of all unlawful border crossers. The program, which mainly targets migrant workers with no criminal history, has caused skyrocketing caseloads in many federal district courts along the border. This Warren Institute study demonstrates that Operation Streamline diverts crucial law enforcement resources away from fighting violent crime along the border, fails to effectively reduce undocumented immigration, and violates the U.S. Constitution.

The report is based on a number of sources, including "numerous in-person and telephone interviews with judges, U.S. attorneys, defense attorneys, Border Patrol representatives, and immigration lawyers involved in Operation Streamline’s implementation."

*I say "ostenstibly" because, as the report notes, not everyone caught crossing the border illegally is actually prosecuted:
No Operation Streamline jurisdiction actually prosecutes exactly 100% of border apprehensions. The Border Patrol, as a matter of policy, does not refer for prosecution juveniles, parents traveling with minor children, certain persons with health conditions, and others who require prompt return to their country of origin for humanitarian reasons.

Wednesday, January 06, 2010

Office of Defender Services Announces Litigation Support Available to Defenders and CJA Attorneys

Got a case where the discovery comprises mountains of documents and oceans of electrons? Then you just might benefit from the litigation support services offered by the Office of Defender Services. "What's litigation support," you say? As the spiffy new National Litigation Support page at the ODS website explains,
The essential goal of litigation support is to organize, analyze, and present case materials through computer systems. In federal criminal defense cases, there are three primary ways that litigation support is used by Federal Defender Office (FDO)staff and Criminal Justice Act (CJA) panel attorneys. One is in conducting electronic courtroom presentations. Another is management and analysis of paper documents and their electronic equivalents. The third is the identification, collection, preservation, processing, review, analysis and production of electronically stored information (ESI).

It's apparently all the rage in the world of civil litigation, and quickly becoming a must-have resource in federal criminal defense practice.

So head on over to the NLS page—might as well bookmark it while you're at it—and check out a helpful glossary of common litigation support terms, an initial discovery assessment checklist, recommended e-discovery practices for FPD and CJA attorneys, contact info for the NLS team, and a guide to obtaining litigation support services and software in the CJA system.

State Felon-In-Possession Offense is Aggravated Felony, Despite Lack of Interstate Commerce Element

Nieto Hernandez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009) (King, Davis, Haynes)

In short:
Nieto argues that the BIA erred in finding that his firearms conviction under [Texas Penal Code] § 46.04(a) was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(E)(ii), which defines “aggravated felony” as including an offense “described in” 18 U.S.C. § 922(g)(1). Nieto argues that his firearms conviction was not an offense described in 18 U.S.C. § 922(g)(1) because TPC § 46.04(a) does not contain an interstate commerce element. We hold that state felon-in-possession offenses, such as TPC § 46.04(a), need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. § 922(g)(1).

In long:

Section 1101(a)(43)’s “penultimate sentence” supports the BIA’s interpretation that jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are not necessary for an offense to be an “aggravated felony” as “described in” § 922(g)(1). In its “penultimate sentence,” § 1101(a)(43) states that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law.” Section 1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of whether the offense falls within the jurisdiction of the states or the federal government. Because § 922(g)(1)’s interstate commerce element is simply an element that ensures federal jurisdiction, finding that such an element is necessary for a state offense to be one that is “described in” § 922(g)(1) would undermine Congress’s evident intent that jurisdiction be disregarded in applying this definition of “aggravated felony.”

The text of § 1101(a)(43) also shows that Congress intended more than a negligible number of state firearm offenses to be encompassed within § 1101(a)(43)(E)(ii)’s definition of “aggravated felony,” and “interpreting the jurisdictional element of § 922(g) as essential for a state offense to qualify as an aggravated felony would” undermine that intent. Section 1101(a)(43)’s “penultimate sentence” shows that “Congress clearly intended state crimes to serve as predicate offenses for aggravated felonies,” and the fact that Congress “used the looser standard ‘described in’ for [§ 1101(a)(43)(E)], rather than the more precise phrase ‘defined in’ used elsewhere in [§1101(a)(43), demonstrates] that Congress ‘wanted more than a negligible number of state [firearms] offenses to count as aggravated felonies.’” Interpreting § 922(g)(1)’s interstate commerce element “as essential for a state offense to qualify as an aggravated felony” would violate Congress’s intent to include more than a “negligible number” of state offenses under § 1101(a)(43)(E)(ii), “because state firearms[statutes] would ‘rarely, if ever’ [contain an interstate commerce element and convictions under such statutes would rarely, if ever] specify whether the commerce element was met.”

(cites omitted). Because the elements of the Texas FIP offense are identical to the federal FIP offense, sans interstate commerce, the Texas offense is an aggravated felony.

Indicidentally, in addition to relying on cases from other circuits, the opinion adopts the reasoning of an earlier unpublished Fifth Circuit decision that confronted the issue in the criminal context: United States v. Garza, 250 F. App'x 67, No. 06-20922 (5th Cir. 2007) (per curiam).

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Tuesday, January 05, 2010

Leaked DOJ Memos Shed Light on Discovery Practices!

OK, "leaked" is perhaps a loaded and inaccurate—and yet, entertaining—way of describing this post from the DOJ's Justice blog announcing the release of memos providing guidance to prosecutors on discovery practices:

Last year, the Department of Justice convened a working group to explore the Department’s policies, practices, and training related to criminal case management and discovery. The group is made up of senior prosecutors from throughout the Department and from United States’ Attorney Offices, law enforcement representatives, and information technology professionals.

Today, in response to recommendations from this group, the Deputy Attorney General issued three memoranda regarding criminal discovery practices including a memorandum to all prosecutors containing guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases.

The three memos, should you care to read them, are:

Links via Sentencing Law & Policy.

UPDATE: Over at the White Collar Crime Prof Blog, Ellen Podgor is critical of the memos.

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