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!