Congress Expansion Over Federal Inmates in Local Jail is Constitutional

Congress may make it a crime for federal inmates to commit sexual assaults while being held in state or local facilities.

 

United States v. Mujahid, 2015 BL 276994, 9th Cir., No. 11-30276

    The Ninth Circuit Court of Appeals ruled that the 2006 expansion of federal jurisdiction to cover state or local facilities housing federal prisoners falls within Congress's power. The expansion does not usurp state authority, and is within Congress's power to enact laws that are "necessary and proper" to ensure that federal prisoners are incarcerated in an orderly and safe manner.

    The necessary and proper clause allows Congress to enact laws that are rationally related to the implementation of its enumerated powers, the court ruled. The court determined that the expansion of jurisdictional reach of 18 U.S.C. §§ 2241 and 2244 to include sex offenses occurring "in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General," indicating that this is a modest addition to a long history of regulation in this area.

    The court continued, "[a]lthough the state courts already criminalize this type of conduct, Congress didn't overreach merely by implementing a system that is "concurrent and complementary."

    “Congress has long been involved in legislating the terms of federal imprisonment,” and this extension is reasonably adapted to Congress's power to act as a “responsible federal custodian,” the court said.
 
http://www.bloomberglaw.com/public/document/United_States_v_Mujahid_No_1130276_2015_BL_276994_9th_Cir_Aug_27_

Registration Deadlines for SORNA Clarified.

The concepts of being required to register, and failing to register, are separate within the Sex Offender Registration and Notification Act.

 

United States v. Gundy, 2015 BL 295714, 2d Cir., No. 13-3679-cr, 9/14/15

    The defendant was in prison when the sex offender federal registration requirements were deemed retroactive. The U.S. Court of Appeals for the Second Circuit held that he violated the law by traveling interstate even though it occurred while he was still in custody and before he had finished serving his sentence. 

    In 2005 the defendant had been convicted of a sex offense in Maryland. This conviction violated the terms of his federal supervised release, so he was transferred to a federal facility in Pennsylvania in 2011, and in 2012, to a halfway house in the Bronx, N.Y. The government indicted him for his failure to register as a sex offender and then traveling interstate. Their argument remarked that the SORNA requirements had been made retroactive in 2008.

    The defendant claimed that he did not have to "initially register" until he had completed the sentence of imprisonment.

    The court found that the defendant conflated the statute's deadlines for registering initially with the section of the statute that establishes mandatory registration conditions. The court stated that the defendant's  argument did not give enough credence to the fact that 18 U.S.C. §2250(a) treats being required to register and failing to register "as separate and distinct elements of the criminal offense."

    The court did not determine whether his travel falls outside of Section 2250 because he remained in federal custody the entire time. They indicated that the district court had not ruled on that point.

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Gundy_No_133679cr_2015_BL_295714_2d_Cir_Sept_14_2

Only One Party Needs to Consent to Telephone Taps in Connecticut.

As long as one party to a conversation gives consent, the Connecticut Constitution does not require police to obtain a warrant before recording phone calls.

 

State v. Skok, 2015 BL 289964, Conn., No. SC 19415, 9/15/15

     The Connecticut Supreme Court indicated that all federal courts and an "overwhelming majority" of state courts follow the one-party-consent exception to the warrant requirement. The reasoning of these courts is that a person using a phone to further criminal activity does not have control over who the other person shares the conversation with, or allows to listen in.

     The court here also indicated that the defendant's claim of reasonable expectation of privacy was undermined because she repeatedly reminded the other party to make sure that family members would not overhear the conversations.

http://www2.bloomberglaw.com/public/desktop/document/State_v_Skok_No_SC_19415_2015_BL_289964_Conn_Sept_15_2015_Court_O

Forced Departure Deemed 'Seizure' Due to Rough Handling.

When an officer roughly grabs a person, an order to depart becomes a Fourth Amendment seizure.

 

Salmon v. Blesser, 2015 BL 292438, 2d Cir., No. 14-1993-cv, 9/10/15

    The Second Circuit Court of Appeals said that, though the use of physical force to restrain someone and control their movements may or may not be reasonable under the circumstances, it still constitutes a seizure. Circuit precedent indicates that an order to leave, by itself, is not a seizure. The precedent even indicates that if the person is escorted by an officer as they leave, gives gentle physical guidance, or bars reentry, it is not a seizure.

    However, in this lawsuit the officer grabbed the plaintiff by the collar and twisted his arm behind his back. The court ruled that this was "intentionally restraining and controlling" the plaintiff's movements, and was elevated to the level of a Fourth Amendment seizure.

http://www2.bloomberglaw.com/public/desktop/document/Salmon_v_Blesser_No_141993cv_2015_BL_292438_2d_Cir_Sept_10_2015_C

Stop Justified When Wide Truck Crossed Fog Line Twice

Crossing the fog line twice, even in a wide truck, is enough reasonably suspicion to justify pulling it over.

 

United States v. Diaz, 2015 BL 289363, 2d Cir., No. 14-2505, 9/8/15

     The Second Circuit Court of Appeals overturned the district judge's suppression order even though they agreed that many things could reasonably be the cause for a driver's failure to stay in the lane perfectly. The court stated that "a momentary but reasonable loss of attention because of the appearance of an insect in the cab, or a sudden loud sound or flash of light" could cause a momentary crossing over the fog line.

     The court concluded, however, that the test is not whether the driver was actually careless or violated a traffic law, but whether an objectively reasonable police officer could have formed a reasonable suspicion that a violation occurred. Here, the court said, the officer's suspicion that a violation had occurred was reasonable because the truck crossed the fog line twice.

http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Diaz_No_142505_2015_BL_289363_2d_Cir_Sept_08_2015

Can Appeal "Not Guilty Due to Insanity" Verdict.

Even though the verdict absolved the defendant of criminal responsibility he has the right to appeal the finding.

 

Commonwealth v. Bruneau, Mass. No. SJC-11820, 8/27/15

Unlike an acquittal, the special verdict given in this case finds that he commited the criminal act, but makes him ineligible for civil comittment. The Massachusetts Supreme Judicial Court ruled that the defendant has a right to appeal as a person who is "aggrieved by a judgment." This aggrievment is based on the harsh consequences that flow from a verdict of "not guilty by reason of insanity."

http://www2.bloomberglaw.com/public/desktop/document/Commonwealth_v_Bruneau_No_SJC11820_2015_BL_275264_Mass_Aug_27_201

Broken Pistol Not A "Concealed Deadly Weapon"

The court used a "common-sense reality check" to state that a broken pistol is not a deadly weapon.

 

In re J.T., Ohio, No. 2014-0449, Sept. 10, 2015

The Ohio Supreme Court rejected the state's claim that the broken firearm, being carried in the waistband, counted as a deadly weapon because it could be used as a bludgeon, like a club or nightstick. The court stated that it "was no more of a deadly weapon than is a laptop computer or a briefcase, yet attorneys are not routinely arrested for carrying concealed weapons as they enter our courthouses."

http://www2.bloomberglaw.com/public/desktop/document/In_re_JT_2015Ohio3654_Ohio_Sept_10_2015_Court_Opinion

Strict Enforcement of Promise to Drop Charges

A defendant is entitled to specific performance of the state's promise to drop a charge even though the deal was given through a proxy.

 

State v. King, N.M., No. 34.411, Sept. 10, 2015

     The defendant said he would produce a murder weapon in exchange for the state agreeing to drop an evidence-tampering charge. The state must uphold that deal even though it was communicated "by proxy" through a detective, and seemed only to indicate that the prosecutor would discuss a dismissal.

     The court did not accept a "literal, finely-parsed" reading of the exchange which might have suggested that the prosecutor only promised to "talk dismissal." The court said that would not have been a fair reading of the exchange, indicating that it makes no sense that the defendant would deliver the weapon to intite a dialogue about dismissing the charges, especially because he had proposed the deal in the first place.

http://www2.bloomberglaw.com/public/desktop/document/STATE_OF_NEW_MEXICO_PlaintiffAppellee_v_DONOVAN_KING_DefendantApp

Proper Exclusion of Evidence of Juror Misconduct

There was no abuse of discretion when the trial court refused to look into alleged misbehavior of a juror because the defendant found the information by violating local rules of post-trial contact.

 

United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015).

    The rule here is similar to many that prohibit contact with jurors. Middle District of Florida Rule 5.01(d) states that neither an attorney, nor a party may directly or indirectly try to interview a juror after trial unless that person first obtains the court's permission to do so.

    Four months after his conviction, one of the co-defendants violated the no-contact rule by telephoning a juror and having that juror e-mail his attorney about the jury deliberations. That e-mail described the use of the internet to "look[] up things."

   All of the co-defendants cited this as juror misconduct in a motion for a new trial, however, the sanction for violating the no-contact rule is exclusion. The 11th Circuit Court of Appeals ruled that the trial court was correct in denying motion for a new trial, indicating that the misconduct involved was not sufficiently prejudicial to warrant a new trial. The 11th Cir. said "the district court properly struck evidence that was obtained in violation of the local rule restricting communications between a party and juror."

Public Trial Not Required for Inquiry of Testimony of a Would-be Murder Victim.

An open hearing is not required for an inquiry into the availability of a victim who gave testimony earlier.

 

State of Kansas v. Samuel Reed, 2015 BL 196978, Kan., No. 106, 807, 6/19/15

 

    The court ruled that the Sixth Amendment right to a public trial was not violated because the question of the victim's willingness to testify did not form part of the prosecution and the public did not have a strong interest in hearing the victim reiterate his refusal to take the stand. The court ruled that "whether [the victim] would testify was a collateral matter concerning a qusion of law," and "there were no allegations of government misconduct that required circulation in the fresh air that accompanies public observation."

 

    Citing the First Circuit Court of Appeals, the court indicated that the right of a public trial does not attach to an offer of proof hearing. The court looked to a Fifth Circuit decision showing that in-chambers discussions addressing "technical legal questions" such as issues about jurors, evidentiary questions, and a discussion with the defendant about witnesses he wished to subpoena for his defense, need not be conducted in public.

 

 

http://www2.bloomberglaw.com/public/desktop/document/State_v_Reed_No_106807_2015_BL_196978_Kan_June_19_2015_Court_Opin