Specific Mens Rea Required For Drug Analogues

It is not rational to presume beyond a reasonable doubt that a defendant knew that just because one drug gives similar effects as another, the two drugs share similar chemical structures.

 

United States v. Makkar, 2015 BL 384626, 10th Cir., No. 14-5147, 11/23/15

    The 10th Circuit Court of Appeals overturned the convictions of two men selling controlled substance analogues. The convictions were reversed because the trial court jury had been instructed to infer that because the drug's effects were similar to marijuana, the men knew that it was an illegal drug.

    The court said that "[a]s a matter of common experience and logic, the fact that one drug produces a similar effect to a second drug just doesn't give rise to a rational inference-let alone rationally suggest beyond a reasonable doubt-that the first drug shares a similar chemical structure with the second drug."

    The convictions followed a method of proving mens rea given in McFadden v. United States (U.S. 2015). In that case, and this one, mens rea was proven by showing that the defendants knew the analogue had a similar chemical structure to the illegal drug and produced a similar effect. Those are two separate questions.

    In this case the government never showed that the defendant's knew anything about the chemical structure. Instead they had the jury instructed to infer that the defendants knew the structure was similar based on what they knew the effects to be. This conflated two independent statutory inquiries, and did so by "resorting to a logical fallacy, a hasty generalization or associational error-an unwarranted assumption that because certain things share one characteristic they must share others."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Makkar_No_145147_2015_BL_384626_10th_Cir_Nov_23_2/1?1451492900

Medical Marijuana License As Possible Defense to DUI

Lawful users of medical marijuana are not automatically guilty of DUI, but they bear the burden of proving that the concentration of the drug in their system was insufficient to cause impairment.

 

Dobson v. McClennan, 2015 BL 382797, Ariz., No. CV-14-0313-PR, 11/20/15

 

    The Arizona Supreme Court ruled that lawful users of medical marijuana are not automatically guilty of DUI. The court did say that the patients bear the burden of proving that the concentration of the drug in their system was insufficient to cause impairment.

 

    The court did not accept the defendant's claim that it was not fair to put the burden on them because there is not a medically accepted threshold of marijuana impairment. Here, the court said, "[t]he risk of uncertainty in this regard should fall on the patients, who generally know, or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets."

 

 http://www.bloomberglaw.com/public/desktop/document/Dobson_v_McClennen_No_CV140313PR_2015_BL_382797_Ariz_Nov_20_2015_?1451411924

Dog-Sniff Illegal on Curtilage Even if Officer Hangs Back

Evidence ruled inadmissible when the drug dog alerted near a suspect's apartment window even though the officer let the dog roam off leash while he stayed outside the curtilage.

 

United States v. Burston, 2015 BL 384510, 8th Cir., No. 14-3213, 11/23/15

    In this case the officer let the dog off the leash to sniff around while he remained outside of the curtilage by being six feet away from the apartment window. The Eighth Circuit Court of Appeals ruled that the search violated the rules laid out in Florida v. Jardines.

    The court stated that "cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant."

    The court determined that the action in this case is different from action permitted in a common area. The court stated that "the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area."

    The ruling indicates that it is the location of the dog that matters. The argument that there is no Fourth Amendment violation so long as the officer stands "in a lawful location" while the dog invades the curtilage unlawfully is incorrect.

http://www.bloomberglaw.com/public/desktop/document/United_States_of_America_Plaintiff__Appellee_v_Democrus_Pernell_B?1451402638

Police Not Caretakers During Manhunt

Community caretaking exception will not grant qualified immunity to police officers for a warrantless entry into a home while hunting down a robbery suspect.

 

Matalon v. Hynnes, 2015 BL 379728, 1st Cir., No. 15-1372, 11/18/15

    Police officers were chasing a robbery suspect and a witness directed the police officers to a home where they arrested the occupant. The occupant was not involved with the robbery and sued the officers. The officers claimed that the community caretaker exception applied to them, the court ruled that it did not.

    The First Circuit Court of Appeals said that the community caretaking exception to the Fourth Amendment's protections has become a "catchall for the wide range of possibilities that police officers must discharge aside from their criminal enforcement activities."    

    The community caretaking exception does not apply in this case because the officers' search was not "aside from their criminal enforcement activities" because it was that exact activity. The standard for this activity is that "[a]n objectively reasonable officer should have known that a warrantless entry into the plaintiff's home could not be effected on the basis of the community caretaker exception."

http://www.bloomberglaw.com/public/desktop/document/Matalon_v_Hynnes_No_151372_2015_BL_379728_1st_Cir_Nov_18_2015_Cou?1451317442

Feds Protected By Qualified Immunity In Arrest of State Cops

Qualified immunity is granted in a civil rights lawsuit to federal agents who arrested every state cop at the scene of a fake drug raid, to then later sort out which suspects stole the "bait" items.

 

Callahan v. Unified Gov't of Wyandotte Cty./Kan. City, 2015 BL 376394, 10th Cir., No. 14-3717, 11/16/15

    The U.S Court of Appeals for the Tenth Circuit granted qualified immunity to the federal officers even though the arrests were made with blanket suspicion, not specific individual suspicion, that some of the group had stolen items.

    The plaintiffs cited Ybarra v. Illinois, 444 U.S. 85 (1979), where the U.S. Supreme Court held that a warrant to search a public bar for evidence of drug deals did not allow the officers to search all of the patrons only because of their "mere propinquity" to those already suspected. Ybarra requires particularized probable cause.

    To differentiate from Ybarra, the court looked to Maryland v. Pringle, 540 U.S. 366 (U.S. 2003), which upheld the detention and search of everyone in a car (not just the driver) on the reasonable conclusion that everyone in the small space was likely involved in a common criminal enterprise.

   However, the court indicated that Pringle raises more questions than it answered, and that its impact on the Ybarra analysis open for debate. Because of this ambiguity, the court concluded that the arresting officers had not violated the Ybarra standard saying, "[w]e cannot ask officers to make a legal determination-that law professors probably could not agree upon-without any guidance from the courts and then hold them liable for guessing incorrectly."

http://www.bloomberglaw.com/public/desktop/document/Callahan_v_Unified_Govt_of_Wyandotte_CtyKan_City_No_143171_2015_B?1450892372

Sentence Enhanced Even With Unclaimed Gun

Even though there was no evidence directly tying the defendant to the weapon found in the same house as he, he was eligible for a two-level sentencing enhancement for possession of a shotgun.

 

United States v. Rodriguez-Guerrero, 2015 BL 357884, 5th Cir., No. 14-41289, 10/10/15

    The U.S. Court of Appeals for the 5th Circuit affirmed the trial judge's determination that there was enough of a "temporal and special relationship" between the weapon, the drug trafficking, and the defendant. The court said that, because the weapon was found along with bundles of marijuana, it was more likely that the weapon would be used by the defendant.

    The house where the arrest was made was a "stash house" and the only purpose for the defendant to be there was to protect the drug stash. The court ruled that "[b]ecause the only purpose of the house was for drugs, it was plausible to find that the only purpose of the weapon was to support the drug business."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_RodriguezGuerrero_No_1441289_2015_BL_357884_5th_C?1450714340

Can't Waive Statutory Right to Counsel

The right to be represented by counsel at a proceeding to determine his competency to stand trial cannot be waived by a federal criminal defendant.

 

United States v. Kowalczyk, 2015 BL 362971, 9th Cir., No. 14-30198, 11/4/15

    The U.S. Court of Appeals for the Ninth Circuit indicated that it is not logical to say that a defendant whose competency is being questioned can nonetheless make a knowing and intelligent waiver. The Sixth Amendment guarantees a waivable right to counsel at all critical stages of criminal proceedings. The Ninth Circuit has held that a competency proceeding requires legal counsel. The Second and D.C. Circuits have also ruled that a defendant whose competence to stand trial is in question cannot legally waive the right to counsel.

    These types of proceedings are governed by 18 U.S.C. 4247(d) which states that "[t]he person whose mental condition is the subject of the hearing shall be represented by counsel and, if he is financially unable to obtain adequate representation, counsel shall be appointed for him."

    The Court's determination turned on two things. First, that "shall," as used in the statute, is ordinarily a command. And second, following the Supreme Court's holding in Indiana v. Edwards, that the standard of competence for waiving counsel to invoke the right to self-representation may be higher than the standard of competence required to stand trial.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Kowalczyk_No_1430198_2015_BL_362971_9th_Cir_Nov_0?1450203024

Illegal Trash Pull Does Not Lead To Suppression

Evidence suppression is not the remedy for an illegal trash pull in this case of a warrantless search outside of the police's territorial jurisdiction.

 

State v. Robinson, 2015 BL 366572, Kan., No. 90,196, 11/6/15

    The Kansas Supreme Court ruled that there was no evidence that the "otherwise lawful trash pull" was committed by police officers from outside of the jurisdiction. Also, if it were committed by police from another jurisdiction, the statutory limits placed on police officers' authority are designed to protect neighboring jurisdictions, and not give any particular defendants any additional substantive rights.

    Though the evidence was not suppressed, the Court rejected the state's argument that the officers were acting as private citizens, and were therefore not acting under the territorial jurisdiction of their office. The court "doubt[ed] seriously" that private citizens "could wield sufficient influence to secure the cooperation and assistance of a private trash contractor in such endeavors for weeks on end."

http://www.bloomberglaw.com/public/desktop/document/STATE_OF_KANSAS_AppelleeCrossappellant_v_JOHN_E_ROBINSON_SR_Appel?1450112350

Limited Restitution for Porn Distribution

Victim's "ongoing losses" cannot be taken into account for the restitution calculation of a man's online distribution of child pornography.

 

United States v. Galan, 0215 BL 363014, 9th Cir, No. 14-30145, 11/4/15

    Restitution calculations of a man's online distribution of child pornography should be limited to the damages that are attributable to the trafficking alone, and not the victim's "ongoing losses".

    The U.S. Court of Appeals for the Ninth Circuit ruled that "[t]hose who later participate in distribution or possession, especially at a more remote time, are part of a distribution crime, but not of the physical-abuse crime."

    The Ninth circuit determined that the district judge erred when she did not attempt "to disaggregate the losses resulting from the original abuse from the losses resulting from Galan's own activities."

    The court indicated that this type of calculation is outside of the requirements of Paroline v. United States. The court was persuaded by the 10th Circuit approach in United States v. Dunn, where the court determined that the calculation of an award in a child pornography case should start with the estimate of the victim's expenses for the harms caused by the trafficking of the victim's images, and then subtract an estimate of the expenses caused by the harms from the original abuse.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Galan_No_1430145_2015_BL_363014_9th_Cir_Nov_04_20?1449779320

Peace Officer's Qualified Immunity Reinstated by SCOTUS

Assumption that the police officer acted unreasonably is not 'beyond debate.'

 

Mullenix v. Luna, U.S., No 14-1143, cert. granted, reversed 11/9/15, per curiam

    During a late-night high-speed chase, a police officer shot and killed the driver of the escaping vehicle. The driver was shot four times. The police officer, shooting from an overpass, claimed to have been aiming for the engine block of the speeding vehicle.

    The Fifth Circuit Court of Appeals agreed with the district court that the officer's actions were not proper because the threat was not great enough to justify deadly force.

    The Supreme Court held that "whatever can be said of the wisdom of Mullenix's choice, this Court's precedents do not place the conclusion that he acted reasonably in these circumstances 'beyond debate.'"

Atkins Claim Not Precluded By Previous Non-Atkins Claim

Capital prisoners may file an additional habeas corpus petitions to assert an Atkins argument of intellectual disability, even if the previous non-Atkins claim relied on the petitioner's disability.

 

In re Chase, 2015 BL 351660, 5th Cir., 15-60452, 10/26/15

   The U.S. Court of Appeals for the Fifth Circuit held that a capital prisoner may file a successive habeas corpus petition to assert a claim that he is intellectually disabled and ineligible for execution under Atkins v. Virginia. The court indicated that, even though his first petition claimed counsel was ineffective for failing to assert his intellectual disability to cast doubt on his confession and as mitigating evidence at sentencing, the previous claim was not an Atkins claim.
 
    The court indicated that this case was within the Atkins requirements that the claim not be presented in an prior application. The court ruled that a claim under Atkins is not the same as a pre-Atkins claim, even if that claim also relied on the petitioner's intellectual disability.

http://www.bloomberglaw.com/public/desktop/document/In_re_RICKY_R_CHASE_Movant_No_1560452_2015_BL_351660_5th_Cir_Oct_?1449508854

Wittnesses' Opinion That Speaks To All Elements of Crime Disallowed

The opinion of a detective testifying as an expert should have been inadmissible because it spoke to all elements of the crime.

 

Williams v. State, 2015 BL 353500, Ind., No. 48S05-1507-CR-424, 10/26/15

    The detective was testifying as an expert and expressed that he had "zero doubt" that the exchange between the defendant and the informant was a drug transaction. The Indiana Supreme Court ruled that his testimony should have been declared inadmissible as an opinion on the ultimate issue of guilt.

    The rules of evidence bar witnesses from giving their opinion regarding guilt or innocence, and the court ruled that the detective's testimony violated that rule. The court indicated that this was different from testimony regarding intoxication or identity, which can be allowed, because this testimony discussed all of the elements of the crime, including mens rea.

http://www.bloomberglaw.com/public/desktop/document/Williams_v_State_No_48S051507CR424_2015_BL_353500_Ind_Oct_26_2015?1449089156

Testimony is Sufficient to Satisfy Jurisdictional Hook in Bribery Case

Bribery conviction upheld because witness testified to federal fund element of crime 'without equivocation.'

 

United States v. Smith, 2015 BL 350270, 5th Cir., No. 14-60688, 10/23/15

 

    Under 18 U.S.C. § 666(a)(1)(B), it is a crime for an agent of a local government, organization, or agency to solicit or accept a bribe if the entity "receives, in any one year period, benefits in excess of $10,000 under a Federal program."

 

    The U.S. Court of Appeals for the Fifth Circuit looked to United States v. Brown, 727 F.3d 329 (5th Cir. 2013), in which a city clerk was able to testify 'without equivocation' that the amount of federal funds received by the city engaged the federal jurisdictional hook. The court here stated that "[the clerk's] testimony alone was sufficient to support a finding that the federal funds element was met."

 

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Smith_No_1460688_2015_BL_350270_5th_Cir_Oct_23_20?1449074265

Collateral Filings Do Not Limit Habeas Petitions

A petition for belated appeal of the denial of collateral relief is not an "application" for "collateral review" within the federal habeas statute.

 

Espinosa v. Sec'y, Dep't of Corr., 2015 BL 349203, 11th Cir., No. 14-10581, 10/23/15)

    The petition here is different because it does not discuss the merits of the proposed appeal. It merely reviewed the grounds for excusing a late appeal.

    The U.S. Court of Appeals for the Eleventh Circuit ruled that, because the petition here is different than an application for collateral review, it does not toll the one-year limit for seeking federal habeas relief.

http://www.bloomberglaw.com/public/document/Espinosa_v_Secy_Dept_of_Corr_No_1410581_2015_BL_349203_11th_Cir_O