Bindover Standard Does Not Allow Court to Second-Guess Prosecutor Evidence

Utah’s bindover standard for probable cause, does not allow courts to second-guess the prosecution’s evidence by weighing it against the totality of evidence to draw a reasonable inference.

State v. Jones, 2016 UT 4, 365 P.3d 1212.

    The Utah Supreme Court reaffirmed that probable cause for arrest is the standard used to determine whether bindover is appropriate based on evidence provided by the prosecutor for allegations of a crime. In analyzing these cases, the court suggests the question to ask is “whether any officer, viewing the evidence in the light most favorable to the prosecution, could reasonably conclude that a crime was committed and that the defendant committed it.”

   A magistrate and the appellate court both made inferences on their decision based on the totality of evidence, not taking into account the limited role that courts must take in applying the probable cause standard in viewing the evidence in the most favorable light of prosecutors.  The court further noites that “[t]he judicial role at this stage, however, is not to prejudge the likely outcome of trial. It is simply to ask whether there is a non-speculative basis in the evidence to sustain a reasonable basis for an arrest on the crime in question.”

https://www.utcourts.gov/opinions/supopin/State%20v.%20Jones20160111.pdf

Defendant Does Not Invite Error if Caused by Actions of the Court

A defendant does not invite error if his counsel withdraws a hearsay argument due to actions of the trial court and then later fails to affirmatively object to the court’s actions.

State v. McNeil, 2016 UT 3, 365 P.3d 699.

   The Utah Supreme Court narrowed its definition of invited error to exclude instances when the court takes actions in which counsel fails to object. Generally, invited error occurs when counsel encourages the trial court to make an erroneous ruling. To do this, counsel would need to independently make an affirmative representation of an erroneous principle. This principle, however, is moot if the trial court is responsible for leading the trial to the error in the first place. The defendant’s counsel withdrew an objection to an error due to actions of the trial court, therefore, the failure to object “to a trial court’s actions in not invited error in this context.”

https://www.utcourts.gov/opinions/supopin/State%20v.%20McNeil20160106.pdf

Load Indicator Law in Massachusetts Did Not Violate Due Process

A due process challenge led by gun groups, dealers, and consumers against a new Massachusetts gun law requiring “load indicators” fails. 

Draper v. Healey, 2016 BL 194313, 1st Cir., No. 15-1429, 6/17/16.

    In a First Circuit opinion, the court found that a due process challenge against a new Massachusetts gun regulation fails because the plaintiffs was unsuccessful in showing any injury and because there was sufficient notice of the law and its requirements.

   The court first found that some of the plaintiffs lacked standing, including groups and associations from out of the state that did not have any members in Massachusetts. The next group, gun dealers, had fair notice of the law’s requirements from the state, which the court held to be sufficient, noting that blueprints or specific plans are not necessary to create notice. Finally, gun consumers did not have standing because the court found their claim of having standing derive from gun dealers was not sufficient if the gun dealer’s claim did not succeed.

http://www.bloomberglaw.com/public/document/Draper_v_Healey_No_151429_2016_BL_194313_1st_Cir_June_17_2016_Cou.

Challenge Against State Law Requiring Secrecy After Grand Jury Trial Revived

A woman’s challenge against a Missouri state law prohibiting grand jurors from speaking about their experience had her lawsuit revived by the Eight Circuit 

Doe v. McCulloch, 2016 BL 195633, 8th Cir., No. 15-2667, 6/20/16.

   A female grand juror wanted to speak out about her grand jury trial experience surrounding the police officer involved in the death that sparked riots in Ferguson, Missouri. She started a First Amendment action against the law so that she could come out and dispel certain assumptions about the grand jury verdict, but has not been able to because of the law.

   Initially, a lower court dismissed the case because of its application of a case affecting secrecy and regulatory schemes. On the appeal, the circuit court found that a different case should have been used. This case, R.R. Comm’n of Texas v. Pullman Co., requires that a federal action be stayed to wait and see if the related state matter will moot the federal issue. The court issued in its opinion, “When the state-law issues have been resolved, if the First Amendment claim has not become moot, [plaintiff] may return to federal district court and pursue it.”

https://www.bloomberglaw.com/public/desktop/document/Doe_v_McCulloch_No_152667_2016_BL_195633_8th_Cir_June_20_2016_Cou?1467239982

No Penalty Conviction Still Triggers Deportation Proceedings

A drug conspiracy conviction that includes a sentence without jail time, probation, or any other penalty, can still trigger deportation proceedings under the Immigration and Nationality Act

Frias-Camilo v. Att'y Gen., 2016 BL 201232, 3d Cir., No. 15-3733, 6/23/16.

   AThird Circuit court found that a guilty conviction, even those without an actual sentence or restraint on personal liberty, still can trigger deportation proceedings. The defendant pled guilty in his criminal trial, was convicted, and then was given a “guilty without further penalty” sentence. He argued that without an actual sentence, his conviction did not fit into the federal sentencing statutes that would establish any guilt allowing for deportation.

   The court rejected the defendant’s arguments, noting that the Immigration and Nationality Act does not place a punishment or sentencing component in the act’s definition of “conviction.” The court further argued that although there is no sentencing option for a “guilty without further penalty” in federal statute, the state statute clearly provides for this type of sentencing, which would trigger deportation. “We do not hesitate to conclude that a sentence of ‘guilty without further penalty’ is a ‘sentence’ for purposes of the INA.”

http://www.bloomberglaw.com/public/document/FriasCamilo_v_Atty_Gen_No_153733_2016_BL_201232_3d_Cir_June_23_20.

Bank Robbery Note Implies Threat in Absence of Actual Threatening Language

The Washington Supreme Court held that an ominous note given to a bank teller, without explicit threatening language, still implies a threat that makes the crime a bank robbery instead of a theft.

State v. Farnsworth, 2016 BL 201930, Wash., No. 91297-1, 6/23/16.

   In the opinion, the Washington Supreme Court stated, “When a person demands money at a bank, with no explanation or indication of lawful entitlement to money, it can imply a threat of force because without such a threat, the teller would have no incentive to comply.” The bank teller, with their training and a reasonable understanding of the situation, knew that the note implied a threat of bodily harm, the court noted. The defendants argued that they purposely avoided a threat of force so they would only commit a theft, rather than a robbery, the argument that the supreme court ultimately rejected.

http://www.bloomberglaw.com/public/document/State_v_Farnsworth_No_912971_2016_BL_201930_Wash_June_23_2016_Cou.

In Civil Rights Suits, Exclusionary Rule Does Not Apply

Officers facing lawsuits for unlawful arrest may use evidence that was that was suppressed during the plaintiff’s criminal trial as part of their defense

Lingo v. City of Salem, 2016 BL 204750, 9th Cir., No. 14-35344, 6/27/16.

    The Ninth Circuit, following suit of nearby circuit courts, ruled that evidence suppressed during a criminal proceeding can be used by the police officer in their defense during a civil suit for unlawful arrest. The court stated that the exclusionary rule is not a personal right by noting that it does not apply in grand jury proceedings, civil tax cases, or civil deportation actions. While the officer’s evidence could not be introduced during the criminal proceeding, for the purposes of a civil trial, the officer could still use the evidence to support their probable cause arrest.

   The circuit court also noted that the exclusionary rule already gave the plaintiff a large benefit during her criminal proceedings. By extending the rule to civil cases, the practical effect would be “increase[ing] state actors’ financial exposure in tort cases that happen to involve illegally seized evidence.” 

http://www.bloomberglaw.com/public/document/Lingo_v_City_of_Salem_No_1435344_2016_BL_204750_9th_Cir_June_27_2.

Arkansas Not Required to Reveal Lethal Injection Drug Supplier

The Arkansas Supreme Court found that inmates have no constitutional right to require the state to disclose the source of the drugs used in lethal injections

Kelley v. Johnson, 2016 BL 203211, Ark., No. CV-15-992, 6/23/16.

   In a case from Arkansas, the state Supreme Court found that there was no constitutional right for inmates “to know” the source of the drug used in their future lethal injection executions. The prisoners argued that a more humane alternative, such as firing squad, existed, which would make death by lethal injection a violation of the Eight Amendment. The court rejected these arguments, noting that neither disclosing the supplier would “positively enhance the functioning of executions in Arkansas” and that there were no viable alternatives in operation that would be feasible, readily implemented, and would be cause less pain and suffering than lethal injection.

http://www.bloomberglaw.com/public/document/Kelley_v_Johnson_2016_Ark_268_Court_Opinion.

Mandatory Blood Tests Violate the Fourth Amendment

States cannot require blood tests as part of their implied-consent laws to determine a drunk driver’s BAC when criminal penalties are imposed for refusing to take a test

Birchfield v. North Dakota, U.S., No. 14-1468, 6/23/16.

   This decision combines three similar cases that involve searches incident to an arrest resulting from drunk driving. In each of the three cases, the laws of the state in which they were arrested had implied consent laws that obligated a driver to agree to a BAC test as a condition of driving. The drivers in the three cases were subjected and informed of their respective states’ implied consent laws after being found to be intoxicated by a police officer. One refused a blood test and was charged with a misdemeanor according to the state law. Another agreed to a breath test, failed, and was further prosecuted. Another agreed to a blood test, failed the blood test, and was also further prosecuted. In all three cases, the drivers appealed their convictions on the ground that the warrantless BAC tests were unreasonable and violated their Fourth Amendment rights because of the criminal penalties associated with the implied consent laws.

   The Court began by establishing the reasonableness of searches-incident-to-arrest. It then continued by discussing how breath and blood tests implicate the Fourth Amendment, but noting that breath tests do not “implicate significant privacy concerns.” Further into the opinion, the Court elaborated on breath tests, finding them to be as intrusive as or even less intrusive than other tests that have been upheld under the Fourth Amendment, including mouth swabs and fingernail scrapings. The Court found that breath tests also limit the amount of information measured and are no more of an embarrassing act than blowing into a straw. The opinion also found that blood tests are more intrusive than a breath test, pointing to how such tests provide more information than a breath reading and are more embarrassing because of how they induce anxiety for some.

   In reaching its conclusion, the Supreme Court found “that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving,” explaining that a breath test’s impact on privacy is minimal and the need for BAC testing is great. For blood tests, however, the Court reached the opposite conclusion, finding that the blood tests are overly intrusive in light of alternatives, making them unreasonable without a warrant. Drivers could not be criminally punished for refusing a blood test based on an implied-consent law, but a breath test can be used without a warrant, allowing for their use in states with implied-consent laws.

http://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf.

Firearm Ban for Committing Domestic Violence Upheld

A lifetime firearms ban is upheld for convictions of misdemeanor crimes of domestic violence, including a conviction for reckless domestic assault 

Voisine v. United States, U.S., 14–10154, 6/27/16.

   The Supreme Court upheld a federal law that creates a lifetime ban for those convicted of domestic violence crimes, including misdemeanors, from owning a firearm. The Court analyzed the statutory text, coupled with the context of the passage of the act prohibiting firearm ownership, and recognized the recklessness standard for triggering the ban. The Court focused on the statute’s reference of “use…of physical force,” noting that there was no distinction between domestic assaults that were knowingly or intentionally committed and those that were committed recklessly when such force was used. The court continued by saying thee ultimate purpose of the statute was “to take guns out of the hands of abusers convicted under the misdemeanor assault laws then in general use in the States,” which the majority of states have already extended to encompass reckless assaults.

http://src.bna.com/ggr

Corruption Conviction of Former Governor Thrown Out

The definition for an “official act” under the corruption statute is too expansive and should be limited to decisions or actions “in such the official’s official capacity, or in such official’s place of trust and profit.”

 McDonnell v. United States, No. 15–474, U.S., 6/27/16.

   The corruption conviction of former Virginia Governor Bob McDonnell was overturned by the Supreme Court because the definition used by the Fourth Circuit for an “official act” was too expansive. As described by the Court, “[a]n official act is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” Only formal government actions or administrative determinations are subject to being considered an “official act,” not routine political courtesies.

   The Court remanded the case back to the lower courts to determine if there was evidence of McDonnell committing an “official act” under the new definition offered in the decision. If there was evidence, then a new trial may be required. Prosecutors in the case worry that this decision will make it more difficult for future prosecutions of politicians that violate corruption and bribery laws.

http://src.bna.com/ggx

State Offenses Broader Than Federal Statute Prevent Sentencing Enhancement

State statutes that provide multiple elements and alternatives for a single crime cannot trigger a sentencing enhancement under the Armed Career Criminals Act

Mathis v. United States, U.S., No. 15-6092, 6/23/16.

   A defendant convicted for burglary under a state statute that included a broader definition than which is found under the Armed Career Criminals Act (ACCA). The federal statute defined burglary as “an unlawful entry into a building or other structure,” while the Iowan statute’s definition of burglary encompassed more, including unlawful entry into any “building, structure, [or] land, water, or air vehicle.”

   In response, the court said, “For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense,” Justice Elena Kagan wrote for the 5-3 majority. “The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.”

http://www.supremecourt.gov/opinions/15pdf/15-6092_1an2.pdf

With Potential Civil Litigation, Government Cannot Destroy External Hard Drive

After the completion of criminal proceedings, the government cannot destroy a hard drive that may be used in potential civil litigation. 

United States v. Sember, 2016 BL 170363, S.D. Ohio, No. 3:14-cr-141, 5/27/16.

   After a jury found that a defendant did not commit theft of government property, the state attempted to recover a hard drive used in the trial to destroy the information. A federal district court in Ohio, however, prevented the hard drive’s destruction. The court refused to destroy the contested hard drive because the former defendant was preparing for a civil trial. “A party to civil litigation has a duty to preserve evidence, including electronically stored information, when it is put on notice that the evidence is relevant to existing litigation or may be relevant to future litigation,” the court said.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Sember_No_314cr141_2016_BL_170363_SD_Ohio_May_27_?1466032537

Cyberbully Law in North Carolina Violates Free Speech

Law aimed at preventing cyberbullying was ruled unconstitutional by North Carolina Supreme Court because it restricted “content based” speech.

State v. Bishop, N.C., No. 223PA15, 6/10/16.

    North Carolina Supreme Court overturned its appellate court, ruling that a law making it a crime to post on the Internet “private, personal, or sexual information pertaining to a minor” with the intent to “intimidate or torment” was unconstitutional. While the appellate court found that the law regulated non-expressive conduct, the supreme court found that it restricted content-based speech. The court further held that the law was not narrowly tailored to serve the state’s purpose in preventing cyberbullying, thereby violating the First Amendment.

http://src.bna.com/fNW

Unjustified Shackling of Defendant Does Not Undermine Fair Trial

A defendant has the burden to prove prejudice by showing that the jury saw their shackles when they were unjustifiably shackled during trial.

State v. Brawley, 2016 BL 179698, S.C., No. SC 19441, 6/14/16.

   The Connecticut Supreme Court ruled that a defendant must show that the jury saw his shackles during trial to establish prejudice during the trial, even if the shackling was unjustified. The defendant, although charged with multiple violent crimes, was not a flight risk or subject to behavioral issues that posed a danger, not necessitating shackles.

   The defendant argued that the State had the obligation to prove that the jury did not see the shackles because the record was silent on the issue, but the court disagreed. The court noted the practice of the judge in placing a curtain around the defense table so the jury cannot see the prisoner’s legs in addition to having the defendant seated before the jury leaves or enters the courtroom favored the state in that the burden is placed on the defendant.

http://www.bloomberglaw.com/public/document/State_v_Brawley_No_SC_19441_2016_BL_179698_Conn_June_14_2016_Cour.

An Appeal by an Illegal Alien is Not Moot After Deportation

An appeal regarding the conditions of a supervised release for an illegal alien is not moot, even after the alien was deported and in a different country

United States v. Heredia-Holguin, 2016 BL 162030, 5th Cir., No. 14-10846, 5/20/16.

    An alien that is deported is still subject to certain conditions of his supervised release, which in turn allows him to still appeal those conditions. As the judge stated, “It makes little sense to continue to allow a district court to impose a term of supervised release on a deportable alien but prevent him from being able to challenge that term of supervised release.”

http://www.bloomberglaw.com/public/document/United_States_v_HerediaHolguin_No_1410846_2016_BL_162030_5th_Cir_.

Using Magnetic Strips on a Suspect’s Credit Card Is Not a “Search”

Police do not have to obtain a search warrant before scanning a credit card’s magnetic strips during a search. 

United States v. DE L'Isle, 2016 BL 182195, 8th Cir., No. 15-1316, 6/8/16.

   The Eight Circuit found that police scanning credit cards obtained in a search do not violate the Fourth Amendment’s prohibition on illegal searches. Officers initially seized the cards and scanned them to determine whether they were counterfeit after completing a search for drugs in a car. The court held that the cards’ owner did not have a reasonable expectation of privacy in the cards because the information gathered from a card “is identical to the information in plain view on the front of the card.”

    The court did warn that with technological advances, cards that share more information might be subject to the Fourth Amendment in the future.

http://www.bloomberglaw.com/public/document/United_States_v_Briere_No_151316_2016_BL_182195_8th_Cir_June_08_2.

Right to Carry a Concealed Weapon Not Protected by the Second Amendment

The Ninth Circuit found that the Second Amendment does not extend in protecting members of the general public while they carry a concealed firearm in public without a permit

Peruta v. Cty. of San Diego, 2016 BL 183925, 9th Cir., en banc, No. 10-56971, 6/9/16.

   Under California law, members of the general public must show “good cause” to carry a concealed weapon. “Good cause” is determined by local sheriffs, and in San Diego and Yolo counties, a person must state a specific reason to establish “good cause.” The court found that this standard, both at the state and county levels in this case, were “a reasonable limitation of the right to carry firearms in public.” The court, however, avoided to comment “whether the Second Amendment protects the ability to carry firearms in public, such as open carry.”

http://www.bloomberglaw.com/public/document/Peruta_v_County_of_San_Diego_No_1056971_2016_BL_183925_9th_Cir_Ju.

Pornography Regulations Regarding Minors Subject to Strict Scrutiny

Recordkeeping regulations on adult film producers aimed at preventing child pornography are subject to the First Amendment, requiring their reviewing standard to be strict scrutiny

Free Speech Coal., Inc. v. Att'y Gen., 2016 BL 182465, 3d Cir., No. 13-3681, 6/8/16.

   The Third Circuit found that regulations aimed at preventing child pornography levied on adult film producers require strict scrutiny to analyze their constitutionality. On remand, the district court must determine whether the regulations are narrowly tailored to further a compelling state interest.

    Originally, these regulations were upheld by the circuit court using intermediate scrutiny as the standard they applied. The reviewing standard changed, however, after the Supreme Court’s decision in Reed and City of Los Angeles v. Patel, which required that strict scrutiny be used on similar regulations because they were “content based” and not content-neutral. 

http://www.bloomberglaw.com/public/document/Free_Speech_Coalition_Inc_v_Atty_Gen_No_133681_2016_BL_182465_3d_.

Puerto Rico Cannot Invoke Dual-Sovereignty Exception to Fifth Amendment

The Supreme Court ruled that Puerto Rico, due to its status as a territory, cannot invoke the dual-sovereignty exception of the Fifth Amendment in prosecuting the same defendant twice for the same crime

Puerto Rico v. Sanchez Valle, 2016 BL 184213, U.S., No. 15-108, 6/9/16.

    The 6-2 decision bars Puerto Rican and U.S. authorities from prosecuting the same person for a crime under similar federal and territorial laws. The ruling, in practice however, will likely affect only a small number of cases where local and federal offenses overlap or are identical. In reaching this conclusion, the Court found that Puerto Rico’s ultimate source of authority was from the federal government, not "the people of Puerto Rico." Congress granted Puerto Rico the authority to create a constitution, which allowed them to prosecute criminal actions. This power and authority, however, does not run parallel with that of the United States, but is derived from the federal government directly.

http://www.bloomberglaw.com/public/document/Puerto_Rico_v_Sanchez_Valle_No_15108_US_June_09_2016_Court_Opinio.

Tribal Sovereignty Upheld as Right to Counsel Does Not Extend to Tribal Courts

The Supreme Court found that misdemeanor domestic violence convictions in tribal courts can be considered predicate offenses under the Violence Against Woman Act, even when defendants are without counsel in earlier tribal convictions.

United States v. Bryant, 2016 BL 187309, U.S., No. 15-420, 6/13/16.

   In resolving a circuit split, the Supreme Court ruled that misdemeanor domestic violence convictions in tribal court can qualify as predicate offenses for the Violence Against Women Act (VAWA). The underlying question was whether these earlier convictions in tribal court, where counsel was not appointed, violated due process. The court found that these convictions complied with the Indian Civil Rights Act, thereby avoiding any due process claims under the Sixth Amendment, which does not extend to tribal court proceedings to maintain the court’s sovereignty.

   The “Indian Civil Rights Act, which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year's imprisonment is imposed. [Defendant’s] tribal-court convictions, it is undisputed, were valid when entered.” Since the convictions were constitutional, they could count towards VAWA’s provisions regarding domestic violence on Indian reservations, which require any subsequent conviction after two previous convictions to be considered a felony.

http://www.bloomberglaw.com/public/document/United_States_v_Bryant_No_15420_2016_BL_187309_US_June_13_2016_Co.

Without Recusal, State Judge Violated Due Process

After authorizing prosecutors to seek the death penalty as a former district attorney, a Pennsylvania Supreme Court Justice should have recused himself to avoid violating the due process rights of the convict

Williams v. Pennsylvania, 2016 BL 184130, U.S., No. 15-5040, 6/9/16.

    The Supreme Court found that a Pennsylvania Supreme Court justice should have recused himself in hearing a habeas corpus petition by a convict on death row. The conflict of interest arose because the justice was a former District Attorney that authorized prosecutors to seek the death penalty against this same convict almost 30 years ago.

   The court in making this decision found that the justice’s participation violated the “due process maxim” that “no man can be a judge in his own case.” The state argued that the justice, as a district attorney, only participated in the case as an administrator, but the United States Supreme Court rejected the argument. They found that during his candidacy for the state supreme court he used the convict and other death penalty sentences to support his platform, thereby taking responsibility for the conviction and sentence.

   In the dissent, Chief Justice Roberts argued that due process is only violated “when a judge adjudicates the same question—based on the same facts—that he had already considered as a grand juror in the same case.” He agreed that the Pennsylvania justice should have recused himself, but not due to a constitutional concern, but rather a concern of the states in setting forth its own judicial procedures.

http://www.bloomberglaw.com/public/desktop/document/Williams_v_Pennsylvania_No_155040_US_June_09_2016_Court_Opinion?1466019882

W. Virginia: Child Neglect Resulting in Death Does Not Extend to Certain Prenatal Actions of Mother

A mother will not be charged with child neglect resulting in death due to actions she took while pregnant because of the West Virginia Supreme Court’s textual interpretation of the statute

State v. Louk, 2016 BL 169764, W.Va. No. 15-0021, 5/27/16.

    A West Virginia law criminalizing child neglect resulting in death does not extend to actions taken by a pregnant woman before the child is born. The Supreme Court of West Virginia focused their argument on the statute’s definition of child, which does not include unborn children or fetuses. The chief justice wrote, “[W]hen our legislature intends to include an unborn child in a statute, it writes that language into the statute.”
 
    The Supreme Court also rejected the argument that the statute prohibiting child neglect resulting in death should be interpreted along the common law “born alive” rule, which applies to a child who is born alive, but subsequently dies due to injuries inflicted while in the womb. The rule provides that the inflictor of those injuries may be guilty of murder. In rejecting this argument, the court noted that the overwhelming majority of jurisdictions have rejected these types of arguments because of the unwillingness to expand this rule to criminal offenses.

http://www.bloomberglaw.com/public/document/State_v_Louk_No_150021_2016_BL_169764_W_Va_May_27_2016_Court_Opin.

Conspiracy to Distribute Cannot be Implied Without Agreement to Sell

Without an agreement that a drug buyer would resell them to others, a conspiracy to distribute cannot be implied, even when large quantities of the drugs were being purchased

United States v. Loveland, 2016 BL 177122, 9th Cir., No. 13-30162, 6/3/16.

    The Ninth Circuit found that there can be no conspiracy to distribute without an agreement between the seller and buyer that the buyer will resell the drugs. The court rejected the government’s argument that “a prolonged relationship of the parties in which the success of one depends on the success of the other,” where the seller “had to know” that there was an implied agreement between him and buyer were enough to establish a conspiracy to distribute. Additionally, the court acknowledged that an agreement can be implied from the surrounding circumstances of a relationship between a buyer and seller, but there must be a showing of a “shared stake.” Without evidence of the seller “fronting” the drugs, the buyer taking the drugs on consignment, or some other special discount, the circumstances are not sufficient to establish a conspiracy to distribute. Here, however, the buyer was only a long-time and high-quantity customer who may have likely resold the drugs, but as the court determined, this was not enough to imply a conspiracy to distribute.

http://www.bloomberglaw.com/public/document/United_States_v_Loveland_No_1330162_2016_BL_177122_9th_Cir_June_0.

Federal Grand Jury Proceedings Preempt N.M. Rule on Subpoenaing Lawyers

A New Mexico ethics rule limiting the subpoenaing of lawyers is preempted by federal prosecutors’ need for the lawyer as a witness in the grand jury context   

United States v. Supreme Court of N.M., 2016 BL 180748, 10th Cir., No. 14-2037, 6/7/16.

    A Tenth Circuit decision will now preempt an ethics rule in New Mexico that prevents prosecutors from subpoenaing another lawyer to present evidence about a former or current client without an essential need or alternative. The court, however, found that the rule is “an obstacle to the effectuation of the grand jury’s constitutionally authorized investigative functions,” allowing for federal prosecutorial need to preempt the rule in grand jury proceedings.

    New Mexico’s ethics rule, however, is still enforceable in other contexts, but will always be preempted in a grand jury situation.


http://www.bloomberglaw.com/public/document/United_States_v_Supreme_Court_of_NM_No_142037__142049_2016_BL_180

Showing Sexual Messages on Phone Counts as Sending a Message Under Statute

Man convicted of criminal sexual communication with a child by showing explicit images through handing phone over to a child to directly show the explicit pictures

State v. Tufts, 2016 BL 175227, N.M., No. S-1-SC-35255, 6/2/16.

    The New Mexico Supreme Court found that a man “sent” sexually explicit images to a child by directly showing pictures on his phone to the child. Initially, the trial court convicted the man for sexual communication with a child, but was later reversed by the appellate court over its interpretation of “to send.” On appeal, however, the New Mexico Supreme Court looked at the intent of the statute, finding that it was created to protect children from obscene images produced, stored, or distributed on an electronic device. They noted, that while a third-party carrier may be involved, communication can “occur by delivering the electronic communication device containing the obscene images of the defendant directly to the child.” Moreover, the court concluded “Whether a digital camera, a video recorder, or a cell phone is handed directly to a child or an image is electronically transmitted to one of those devices, the effect of the conduct and the resulting harm to the child—access to obscene electronically generated images via an electronic communication device—is the same.”

http://www.bloomberglaw.com/public/document/State_v_Tufts_No_S1SC35255_2016_BL_175227_NM_June_02_2016_Court_O

Untimely Guilty Plea Not Enough to Prevent Responsiblity Credit

An untimely guilty plea in a plea deal is not sufficient for denying the two-level sentencing deduction for acknowledging responsibility

United States v. Hollis, 2016, BL 166203, 6th Cir., No. 15-5246, 5/25/16.

    The Sixth Circuit overruled a federal district court's ruling in denying to take into account a guilty plea in a plea deal after the defendant failed to meet the deadlines set by the judge, who found that such tardiness caused a "waste of government resources." The circuit court responded that under U.S.S.G. Section 3E1.1(a), that "timeliness of a defendants plea" can only be considered "to the extend that timeliness reflects the extent of the defendant's sincerity in accepting responsibility."

   The court notes that the waste of government resources lies in subsection (b) in the same section, which credits the defendant's offense level one step if the plea saves government resources. While overturning the district court's ruling, the circuit court did note that timeliness is not completely irrelevant. The court in their conclusion found that a defendant entering a plea deal at the eleventh hour does not necessarily indicate an acceptance of responsibility, but rather apprehension of the government's case against him or her. "Such a situation might occur when the plea comes on the eve of or during a trial," the court elaborates.

   The takeaway is that the timeliness of a plea is only considered to the extent that it shows insincerity, not inconvenience or a waste of government resources.

http://www.bloomberglaw.com/public/document/United_States_v_Hollis_No_155246_2016_BL_166203_6th_Cir_May_25_20.

California: Swiss Army Knife Not Considered a Dagger

After a recent California decision, a simple pocket knife is not considered an illegal dagger under state statute because the blade did not lock into place

People v. Castillolopez, 2016 BL 175546, Cal., No-S21886, 6/2/16.

    The case arose from a dispute over what constitutes a dagger under California statute, which specifies that for a blade or knife to be considered as a dagger, it must be exposed and locked into position. The California Supreme Court held that pocketknives do not necessarily come “locked into position,” even if they can be “secured in a rigid or fastened location.”  In the end, because the knife could easily be closed by applying pressure to the back of it, it could not be considered “locked into position” within the meaning of the California statute, thereby not making it a dagger.

http://www.bloomberglaw.com/public/document/People_v_Castillolopez_No_S218861_2016_BL_175546_Cal_June_02_2016.

Request For Lawyer’s Contact Information From Girlfriend Considered Invocation of Counsel

Police in Georgia were found to violate a suspect’s right to counsel by continuing to question him after he requested that the police contact his girlfriend to get his lawyer’s information. 

State v. Philpot, 2016 BL 178848, Ga., No. S16A0334, 6/6/16.

    The Supreme Court of Georgia found that the suspect did invoke his right to counsel by asking the police that were questioning him to contact his girlfriend so she could get a hold of his lawyer. There was an initial issue of whether there was ambiguity in his invocation for counsel, but the Supreme Court was unwilling to find comments made by the suspect as ambiguous as he attempted to exercise his rights. The Georgia court reaffirms that a suspect can invoke his right to counsel by contacting a third party first to arrange for their lawyer to appear.

http://www.bloomberglaw.com/public/document/State_v_Philpot_No_S16A0334_2016_BL_178848_Ga_June_06_2016_Court_

Limited Warrant Okay For DNA Test of Victims and Witnesses in Assault

Under certain circumstances, police may gather DNA evidence of a non-cooperative victim or witness with a limited use warrant even if they are not suspected of any criminal wrongdoing.

In re Grand Jury Witness G.B., 2016 BL 167249, D.C., No. 15-CO-531, 5/26/16.

    The Supreme Court found that a minimally invasive DNA test was permissible with a limited-use warrant of a victim and witness in a crime, as long as the test is reasonable. The defining factors of reasonableness as identified by the court were the scope and manner of the test. In this instance, the test was a minimally invasive buccal swab that could be performed easily anywhere. The court also took into consideration that the test results were not allowed to be entered into a government database or be used to prosecute the victim for perjury. Moreover, the samples gathered after the test could be immediately destroyed after the investigation. 

http://www.bloomberglaw.com/public/document/In_re_GB_No_15CO531_2016_BL_167249_DC_May_26_2016_Court_Opinion 

Does Modern Standard of Intellecutal Disability Apply to 35-Year Old Death Sentence?

After granting certiorari, the Supreme Court will determine whether the modern standard of an intellectual disability applies for a conviction after a 35-year delay for an execution

 Moore v Texas, U.S. No 15-797, cert. granted 6/6/16.

   The Supreme Court will review whether modern medical standards, not those at the time of conviction, should be used to determine if a defendant has an intellectual disability making him ineligible for the death penalty. Initially, the Texas Court of Criminal Appeals found Moore did not show by a preponderance of evidence that he was intellectually disabled, thereby making him eligible for execution. This ruling, however, does not take into consideration new standards adopted by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association after the Supreme Court's decision in Atkins v. Virginia, which held that the Eight Amendment prevents the death penalty from being imposed on those with intellectual disabilities.