Misstatement of Essential Element for Crime Requires Murder Conviction Reversal

A murder conviction was reversed due to a prosecutor’s misstatement of law regarding an element of the crime that was central to the evidence presented at trial

United States v. Williams, 2016 BL 287661, D.C. Cir., No. 12-3029, 9/2/16.

   The D.C. Circuit found that a prosecutor’s misstatement of law was egregious enough to warrant a reversal of a murder conviction because it implicated the mens rea requirement of the crime. The court found that the prosecutor misstated the law which could have “led some jurors to believe they could not consider the victim’s consenting behavior,” even though the jury instructions were accurately presented. The court feared that the instructions, however, did not go far enough to cure the inaccurate closing argument by the prosecutor. The court emphasized that the intent statement made by the prosecutor was problematic because “it effectively forbids the jury from considering certain evidence, rather than merely telling the jury which elements it must find and how to weigh the evidence.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Williams_No_123029_Consolidated_with_133058_2016_?1474479965

Restitution Allowed to be Condition of Supervised Release

Restitution can have a punitive effect, but it has a primarily remedial and compensatory effect that does not violate excessive punishment under the Eighth Amendment

United States v. Alvarez, 2016 BL 286186, 9th Cir., No. 14-50506, 8/1/16.

   The Ninth Circuit found that restitution as a condition of a supervised release is not excessive under the Eighth Amendment. The defendant claimed that restitution paid towards to a car rental agency after damaging one of their vehicles, was excessive because the restitution was part of his punishment. The court noted that there may be a “secondary punitive” effect of paying restitution, but its effect is primarily remedial and compensatory. Without being punishment, the judge can set the restitution payments and without the aid of the jury as trier of fact.

http://www.bloomberglaw.com/public/document/United_States_v_Alvarez_No_1450506_2016_BL_286186_9th_Cir_Sept_01.

Restrictions Attached to Bond Considered “Continuing Seizure”

A woman is allowed to pursue a malicious prosecution claim for her bond restrictions after being required to travel monthly to every pre-trial meeting because it was “continuing seizure”

Black v. Montgomery County, 2016 BL 282138, 3d Cir., No. 15-3399, 8/30/16.

   The Third Circuit held that a woman was under a constitutionally significant restraint because of her bond requirement that she attend every pre-trial hearing, even though she lived across the country. The woman was out on a $50,000 bail but was required to fly monthly to attend every court proceeding for a year or face having her bond forfeited in its entirety. The court found that this constituted a seizure. The court based their decision on a plurality concurrence in Albright v. Oliver, which opined that the requirement for a defendant to appear in court for various reasons could constitute a seizure if there were “constitutionally significant restraints.”

http://www.bloomberglaw.com/public/document/Black_v_Montgomery_County_No_153399_2016_BL_282138_3d_Cir_Aug_30_.

Medical Marijuana Card Bars Gun Ownership

Second Amendment does not protect gun ownership by people with medical marijuana cards, even though they may not necessarily be using any illegal drugs

Wilson v. Lynch, 2016 BL 2842009th Cir., No. 14-15700, 8/31/16.

   The Ninth Circuit held that a woman possessing a medical marijuana card can be prohibited from purchasing guns because of marijuana’s status as an illegal drug. Although the woman obtained the registry card to “convey a message in support of the medical use of marijuana,” she may still not purchase a gun. Traditionally, users blocked from purchasing a gun include unlawful drug users, convicted felons, or mentally ill persons. The court found, however, the prohibition from purchasing a gun while just having a medical marijuana card poses only a “moderate collateral burden” under intermediate scrutiny. The court noted that the plaintiff could minimize these burdens by surrendering her card, freeing her up to purchase a weapon.

https://www.bloomberglaw.com/public/desktop/document/Wilson_v_Lynch_No_1415700_2016_BL_284200_9th_Cir_Aug_31_2016_Cour?1474475746

Prosecutor Baiting a Mistrial Bars Any Future Retrial for the Same Crime

After making flagrant statements at trial in an attempt to provoke a mistrial, a prosecutor created a double-jeopardy bar against retrying the same defendant

State v. Zisa, N.J. Super. Ct. Law Div., No. 10-10-01812-I, 8/23/16.

   The New Jersey Supreme Court found that purposefully unprofessional conduct on behalf of the prosecution team in a criminal trial in an attempt to bait a mistrial bars a retrial of a defendant. This case follows a similar line of cases stemming from Oregon v. Kennedy, which barred retrials after a successful defense motion for a mistrial if the defendant could show that the prosecutor in the case purposefully provoked the defense to make the mistrial motion in the first place.
 

   The court reached its conclusions because the prosecutor continuously made inadmissible, improper, and prejudicial statements about the evidence and facts about a state witness, even though it was unsubstantiated and inadmissible. The court said, “It strains credulity that such a seasoned prosecutor, with years of trial experience, could be so ignorant to the rules of evidence.” Additionally, the court noted the prosecutor’s unusual ambivalence towards the five mistrial motions made by the defense. 
 

http://src.bna.com/ibq

Equal Justice Protection Threatened by Bail Policies

A circuit court has held that keeping low-risk defendants in jail that are unable to pay bail until trial “has become a threat to equal justice under the law”

Curry v. Yachera, 2016 BL 286194, 3d Cir., No. 15-1692, 9/1/16.

   The Third Circuit held that a no contest plea given by a defendant held in jail bars him from seeking a claim for malicious prosecution. The dismissal, however, noted that holding low-risk defenders in jail until their court date threatened equal justice. The defendant was arrested after falsely returning $130 of items to Wal-Mart, later being held in jail for two months because he could not make the $20,000 bail that was set. The defendant then made his no contest plea, which released him from jail but only after losing his job and missing the birth of his first child.

   The court affirmed the district court’s dismissal with a modification, but it went further and espoused hope that bail reform would be forthcoming. The court stated, “It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail…Further, those unable to pay who remain in jail may not have the ‘luxury' of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.”


http://www.bloomberglaw.com/public/document/Curry_v_Yachera_No_151692_2016_BL_286194_3d_Cir_Sept_01_2016_Cour.

Cockfighting Is Not Considered a Per Se Crime of Moral Turpitude

A misdemeanor conviction for cockfighting does not necessarily rise to the level of a crime of moral turpitude that would block an immigrant from contesting his removal from the United States

Ortega-Lopez v. Lynch, 2016 BL 273130, 9th Cir., No. 13-71127, 8/23/16.

   The Ninth Circuit overturned the Board of Immigration Appeals in its determination that cockfighting categorically falls into crimes of moral turpitude, based on actions that involve “base and depraved” conduct. Although cockfighting is outlawed everywhere in the U.S., crimes of moral turpitude must involve harm towards someone or conduct that impacts a protected class of victims. It was noted that cockfighting is legal in Guam, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands.

http://www.bloomberglaw.com/public/document/OrtegaLopez_v_Lynch_No_1371127_2016_BL_273130_9th_Cir_Aug_23_2016.

Right-To-Know Law Allows Public to View Annulled Prosecution

After an annulment of a prosecution that ended in acquittal, the public still has the right to view and access records from the case surrounding the arrest and prosecution of a former defendant

Grafton Cty. Attorney's Office v. Canner, 2016 BL 272988, N.H., No. 2015-0536, 8/23/16.

   The New Hampshire Supreme Court ruled that the state’s right-to-know law allows citizens to view the records from an annulled prosecution that ended in acquittal. The plaintiff argued that his records should be exempt from the law because an annulment treats a former defendant “in all respects” as if he was never arrested, convicted, or sentenced under state law. The court responded saying that the purpose of the annulment statute was to give a person a new start, free from stigma, not “conceal the fact that [an arrest] occurred.” Moreover, the court added that it would be “Orwellian” to require the state to deny an existence of any prosecution file.

http://www.bloomberglaw.com/public/document/Grafton_Cty_Attorneys_Office_v_Canner_No_20150536_2016_BL_272988_.

Ohio: Juvenile Adjudication Cannot be used as Priors in Adult Sentencing

Ohio joins a number of jurisdictions preventing juvenile adjudications to be used as prior convictions during sentencing for adults because it violates due process principals

State v. Hand, 2016 BL 276326, Ohio, No. 2014-1814, 8/25/16.

   The Ohio Supreme Court held that a state statute allowing juvenile convictions to count as priors during sentencing as an adult was unconstitutional under Apprendi v. New Jersey and its line of case law. It found that such statutes violate due process requirements because there is not a right to a jury in juvenile cases. The supreme court followed Apprendi, finding that a right to a jury trial is required because “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

   While many federal circuit courts have issued opinions regarding this issue, finding that juvenile crimes can be used to enhance subsequent adult sentences under the Armed Career Criminal Act, state supreme courts are divided on the same issue. Ohio joins the minority of jurisdictions that do not enhance sentences based on juvenile adjudication.

http://www.bloomberglaw.com/public/document/State_v_Hand_2016Ohio5504_Ohio_Aug_25_2016_Court_Opinion.

License Plates from States with Legal Weed Not Enough for Stop and Search

Stopping a car with tags from Colorado was not enough to create reasonable suspicion to stop and search the car for illicit material

Vasquez v. Lewis, 2016 BL 273055, 10th Cir., No. 14-3278, 8/23/16.

   The Tenth Circuit found that the stopping of a car in Kansas with temporary tags from Colorado was not enough to create reasonable suspicion in holding and searching the car. The officer’s stated primary justification for stopping and calling in a drug-sniffing dog was the Colorado tags on the vehicle. The court opined that detaining someone because of their residency is improper, especially taking into consideration that 25 states have legalized medical or recreational marijuana, which cannot support reasonable suspicion.

   The officers cited other factors for the search, including the driver’s nervousness, late night travel on a highway known to be a “drug corridor,” and a blanket covering items in the back seat. The court found, however, this evidence was “too innocuous” to add any weight to the officer’s claim. “Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible,” stated the court.

   The opinion is of note for its potential of breathing new life in 42 U.S.C. § 1983 claims. In the dissenting opinion, the ruling was called a “close call,” arguing that officers should be given the benefit of the doubt due to the totality of circumstances.

http://www.bloomberglaw.com/public/document/Vasquez_v_Lewis_No_143278_2016_BL_273055_10th_Cir_Aug_23_2016_Cou.

Border Search Okay, Even If Driver Never “Crossed” Border

After making a U-turn at a border crossing, the warrantless border search was constitutional because the subjective intent of the driver did not matter

D.E. v. Doe, 2016 BL 276645, 6th Cir., No. 15-2128, 8/26/16.

   The Sixth Circuit held that border patrol agents did not conduct an illegal warrantless search at a border crossing, even if the driver did not actually cross the border. The driver, after mistakenly entering a border crossing into Canada, made a U-turn at the station and was stopped by U.S. border patrol agents. After being stopped, the driver's vehicle was searched and drugs were discovered in the vehicle. The court upheld the search, clarifying  that the subjective intent of the driver, whether wanting to cross the border or not, does not have any impact on the broad search powers at an international border crossing setting. It was irrelevant that the driver did not want to cross the border.

https://www.bloomberglaw.com/public/desktop/document/DE_v_Doe_No_152128_2016_BL_276645_6th_Cir_Aug_25_2016_Court_Opini?1472748746

Sex Offender Registration Penalty Changes Cannot Affect Offenders Retroactively

Amendments added to Michigan’s Sex Offender Registration Act that retroactively apply to sex offenders violates their constitutional right against ex post facto punishments

Does v. Snyder, 2016 BL 276689, 6th Cir., No. 15-1536, 8/25/16.

   The Sixth Circuit ruled that Michigan’s Sex Offender Registration Act (SORA) and its new amendments could not retroactively affect offenders in the state because it would violate the Constitution’s Ex Post Facto Clause. The clause prevents the changing of punishment for actions that have already happened, after the fact. While civil and regulatory laws like SORA cannot violate the Ex Post Facto clause on their own, if a plaintiff shows there is a criminal penalty then the clause comes into play. The court found that certain amendments in the past ten years have changed how the state “imposes punishment,” rather than affecting civil penalties, thereby violating the Ex Post Facto Clause.

   The court made sure to distinguish its decision from Alaska’s sex offender registry law, which was upheld by the United States Supreme Court. The circuit court found that SORA went beyond what was decided by the Supreme Court because it regulated where “registrants may live, work, and ‘loiter.’” The restrictions put significant burdens on the registrants, not the “minor and indirect” effects found in the Alaskan registry.

http://www.bloomberglaw.com/public/document/Does_v_Snyder_No_15153623462486_2016_BL_276689_6th_Cir_Aug_25_201.

Driver’s Consent to Search a Car Does Not Give Consent to a Passenger Frisk

A Terry Frisk of a passenger in a vehicle must be associated with a legitimate concern for the officer’s safety, not because consent was given to search a vehicle 

Sellman v. State, 2016 BL 274588, Md., No. 84, 8/24/16.

   The Maryland Court of Appeals ruled that a frisk of a passenger without a reasonable suspicion that the passenger posed a danger is unconstitutional under the Fourth Amendment. Even when consent was given to search the car, the permission did not extend to a search of the passengers without reasonable suspicion that they were armed and dangerous.

   During argument, the state contended that the high crime area of the stop and the time of night warranted a frisk, citing that residents have complained about numerous thefts at the apartment complex and the passengers appeared overly nervous, providing conflicting statements. The court disagreed with this argument, however, finding that generalized concerns were not enough for reasonable suspicion. “The officers did not observe furtive gestures, evasive maneuvers, bulges, bags or containers, or any instruments associated with the suspected crime of the theft, i.e., theft of property from cars.”

http://www.bloomberglaw.com/public/document/Sellman_v_State_No_84_2016_BL_274588_Md_Aug_24_2016_Court_Opinion.

Police Frisk During the Service of a Civil Writ for Child Support Okay

During the service of a writ of child support, the police executing the writ may frisk and search the person in the writ for weapons because of the search-incident-to-arrest exception

United States v. Phillips, 2016 BL 273057, 11th Cir., No. 14-14660, 8/23/16.

   The Eleventh Circuit ruled that a frisk during the service of a writ of child support is okay through the the Fourth Amendment exception allowing for a search-incident-to-arrest. The court held that under Florida law, the writ of attachment in this case is similar to a bench warrant, which allows police to pick up people to bring them into court. The court stated, “Because bench warrants and writs of bodily attachment for unpaid child support are virtually indistinguishable, the long historical pedigree of the former convinces us that the latter also passes constitutional muster.”

   This issue initially arose because the defendant, when searched, was found to have a gun on his person and was later convicted of being a felon in possession of a firearm.

http://www.bloomberglaw.com/public/document/United_States_v_Phillips_No_1414660_2016_BL_273057_11th_Cir_Aug_2.

Conversations from Facebook Admissible in Child Pornography Case

“Facebook Chat” messages are admissible in court when they are properly authenticated using extrinsic evidence

United States v. Browne, 2016 BL 276680, 3d Cir., No. 14-1798, 8/25/16.

   The Third Circuit held that messages from “Facebook Chat” are admissible in court when they are authenticated using extrinsic evidence. The government at trial argued that the evidence was self-authenticating under the “business records” rule under the Federal Rules of Evidence 902(11). Although the messages were later certified by a “Facebook records custodian,” the business records exception could not apply because Facebook did not “purport to verify or rely on the substantive contents of the communications in the course of its business.” Instead, the records expert could only testify to the accuracy of the Facebook accounts at a particular time, not to the content of the messages.

   Although the business records exception did not apply, extrinsic evidence presented in court was “more than sufficient extrinsic evidence to link” the defendant to the explicit messages.

http://www.bloomberglaw.com/public/document/United_States_v_Browne_No_141798_2016_BL_276680_3d_Cir_Aug_25_201.