August-September, 2013

Third Circuit:  Prior Drug Use Not Admissible to Establish Knowledge or Intent

The Third Circuit Court of Appeals held that Fed. Rule 404(b) does not allow the government to introduce a defendant’s prior convictions for simple possession of cocaine to prove he knew that the parcel in his car was a brick of cocaine absent any proof that the drugs were similar in appearance or form.  The Court found that the “other crimes” evidence failed the relevancy test.  The Court stated that even though it had held that some prior drug convictions are admissible under 404(b), it has never held that a possession conviction is admissible to show knowledge or intent in a distribution trial.  The Court noted that objects in greater quantities often have an appearance or smell of their own; just because the defendant at one time used cocaine in some unknown form did not necessarily mean that he knew what the drug looks like when packaged for large-scale distribution.  The Court also said that a prior conviction for possessing drugs by no means suggests that the defendant intends to distribute them in the future.  United States v. Davis, ___F.3d.___(3d Cir. #12-1486, 08-09-13); full text at 3d_Cir_Aug_09_2013.

Ninth Circuit:  Failure to Object Could Not Have Been Trial Strategy

The Ninth Circuit Court of Appeals held that the California Court of Appeals’ decision rejecting a claim of ineffective assistance of counsel was clearly erroneous and represented an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).  The only witness at the petitioner’s murder trial who claimed to be able to identify petitioner as the shooter refused to take the oath when he testified.  Trial counsel did not object, and cross-examined the witness.  The next day, counsel’s objection was overruled on the basis of established waiver caselaw.  The state court found that the attorney tactically decided not to object following the witness’s refusal to take the oath because he believed doing so would have prompted the witness to agree to take the oath.  The Ninth Circuit found this factual determination to be unsupported by the record, and found that the state court decision was contrary to the treatment of tactical decisions under Strickland.  Griffin v. Harrington, ___F.3d.___(9th Cir. #12-57162, 08-16-13); full text at

Iowa:  Lengthy Sentences for Juvenile Offender Cruel and Unusual

The Iowa Supreme Court made clear that the state constitution’s restrictions on the length of sentences for defendants who committed their crimes before their 18th birthdays go beyond the limits on sentences of life imprisonment without parole that the U.S. Supreme Court announced in Graham v. Florida, 560 U.S. 48 (2010) and Miller v. Alabama, 91 CrL 413 (2012).  The Court noted that the U.S. Supreme Court left open the question of whether the Eighth Amendment’s restrictions on sentences for young offenders apply to a sentence of less than life that is the functional equivalent of LWOP when the defendant’s life expectancy is considered.  The Iowa Court ruled that a sentencing judge should recognize that a lengthy prison sentence without the possibility of parole is appropriate, if at all, only in rare or uncommon cases.  The Court concluded that Miller’s principles are fully applicable to a lengthy term-of-years sentence because an offender sentenced to a lengthy term of years should not be worse off than an offender sentenced to life in prison without parole, who has the benefit of an individualized hearing under Miller.  The Iowa Court also decided that Miller applies where a lengthy sentence is the result of aggregate sentences imposed upon multiple convictions.  The Court recognized that a minimum of 52 years (Pearson) or 69 years (Null) imprisonment is not technically a life-without-parole sentence, but decided that such a lengthy sentence imposed on a juvenile is sufficient to trigger Miller-type protections.  State v. Null, Iowa (#11-1080, 08-16-13); State v. Pearson, Iowa (#11-1214, 08-16-13); full text at and

Ninth Circuit:  Warning Targets About FBI Investigation Not Obstruction

A private detective did not violate the federal statute that makes it a crime to obstruct, influence, or impair an “official proceeding” by leaking information about an FBI investigation of the Hell’s Angels motorcycle club, held that Ninth Circuit Court of Appeals.  The Court considered the relevant definitions of “official proceeding” and concluded that Congress contemplated a technical meaning for the term that connotes formal legal action: business done either in court, under the authority of a court, or at a court’s direction.  The Court further reasoned that the statute refers to proceedings “before a federal agency, which would be an odd choice of phrase if it were refereeing to an agency’s initiation of a criminal investigation.  The Court rejected opinions of the D.C., Second, and Fifth Circuit Courts of Appeal to the contrary.  United States v. Ermoian, ___F.3d.___9th Cir. #11-10124, 08-14-13); full text at 9th_Cir_Mar_18_2011_Court_Do.

Tenth Circuit:  Incomplete Advice on Appeal Rights Voids Plea

The Tenth Circuit Court of Appeals held that the defendant did not knowingly and voluntarily plead guilty where the trial court advised him he would still have the right to appeal but failed to warn him that this would be a limited right.  The trial court did not tell the defendant that his unconditional plea would prevent him from appealing the denial of his motion to suppress.  The Tenth Circuit made it clear that it was not ruling that trial judges must advise a defendant about his appeal rights following the entry of an unconditional plea, but if a judge elects to discuss the right to appeal, it “materially misinforms” the defendant if it does not also ensure that the defendant understands that the plea may limit the appeal in significant ways.  The Court also urged the federal rules committee to consider revising the rules to require such advice.  United States v. Avila, ___F.3d.___(10th Cir. #12-3047, 08-21-13); full text at BL_222213_10th_Cir_Aug_21_20.

Maryland:  Prosecutor’s Mischaracterization of DNA Evidence Warrants New Trial

The trial court abused its discretion by giving a curative instruction rather than granting a mistrial after the prosecutor mischaracterized the statistical significance of DNA evidence in a murder case, held the Maryland Court of Appeals.  The expert witness testified that the odds were one in 212 trillion that a black man other than the murder victim contributed a single DNA sample found on the headrest of a truck.  The expert also testified that a sample from the passenger armrest contained four people’s DNA and that one of three contributors had a profile that matched the defendant at 11 of the 15 locations.  Because the odds of another randomly selected black man being a contributor were one in 172, the defendant could not be excluded as a source.  Defendant argued that the perpetrator was a cousin whose DNA was not profiled.  The prosecutor told the jury that the DNA testimony established that the defendant was one of the contributors, that “science says” the defendant was there, and that one in 172 was no less strong that one in 212 trillion.  The Court of Appeals found that the prosecutor went too far in suggesting that the defendant’s DNA matched the DNA from the armrest to the same extent that the victim’s DNA matched the DNA from the headrest.  The court’s general cautionary instruction did not suffice to cure the potential prejudice.  Whack v. State, Md. (#86, 08-21-13); full text at

North Carolina:  Social Media Ban on Sex Offenders Unconstitutional

The North Carolina Court of Appeals held that a state law barring registered sex offenders from accessing social networking sites like Facebook and Twitter is unconstitutionally vague on its face and overbroad as applied.  The Court found that the law is not narrowly tailored to achieve the government’s stated interest in protecting children.  The statute applied to all registered offenders, regardless of whether their underlying offense involved children.  The Court further found that the law is unconstitutionally overbroad and vague because it does not give a person of ordinary intelligence fair notice of what is prohibited.  Although one would likely interpret the statute as prohibiting access to mainstream social networking sites, the ban is much more expansive and includes sites such as because it has message boards, and the law could also be interpreted to ban sites such as Google and Amazon because these sites contain subsidiary social networking pages.  State v. Packingham, N.C. Ct. App. (#COA12-1287, 08-20-13); full text at

Eleventh Circuit:  Translator Who Interpreted What Accused Told Police Must be Produced for Cross Examination

The Eleventh Circuit Court of Appeals held that the Sixth Amendment gives defendants a right to cross-examine at trial the interpreters who translated their statements to police.  The defendant spoke Creole and no English.  The Court reasoned that, when the interpreter told the officer what the defendant said, he was the declarant of the English language statements that the officer testified to at trial.  The Eleventh Circuit found unpersuasive the Ninth Circuit’s use of the language conduit theory and its underlying factual considerations to conclude that the interpreter and defendant are identical for testimonial purposes.  When interpreters transfer meaning from one language into another, there is not a “one-to-one correspondence” between words or concepts in different languages, according to publications of the National Association of Judiciary Interpreters and Translators.  The Court found support in the Supreme Court’s holding in Bullcoming v. New Mexico, 89 CrL 533 (2011), which required the certifying analyst to be subject to cross examination.  Treating the officer as a “surrogate” for the interpreter does not satisfy the constitutionally protected right to cross-examination of the interpreter, the Court said.  United States v. Charles, ___F.3d.___(11th Cir. #12-14080, 07-25-13); full text at

Nebraska:  Rules for Sending Demonstrative Exhibit Into Jury Room

The Nebraska Supreme Court found that it is an abuse of discretion for a trial judge to send a demonstrative exhibit to the jury for use in deliberations without first weighing potential prejudice against usefulness and using limiting instructions and other safeguards to prevent prejudice.  At issue was a chart prepared by the prosecutor showing which charges were against which victims on which dates.  The evidence rule provides only general guidance, and the courts have never adopted a uniform approach.  The Court considered the types of potential prejudice, including that jurors might assume that demonstrative exhibits are primary proof, or that jurors will focus on the summarized portions of evidence or focus more heavily on the evidence of the party that submitted them.  A trial judge must exercise discretion to craft jury inclusions advising the jury of the limited purpose for which the exhibits should be employed.  Other safeguards should also be considered, such as allowing the opposing party to prepare its own exhibit.  State v. Pangborn, Neb.(#S-12-941, 07-26-13); full text at __Matthew_L_Pangborn_Appellant_286_Neb

Seventh Circuit:  Appellate Counsel’s Bad Choice of Issues Justified Habeas Relief

The Seventh Circuit Court of Appeals held that the state court’s decision that the appellate issue not raised by appellate counsel was questionable was not entitled to deference in the Circuit Court’s review of whether the attorney’s choice of claims constituted ineffective assistance of counsel.  Appellate counsel on direct appeal raised a sufficiency of evidence claim instead of the error raised by trial counsel – untimely amendment of the information by the prosecutor.  The state court found appellate counsel was not ineffective because the amendment issue was weak and unsupported by caselaw.  The Seventh Circuit emphasized that what matters is not the state court’s determination of the merits of the petitioner’s state law claim at the time, but the strength of that claim relative to the weaker claim that counsel chose to pursue.  The Court called the sufficiency argument “a certain loser.”  The state’s argument that this kind of comparative assessment is improper would foreclose federal review of almost any ineffectiveness claim resting on an attorney’s mishandling of a state-law issue, no matter how deficient the attorney’s performance, the Court said.  The Court found that the state appellate court’s decision was an unreasonable application of Supreme Court precedent and that the defendant was prejudiced.  Shaw v. Wilson, ____F.3d.___(7th Cir. #12-1628, 07-24-13); full text at

Fifth Circuit:  Gang Affiliation Testimony Inadmissible

The Fifth Circuit Court of Appeals held that testimony presented at the trial of a defendant charged with felon in possession of a firearm - that the defendant was a current gang member and that members of the gang usually carried guns - constituted inadmissible propensity evidence.  The trial court allowed the testimony as evidence of motive for carrying the gun but did not give a limiting instruction to the jury.  The Court concluded that the evidence could only have indicated to the jury that the defendant had a bad character.  The Court pointed out that if the testimony had been limited to the facts that the defendant had a gang tattoo and that he was listed on the police gang database, it would have been admissible as evidence uncovered during the traffic stop.  However, the officer’s additional testimony about current gang membership and the connection between that and the motive for possessing the gun crossed the line, the Court said.  United States v. Hamilton, ___F.3d.___(5th Cir. #12-20250, 07-11-13); full text at _No_1220250_2013_BL_183959_5th_Cir_July_1.

New Jersey:  Adverse Inference Instruction Where Police Destroyed Interview Notes

The New Jersey Supreme Court found that the prosecutor violated its post-indictment discovery obligations when a police investigator destroyed the notes he had taken during a two-hour interview with the defendant.  The officer asked the defendant open-ended questions during a two-hour “pre-interview,” and used his notes to conduct a 15-minute, taped interrogation.  The Supreme Court emphasized that the state’s obligation to preserve interview notes was well-established, even without a specific request.  The Court stated that contemporaneous notes of a defendant’s own statements are even more important that witness interview notes.  By destroying his notes, the officer “made himself the sole judge of what actually was contained in his contemporaneous notes,” and made it possible to present to the jury “a neat and coherent narrative of the events,” the Court said.  Failure to give the requested instruction that the jury could draw an adverse inference from the officer’s destruction of the notes was error capable of producing an unjust result.  The officer’s credibility was critical, and the notes would have helped defense counsel undermine the investigator’s testimony, the Court concluded.  State v. Dabas, N.J. (#A-109-11, 07-30-13); full text at

Seventh Circuit:  Habeas Petitioner’s State Trial Judge Cannot Preside Over Federal Petition

A federal district judge who had presided over a defendant’s first criminal trial when she was a state trial court judge must recuse herself in the defendant’s subsequent federal habeas corpus proceedings involving the defendant’s second trial, according to the Seventh Circuit Court of Appeals.  The Court noted that a federal court’s review of state proceedings on habeas review is similar to appellate review and that in this case, the district judge “effectively would be reviewing an issue and matter over which she had already passed judgment as a state court judge.”  The judge’s impartiality might be questioned, even though she dismissed the petition on procedural grounds (that it was time-barred).  A review of the claims on their merits might require the judge to review the suppression motion involving the same stop and search involved in the first trial, which the judge had denied.  This could seriously affect the fairness and public reputation of the judicial proceedings and create an appearance of impropriety, the Court said.  Weddington v. Zatecky, ___F.3d.___(7th Cir. #11-3303, 08-01-13); full text at Zatecky_Docket_No_1103303_7th_Cir_Oct

Ninth Circuit:  Prosecution Must Reveal Canine’s Past Mistakes

The Ninth Circuit Court of Appeals held that the state’s failure to disclose a police canine’s history of making mistaken scent identifications violated the petitioner’s rights under Brady v. Maryland, 373 U.S. 83 (1963).  Prosecutors presented evidence that the dog, Reilly, had indicated that petitioner’s scent was present in the killer’s car just before the shooting.  In a prior trial, the prosecutor had stipulated to Reilly’s two prior mistaken identifications and the judge in that case had excluded the dog’s scent identification.  The Ninth Circuit held that a reasonable state court would have concluded not only that the suppression of the dog’s record violated Brady, but also that there was a reasonable probability that the jury would have reached a different verdict if the scent identification had not been presented to the jury, or had been impeached by the evidence of the canine’s earlier mistaken identifications.  The Court pointed to the weaknesses in the prosecutor’s case and the strength of petitioner’s evidence that someone else committed the crime.  Aguilar v. Woodford, ___F.3d.___(9th Cir. #09-55575, 07-29-13); full text at

D.C. New York:  City Liable for NYPD’s Racial Profiling in Terry Stops

The United States District Court for the Southern District of New York relied on a statistical analysis of investigative detentions conducted by New York City police officers in finding that the city is liable in a civil rights class-action lawsuit for the officers’ unconstitutional stops and frisks.  The Court held that the plaintiffs had shown that the NYPD had engaged in systemic, widespread stops and frisks of blacks and Hispanics in the absence of reasonable suspicion, and that the NYPD has an unwritten policy of targeting racially defined groups for stops.  “[B]lacks and Hispanics are more likely to be stopped than whites within precincts and census tracts, even after controlling for the racial composition, crime rate, patrol strength, and various socioeconomic characteristics of the precincts or census tracts where the stops take place,” the Court said.  Among other injunctive relief, the Court ordered the appointment of an independent monitor and the institution of “a community-based joint remedial process” to draft reforms.  The six- to nine-month remedial process will be paid for by the city and be overseen by a facilitator to be named by the Court.  Floyd v. City of New York, S.D.N.Y. (#08 CIV 1030 (SAS), 08-12-13); full text at et_al_Docket_No_108cv0134_SDN/1.

Eighth Circuit:  Sex Offender Moving to Foreign Country Not Required to Give Notice to Home State

A defendant did not violate the federal Sex Offender Registration and Notification Act when he left his home in Missouri and moved to the Philippines without notifying state authorities that he had a new residence, according to the Eighth Circuit Court of Appeals.  The government acknowledged that he did not have to register in the Philippines but argued that he violated the statute requiring him to give notice that he changed his address.  The Court disagreed, reasoning that once the defendant left the country, he did not trigger any reporting requirement because he was no longer a Missouri resident.  Although it is understandable that law enforcement officials would like to know if a sex offender has left the country, Congress did not give SORNA extraterritorial effect, the Court held, and when a sex offender leaves the country, he no longer poses an immediate threat to the safety of children in the United States.  United States v. Lunsford, ___F.3d.___(8th Cir. #12-3616, 08-05-13); full text at

Ninth Circuit:  Graham Applies Retroactively on Collateral Review

The Ninth Circuit Court of Appeals held that the Eighth Amendment ban on mandatory life imprisonment without parole for juveniles in non-homicide cases, announced by the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), applies retroactively on collateral review.  The Court held that, although Teague v. Lane, 489 U.S. 288 (1989), generally forbids giving retroactive effect to new rules of criminal procedure, Graham qualifies for one of the exceptions: when the new rule prohibits a certain category of punishment for a class of defendants based on their status or offense.  The Court also rejected the argument that the sentence imposed in this case, 254 years in prison for a string of sexual assaults, was not technically life without parole because the petitioner was sentenced to a term of years.  For all practical purposes, the petitioner’s sentence was materially indis-tinguishable from life without parole because he would not be eligible for parole for more than a century.  Like the defendant in Graham, the petitioner is guaranteed to die in prison regardless of any remorse, reflection, or growth, the Court said.  Moore v. Biter, ___F.3d.___(9th Cir. #11-56946, 08-07-13); full text at 1156846_9th_Cir_Oct_21_2011_C

Sixth Circuit:  Anonymous Call to 911 Inadmissible Hearsay

The Sixth Circuit Court of Appeals held that a police officer’s testimony repeating the verbatim, detailed description provided by an anonymous 911 caller was inadmissible hearsay.  The caller said a black man with a “poofy” afro, wearing a blue shirt and riding a bicycle, was carrying a pistol in the neighborhood.  The Court rejected the government’s argument that the testimony was admissible to give context and background for the jury to understand why the officers detained the defendant.  The Court found that there was no need to relate the anonymous 911 caller’s description of the perpetrator because the officers’ state of mind was never at issue.  Consequently, the hearsay testimony went directly to the key issue of whether the defendant possessed a gun.  A less-detailed statement indicating that the police received a 911 call, without details about the caller’s description, would have avoided the prejudice while still ensuring that the jury was given the background information needed to understand why the officers stopped the defendant.  United States v. Nelson, ____F.3d.___(6th Cir. #12-5477, 08-07-13); full text at 125477_6th_Cir_Aug_07_2013_Court_Opinio.

Seventh Circuit:  Lack of Library Access ay Toll One-Year Filing Deadline

A petitioner’s lack of access to the prison law library can justify extending the one-year deadline for filing a petition for writ of habeas corpus, according to the Seventh Circuit Court of Appeals.  28 U.S.C. 2255(f)(2) states that prisoners who fail to file a timely petition due to a government-initiated “impediment” must be given one year from the date the impediment was lifted.    The Court agreed with petitioner that lack of library access may qualify as an impediment and reversed the district court’s denial of petitioner’s claim.  The Court rejected the government’s argument that since prisoners are supposed to argue only facts, no law, in their petitions, lack of library access never resets the clock.  The Court pointed out that if the prisoner selects a “bad legal theory” it could doom his chances for success.  The lack of library access does not automatically qualify as an impediment, however, and the Court remanded for an evidentiary hearing.  Estremera v. United States, ___F.3d.___(7th Cir. #12-2043, 07-30-12); full text at _Cir_Aug_06_2013_Court_Opinion.