October, 2013

Ninth Circuit: Probable Cause Required for Parolee Search

The Ninth Circuit Court of Appeals held that a law enforcement officer may not conduct a warrantless parole search of a residence unless the officer’s belief that the parolee lives at the location rises to the level of probable cause. The parolee challenged a search of his girlfriend’s apartment and the district court found that narcotics investigators who searched the apartment did not have probable cause to believe he was living there. The Ninth Circuit found that the U.S. Supreme Court’s decision in Samson v. California, 547 U.S. 843 (2006), did not strip parolees completely of Fourth Amendment protection. The Court in Samson found the existence of a parole condition subjecting parolees to warrantless searches diminished the parolee’s reasonable expectations of privacy. The Ninth Circuit found that Samson does not change the requisites for raising a challenge to a substantively invalid search. The probable cause issue concerns a “precondition for a search pursuant to a parole condition – namely, warrantless entry into a particular residence – not the propriety of the parole search itself,” the Court said. United States v. Grandberry, ___F.3d.___(9th Cir. #11-50498, 09-17-13); full text at http://www.bloomberglaw.com/public/document/USA_v_Lambert_Grandberry_Docket_No_1150498_9th_Cir_Nov_ 30_2011_Co.

Maryland: Constitutional Right to Appointed Counsel When Bail Set

Relying on the procedural due process component of the Maryland Declaration of Rights, the Maryland Court of Appeals held that indigent arrestees have a constitutional right to the appointment of counsel at an initial appearance at which a commissioner will set bail. The Court interpreted caselaw in the state as establishing a due process right to the appointment of counsel in any proceeding at which an indigent individual faces the possibility of losing his or her liberty. Unless released on personal recognizance or on bail, the defendant will remain incarcerated until a bail review hearing before a judge, the Court emphasized. The availability of appointed counsel at the bail review hearing does not cure the violation of procedural due process rights, including the right to counsel, at the initial proceeding, the Court held. DeWolfe v. Richmond, 2013 BL 259242, Md. (#34, 09-25-13); full text at http://www.bloomberglaw.com/public/document/PAUL_DeWOLFE_in_his_ official_capacity_as_the_Public_Defender_fo.

Eighth Circuit: Mistake in Verdict Form and Decision to Poll Jury Constituted Plain Error

The Eighth Circuit Court of Appeals found plain error where a jury form lacked a place to indicate the verdict and the trial judge decided to poll the jurors instead. The judge noticed the mistake when the jurors came in to return their verdict and sua sponte polled the jurors twice to confirm that they had reached a unanimous guilty verdict. Later, however, the trial court granted the defendant’s motion for new trial. The Eighth Circuit upheld the trial court’s decision to grant a new trial. Although Fed. R. Crim. P. 31(d) states that a trial court may poll the jury after a verdict is returned, there is no procedure for the jury to return a verdict through polling by the court. Rather, the purpose of polling is to allow each juror to confirm his or her agreement with the verdict returned by the foreman, the Court said. There is a potential for coercion in the context of a deadlocked jury, and that concern applies under the circumstances of this case as well, the Court held. The procedure was also a significant departure from traditional practice. United States v. Amaya, 2013 BL 254115, ___F.3d.___(8th Cir. #12-1334, 09-23-13); full text at http://www.bloomberglaw.com/public/document/United_States_v_Amaya_ No_123134_2013_B full text at http://www.bloomberglaw.com/public/document/L_254115_8th_Cir_Sept_23_20.

Ninth Circuit: Details in Warrant Affidavit Cannot Expand Scope of Limited Search

The Ninth Circuit Court of Appeals held that federal agents exceeded the scope of a search warrant authorizing the seizure of documents relating to suspected tax fraud when they rummaged through the defendant’s computer files to collect evidence that he cheated on his taxes to mask his financial support for terrorist groups. The defendant was the leader of a Saudi Arabian charity suspected of secretly funding Islamic militants. The warrant was expressly limited to evidence concerning the tax and currency reporting violations. The Court rejected the government’s claim that all the seized materials were relevant given the nature of the charges, emphasizing that it had never held that an affidavit could expand the scope of a warrant beyond its express limitations. To adopt the government’s approach would permit a “kitchen sink probable cause affidavit to overrule the express scope limitations of the warrant itself,” the Court said. The Court also found that a new trial was necessary because the government committed a Brady violation by withholding significant impeachment evidence about a key government witness. United States v. Sedaghaty, ___F.3d.___(9th Cir. #11-30342, 08-23-13; full text at http://www.bloomberglaw.com/public/document/United_States_v_Sedaghaty_No_1130342_ 2013_BL_225816_9th_Cir_Aug_2.

Second Circuit: Invocation of Fifth Amendment Rights Not Admissible to Prove Guilt

Relying on the Fifth Amendment, the Second Circuit Court of Appeals ruled that prosecutors are prohibited from proving defendants’ guilt with evidence that they invoked their right to counsel when confronted with a noncustodial, pre-Miranda interrogation. The Court cited cases in which the Supreme Court has held that the privilege against self-incrimination prevents prosecutors from commenting on a defendant’s decision not to testify at trial. The Court reasoned that “Use of a defendant’s invocation of the privilege imposes the same cost no matter the context in which that invocation is made.” Allowing a jury to infer guilt from a pre-arrest invocation of the privilege ignores the teaching that the protection of the Fifth Amendment is not limited to those in custody or charged with a crime, the Court said. Cases in which the defendant merely said nothing when questioned were distinguished from the case at bar, where the defendant invoked his Fifth Amendment rights by stating that he wanted a lawyer. United States v. Okatan, ___F.3d.___(2nd Cir. #12-1563-cr, 08-26-13); full text at http://www.bloomberglaw.com/public/document/United_States_of_America_v_Okatan_Docket_No_1201563_ 2d_Cir_Apr_17.

Seventh Circuit: Evidence that Broker Advised Lying in Mortgage Application Should Have Been Admitted

The Seventh Circuit Court of Appeals held that a couple charged with committing mortgage fraud by lying about their income on a loan application should have been allowed to present evidence that their broker assured them the falsehoods would not affect the bank’s decision to approve the loan. The couple had been denied a loan previously because of the husband’s bad credit rating, and the mortgage broker suggested that the wife apply as the sole borrower but present their combined income as her income, telling them that it was “perfectly legal.” The Court found that this evidence should have been admitted because, if believed, the jury might have been convinced that the defendants believed that combining their income on the “borrower’s income” line was exactly what the application called for, and that the defendants did not act knowingly to defraud the bank. If the loan applicant does not think his falsehood would influence the bank, it is unlikely that in making it he intended to influence the bank, the Court said. United States v. Phillips, ___F.3d.___(7th Cir. #11-3822, September 04, 2013); full text at http://www.bloomberglaw.com/public/document/USA/Lacey_Phillips_Docket_No_1103822_7th_ Cir_Dec_19_2011_Court_.

Fourth Circuit: U.S. Attorney Criticized for Withholding Evidence

Although the Fourth Circuit Court of Appeals affirmed a lawyer’s fraud-related convictions, the Court rebuked the U.S. Attorney’s Office for discovery abuse. The defendant’s post-conviction FOIA request revealed that exculpatory evidence was withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the prosecutor left uncorrected a prosecution witness’s false testimony, in violation of Giglio v. United States, 405 U.S. 150 (1972). The defendant also contended that there had been a pattern of similar prosecutorial misconduct in the North Carolina district. The Circuit Court was concerned about the U.S. Attorney Office’s unsatisfactory responses to its questioning concerning its conduct, and warned that if this sort of behavior continues in subsequent cases, the U.S. Attorney would be required to be present at oral argument to be questioned in person about the misconduct, and sanctions or disciplinary actions were also options. United States v. Bartko, ___F.3d.___(4th Cir. #12-4298, 08-23-13); full text at http://www.bloomberglaw.com/public/document/US_v_ Gregory_Bartko_Docket_No_1204298_4th_Cir_Apr_19_2012_Court_D.

DC Circuit: Right to Cross Examine Lab Analyst Who Created DNA Profile

The Court of Appeals for the District of Columbia held that the Sixth Amendment was violated when a government expert testified at a murder trial that there was a match between DNA profiles developed by other, nontestifying analysts. Courts in other jurisdictions are divided about whether to apply the United States Supreme Court’s split decision in Williams v. Illinois, 91 CrL 357 (2012) in this situation. (The plurality in Williams decided that testimony concerning a nontestifying expert’s conclusions was admissible because it was not offered for the truth thereof and because it was not testimonial.) The DC Court of Appeals decided that since the splintered decision in Williams created no new rule of law to be applied in the case at bar, it would apply pre-Williams case law, both from the Supreme Court and the DC Circuit, and concluded that the reports of the expert witness were admitted in violation of the confrontation clause. The Williams decision controls the admissibility of DNA evidence only in cases with identical facts, the Court decided. Jenkins v. United States, ___F.3d.___(D.C. Cir. #06-CF-1455, 09-12-13); full text at http://www.bloomberglaw.com/public/document/RAYMOND_JENKINS_ APPELLANT_V_UNITED_STATES_APPELLEE_No_06CF1455_20.

Ninth Circuit: Misleading Filing Deadlines in Magistrate’s Order Justified Equitable Tolling

The Ninth Circuit Court of Appeals found that a pro per habeas corpus petitioner, whose untimely filing resulted from his reasonable reliance on a magistrate judge’s order, was entitled to equitable tolling of the statute of limitations. The magistrate judge denied the original habeas petition, but granted extensions and set forth the deadline for filing the amended petition. The judge found the amended pleading untimely because it did not relate back to the original, timely petition because the original petition failed to set forth any claims for relief. The Ninth Circuit found that the petitioner premised his request to extend the time for filing the amended petition on the understanding that if the request were granted and he filed the amended petition by the new due date, the petition would be deemed timely. By granting the request and setting a new deadline, the magistrate communicated to the petitioner that his premise was accurate. Therefore, the magistrate judge’s order granting the extension request affirmatively misled him in the very manner required for equitable tolling. If the state intends to seek dismissal of such a petition as untimely, it has the responsibility to object to the extension of time, the Court added. Sossa v. Diaz, ___F.3d.___(9th Cir. #10-56104, 09-10-13); full text at http://www.bloomberglaw.com/public/document/Armando_Sossa_v_Ralph_M-Diaz_Docket_No_1056104_9th_ cir_Jul_12_201.

Second Circuit: Shackling Violated Right to Fair Trial

According to the Second Circuit Court of Appeals, a trial court erred when it forced a 35-year-old woman with no prior criminal history to wear visible restraints at her drug-smuggling trial without indicating why she needed to be shackled and whether there were less onerous ways to meet safety concerns. The policy in the trial court did not require judges to make a record when they ordered shackling on the recommendation of the U.S. Marshals Service. The Second Circuit found that this policy did not conform to clear U.S. Supreme Court and Second Circuit precedent. No physical restraints may be imposed unless the trial court finds on the record that they are a “necessary last resort,” the Court emphasized. The Court concluded that the cumulative effect of this and other errors denied the defendant a fair trial. Among the other errors, a police witness was allowed to give lay opinion testimony that exceeded what an average person could deduce from everyday experience, in violation of Fed. R. Evid. 701. United States v. Haynes, ___F.3d.___(2nd Cir. #12-626, 09-05-13); full text at http://www.bloomberglaw.com/public/document/United_States_v_HAYNES_No_12626cr_2013_BL_235742_2d_Cir_ Sept_05_2.