October-November, 2017

Tenth Circuit: Federal Law That Increased Minimum Sentence for Violation of Supervised Release Provisions Violated Fifth and Sixth Amendments

Defendant’s supervised release was revoked after he knowingly possessed images of child pornography after being convicted of possession of child pornography. His conviction for violating his release conditions exposed him to up to 10 years’ imprisonment while his original conviction only exposed him to up to 5 years. The Tenth Circuit held that the federal law specifying harsh penalties for certain supervised release violations for those convicted of sex-related crimes violated the Fifth and Sixth Amendments because it effectively transformed the revocation proceeding into a criminal prosecution imposing punishment for new conduct based on facts found by a lesser standard than a jury trial and increased defendant’s minimum sentence exposure in a release revocation proceeding. United States v. Haymond, 2017 BL 306539, 10th Cir. No. 16-5156, 08-31-17: full text at

Seventh Circuit: Defendants Were Entitled to a New Trial Where Prosecutors Failed to Inform Defendants That Their Witness Lied

 Defendant and his co-conspirator’s convictions on drug charges were reversed and a new trial ordered where prosecutors violated Brady v. Maryland when they failed to inform defendants that their witness lied when he said he had quit the drug business and his testimony could have made a crucial difference to the jury because of its detailed, firsthand nature and because it corroborated what the other witnesses were saying about the defendants’ involvement in the conspiracy. United States v. Walter, 2017 BL 303067, 7th Cir. No. 16-1325 Nos. 16-1209, 08-18-17: full text at

Eleventh Circuit: Ginther Hearing Required to Determine Whether Counsel was Ineffective for Failing to Investigate Amount of Unusable Waste in Recovered Methamphetamine

Because unusable waste may not be included in the weight of the product to compute a defendant’s sentence for illegal manufacture of methamphetamine and the error would place defendant in a higher guidelines range, remand for a Ginther hearing was required to determine whether defense counsel was ineffective for not objecting to the quantity used. Griffith v. United States, 2017 BL 340200, 11th Cir., No. 15-11877, 09-26-17: full text at http://src.bna.com/sSU

Ninth Circuit: Habeas Was Granted for Juvenile Convicted of Murder Where Police Used Coercive Tactics to Garner Confession

Petitioner, then age 14 and having an IQ of 77 and ADD, repeatedly asked for counsel during interrogations, but police told him he would be charged with murder later that day and pressured him to “come clean” instead of immediately granting his request. Petitioner later waived his Miranda rights and confessed. The Eleventh Circuit granted habeas stating that, particularly in light of petitioner’s special vulnerabilities to coercion, the coercive police tactics overbore petitioner’s will and his waiver of his previously invoked right to counsel was not voluntary. Rodriguez v. McDonald, 2017 BL 348792, 9th Cir., No. 12-56594, 09-29-17: full text at http://www.bloomberglaw.com/document/X160FORP0000N?

Seventh Circuit: Sentences for Engaging in a Child-Exploitation Enterprise and Conspiracy to Distribute Child Pornography and to Sexually Exploit a Child Violated Double Jeopardy

Defendants were convicted of conspiracy to distribute child pornography, conspiracy to sexually exploit a child, and engaging in a child-exploitation enterprise. The Seventh Circuit held that the conspiracy counts were lesser-included offenses of the enterprise count and therefore the sentences imposed violated double jeopardy requiring vacation of the conspiracy convictions. United States v. Gries, 2017 BL 331651, 7th Cir., No. 15-2447, 09-20-17: full text at http://src.bna.com/sKc

Massachusetts: Police Cannot Give an Opinion at Trial on Whether a Driver Was Impaired by Marijuana Based on Field Sobriety Tests

The Massachusetts court noted that research on whether field sobriety tests (FSTs) can accurately determine marijuana impairment have produced highly disparate results and the scientific community has not reached a consensus as to whether results on these tests correlate with marijuana use or impairment. Therefore, it held that FSTs are admissible to establish a driver’s balance, coordination, mental acuity, and other skills needed for driving and that jurors may then rely on their common sense about the effects of marijuana as they weigh the evidence. Because the effects of marijuana may vary greatly from one individual to another and those effects are not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana. Commonwealth v. Gerhardt, 2017 BL 329063, Mass., No. SJC-11967, 09-19-17: full text at

Third Circuit: The Names of Incarcerated Felons Need Not be Purged from Philadelphia’s Voting Rolls

Although the National Voter Registration Act provides that incarceration for a felony is one of the limited reasons a name may be removed from the voting rolls, the Third Circuit held that the registration law defers to state law in this area. Because Pennsylvania law allows felons to vote after they get out of prison, Philadelphia’s procedures for maintaining its voter rolls do not violate the federal statute. The court also rejected the plaintiff’s claim that removing the names was required under the Help America Vote Act because that statute does not create a private right of action. Am. Civil Rights Union v. Philadelphia City Comm’r, 2017 BL 337823, 3rd Cir., No. 16-3811, 09-25-17: full text at http://src.bna.com/sO9

Fourth Circuit: Resentencing Required Where Court Failed to Address Defendant’s
Non-Frivolous Arguments for Leniency

Defendant served her sentence for armed robbery and while serving her five-year term of supervised release she violated her release conditions and was given the maximum sentence. The Fourth Circuit held that trial judges must address defendant’s non-frivolous arguments for leniency such as positive employment history, efforts at rehabilitation, and voluntary service to the community and that they have to make their reasoning clear when imposing maximum sentences. United States v. Slappy, 2017 BL 335985, 4th Cir., No. 16-4010, 09-22-17: full text at http://src.bna.com/sPk