June - July 2019

New York: Prosecution Failed to Rebut Defendant’s Prima Facie Showing That He Was Entitled to a Missing Witness Charge

The New York Court of Appeals reversed defendant’s conviction of attempted murder, holding that defendant was entitled to a missing witness charge. Defendant met his limited initial burden demonstrating prima facie entitlement to the missing witness charge where identity of the shooter was a material issue and the missing witness was the victim’s boyfriend and was present at the time of the shooting and was the only eyewitness to the shooting other than the victim. The prosecution’s conclusory argument that the witness’s testimony would be cumulative was insufficient to satisfy its burden in response to defendant’s prima facie showing. People v. Smith, ___ N.E.3d ___ (06-06-2019, WL 2374228).

9th Circuit: Immigration Agents Must Have a Reasonable Suspicion of Illegal Activity to Detain and Question Suspected Undocumented Workers

After Immigration and Customs Enforcement (ICE) received an anonymous tip that a Los Angeles-area manufacturer employed 200 to 300 undocumented immigrants, ICE agents sought and received a search warrant for the factory. During execution of the warrant in 2008, petitioner, a native and citizen of Mexico who entered the United States without inspection in 1994 as a child, was detained and provided statements that he lacked lawful immigration status, and he was arrested for immigration violations.

The Ninth Circuit held that 1) petitioner’s statements regarding his birthplace were evidence of alienage, not identity, and were suppressible; 2) the fact that ICE agents suspected factory operator of employing undocumented workers was insufficient to create a reasonable suspicion justifying the detention of petitioner for questioning for purposes of the Fourth Amendment and a regulation requiring reasonable suspicion for detention by an immigration officer; 3) the agents violated the regulation 8 C.F.R. § 287.8(b)(2) by detaining and questioning petitioner without reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States; and 4) because the evidence obtained was suppressed and the government did not introduce any other evidence tending to show alienage, termination of the proceedings was warranted. Perez Cruz v. Barr, ___ F.3d ___ (CA 9, 06-13-2019, WL 2454850).

Iowa: Iowa Trial Court Erred When It Denied Defendant an Expert in Battered Woman Syndrome

Defendant sought post-conviction relief from her jury trial conviction for first degree murder. The Iowa Supreme Court found that the district court abused its discretion in denying defendant an expert in battered woman syndrome (BWS). The court also held the grant of summary disposition on defendant’s post-conviction motion was erroneous where the district court relied on the lack of an expert in the very order that the court first addressed, and denied, defendant’s request for appointment of an expert and where the court concluded that the record did not show facts to support defendant’s claim that BWS should have been raised at her trial in spite of a trial transcript with evidence of physical, psychological, and verbal abuse of the type that causes BWS. Linn v. State, ___ N.W.2d ___ (06-14-2019, WL 2482511).

7th Circuit: District Court Did Not Retain Jurisdiction to Revoke Supervised Release Term Where Defendant Was Not Notified by a Summons or Warrant

Defendant was convicted of several counts of wire fraud for perpetrating an investment scheme where defendant would tell potential investors that he had a large amount of money coming to him but needed money for fees and other costs. After serving his sentence, defendant was detained for again soliciting investors during his supervised release. The Seventh Circuit held that the district court did not retain jurisdiction to revoke defendant’s supervised-release term after its expiration where: 1) the court’s minute orders notifying defendant of hearings did not constitute a “summons” or a “warrant”; 2) no documents titled “warrant” or “summons” ever issued relating to defendant’s supervised-release revocation; 3) the minute orders never directed defendant to appear; and 4) the order to detain defendant did not require anyone to bring him before a judge. United States v. Block, ___ F.3d ___ (CA 7, 06-20-2019, WL 2536097).