September 2020

Eleventh Circuit: Remand Required to
Determine Whether Trial Counsel Was
Ineffective for Failing to
File Motion to Suppress

Petitioner filed habeas to vacate his conviction contending that trial counsel was ineffective for failing to file a motion to suppress his statement to his probation officer and evidence derived therefrom. Petitioner, while on supervised release, faced a classic penalty situation when his probation officer asked him questions, including what was the PIN to open his phone, that would reveal information that he had committed new crimes. The Eleventh Circuit reversed the district court’s denial of habeas, holding that the Fifth Amendment was self-executing and the statements were compelled in violation of the Fifth Amendment as there was reasonable basis for defendant to have thought that his invocation of his Fifth Amendment privilege would result in revocation of his supervised release. The court remanded for a determination as to whether the evidence derived from the statements would have been otherwise admissible under the inevitable discovery doctrine. McKathan v. United States, ___ F.3d ___ (CA 11, 08-12-2020, WL 4658781).

Ninth Circuit: New Trial Required Where
District Court Failed to
Determine Reliability of ICE Agent’s
Expert Testimony Regarding
Drug Trafficking

Defendant was convicted of drug charges after his commercial truck was stopped by border patrol, and marijuana was discovered. Defendant’s duress defense, that he was apprehended by armed gunmen who threatened him and his family, was rejected by the jury after the prosecution’s expert testified that the likelihood drug trafficking organizations would entrust a large quantity of illegal drugs to the driver of a commercial vehicle who was forced or threatened to comply was “[a]lmost nil, almost none.” The Ninth Circuit granted a new trial holding that the district court abused its discretion by qualifying the expert Immigration and Customs Enforcement (ICE) agent as an expert without explicitly finding the reliability of the expert’s proposed testimony where the expert’s testimony regarding his qualifications did not explain the methodology by which he reliably made his conclusions, the expert lacked experience within Mexico, and his general testimony about interviews with cartel members in Mexico was too vague and generalized. United States v. Valencia-Lopez, ___ F.3d ___ (CA 9, 08-19-2020, WL 4814139).

Ninth Circuit: New Trial Required Where
District Court Erred When It Dismissed
Juror in Violation of Sixth Amendment

After a two-month long jury trial, the district court dismissed a juror, hours into jury deliberations, and defendant was ultimately convicted of conspiracy to distribute controlled substances. The Ninth Circuit remanded for a new trial holding that: 1) there was no indication that the juror harbored malice toward the judicial process, and thus the juror was not subject to dismissal for bias where the district court’s decided to strike the juror, a former criminal defense lawyer, after receiving a complaint from other jurors and without clarifying the juror’s alleged confusion about a jury instruction that applied to all charges, and the district court removed the juror without giving the original jury any further instructions or allowing it any further opportunity to deliberate; 2) there was a reasonable possibility that the impetus for the juror’s dismissal stemmed from her views on the merits of the case in violation of the Sixth Amendment; and 3) the error in dismissing the juror was not harmless where the defenses presented by defendant were supported by at least some evidence, and there was reason to believe that the dismissed juror had views on the merits of the case. United States v. Litwin, ___ F.3d ___ (CA 9, 08-27-2020, WL 5050383).

Ninth Circuit: District Court Erred When It
Denied Motion to Suppress
Applying the Attenuation Doctrine

After entering defendant’s home without a warrant and detaining and handcuffing defendant outside the home, officers discovered a suspicionless search condition and went back in and searched the home finding drugs. The Ninth Circuit reversed the district court’s denial of defendant’s motion to suppress, finding that the evidence found during the investigatory search of defendant’s residence was not sufficiently attenuated from the initial unlawful entry where only a few minutes passed between the initial entry and reentry to conduct the investigatory search, there was an absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, and the officers’ good faith alone was not enough to justify admission of the evidence. United States v. Garcia, ___ F.3d ___ (CA 9, 09-10-2020, WL 5417153).

Eighth Circuit: District Court Erred When
It Suggested to Defendant That He Could
Do Better if He Went to Trial

After defendant was charged with being a felon in possession, the district court judge suggested to defendant, with a plea deal still on the table, that defendant could do better if he went to trial. The Eighth Circuit remanded for resentencing before a different judge holding that the district court plainly erred and that there was a reasonable probability that defendant would not have gone to trial had he known that taking the court’s advice exposed him to a higher sentencing range, which raised serious questions of fairness that the government did not dispute. United States v. Harrison, ___ F.3d ___ (CA 8, 09-10-2020, WL 5414858).

Fourth Circuit: Suspicionless Traffic Stop
to Check for Parkway Permit Violated
the Fourth Amendment

Defendant was driving his employer’s commercial truck on a parkway that required permits for commercial vehicles, and he was pulled over by an officer for the sole purpose of determining whether he had the proper permit. The Fourth Circuit reversed the district court’s denial of defendant’s motion to suppress, finding that the initial traffic stop violated the Fourth Amendment where the Government failed to show that the officer possessed reasonable suspicion of illegality when he stopped defendant’s truck or that he acted pursuant to an administrative inspection scheme in conducting the stop. United States v. Feliciana, ___ F.3d ___ (CA 4, 09-11-2020, WL 5490878).