See www.hopelefeber.com

In a case where defendant was not advised of plea offer with a fixed expiration date,

and subsequently entered a less favorable plea:

(1) defense counsel was deficient in failing to communicate to defendant the written

plea offers from the prosecutor, which would have either recommended a lesser sentence or

would have allowed defendant to plead guilty to a lesser offense, before the offers expired;

and

(2) to demonstrate prejudice defendants must demonstrate a reasonable probability

both that they would have accepted the more favorable plea offer and that the plea would

have been entered without the prosecution’s canceling it or the trial court’s refusing to accept

it.

Lafler v. Cooper, 2012 WL 932020 (U.S. Mo., Mar. 21, 2012)

In this case counsel advised defendant to reject a plea offer of 51-85 months based

on a misunderstanding of state law, and defendant was convicted at trial and sentenced to

185-360 months. Both sides conceded ineffective assistance. With regard to prejudice the

Supreme Court held that defendant would have to show that he would have accepted the

plea offer, that the court would have accepted it, and that the conviction and sentence would

have been less severe. With regard to remedy, the Court stated that the sentencing court

could exercise discretion and determine whether the defendant should receive the term of

imprisonment the government offered in the plea, the sentence he received at trial, or

something in between.

For more information go to www.hopelefeber.com

Setser v. United States, 2012 WL 1019970 (Mar. 28, 2012)

(1) A district court has the discretion to order that a federal sentence run

consecutively to an anticipated state sentence that has not yet been imposed; and

(2) district court’s decision to require defendant to serve sentence consecutive to one

anticipated state sentence and concurrent with another anticipated state sentence was not

rendered unreasonable when state court decided to impose its two sentences concurrently.

The article notes that the forensic evidence – including hair identification evidence, which is now regarded as generally unreliable — led to hundreds of convictions of defendants, nationwide, for crimes they may well not have committed. In these cases, the convicts are entitled at the very least to a DNA test, which would in most cases determine their guilt or innocence. In one case, a man was executed in Texas even after the Justice Department began its review of convictions based on evidence that was not supported on solid scientific grounds.

All told, the Post found that the Department disclosed the results of these reviews to the defendants or their attorneys in fewer than half of the more than 250 cases in which questions had arisen about the forensic evidence.

It is truly unfortunate that it took an investigative reporting effort by a newspaper to uncover these clear failures by prosecutors to do justice, which is the first obligation of any government lawyer.

Looking at this, the Ted Stevens case, and other recent prosecutorial problems, it’s hard to avoid the conclusion that the Justice Department isn’t going to admit its errors or revisit its acknowledged problems unless its feet are put to the fire.

Journalists, bloggers, defense lawyers, whistle-blowers, and others all need to be aware of the department’s tendencies to make only the most perfunctory self-evaluations and to insist that it is right and just, even when it is not.

The Third Circuit reversed. See United States v. Kulick, No. 09-3833, http://www.ca3.uscourts.gov/opinarch/093833p.pdf.

In reversing, the Court made two important holdings. First, weighing in on a circuit split, the Court decided that cross-referenced conduct is limited to relevant conduct. Thus, in order for the cross-reference here to have been appropriate, the extortion must have been relevant conduct to the unlawful possession of the firearm. Second, the Court held, the extortion was not relevant conduct to the unlawful possession. The two were not part of the same course of conduct or a common shceme or plan, as required by USSG 1B1.3(a)(2). There were 27 months between the crimes, they were not similar offenses (nor did they have a similar purpose), and continuous possession of a firearm is not sufficient to establish relevant conduct. It would “eviscerate the effect and import of the Guidelines to permit an enhancement on these facts.”

Kulick also argued that the district court failed to formally rule on his departure request, or adequately explain its failure to vary, based on his rehabilitation, charitable works, and cooperation. The Court found that the district court “actively considered” the rehabilitation. Although the record was ambiguous as to the charitable works, the Court found no error, citing the Guidelines’ discouragement of departures on this ground and Cooper‘s holding that a court need not discuss every argument made at sentencing. In addition, the Court noted that the district court explained its other reasons for the sentence, which were valid.

United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored email without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP,” the court said. “Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”

As the caravan approached a particularly active street corner, the officers in the lead car observed two individuals in conversation, later identified as Defendants Whitfield and Langston. Upon receipt of this notice regarding the defendants, the officer in the second car, Officer Redd, observed the defendants engage in a hand-to-hand exchange and quickly exit the area. Officer Redd notified his fellow officers that they should “check out” the two men. However, Officer Redd did not inform his colleagues that he had observed a hand-to-hand exchange between the defendants. All four of the officers stopped their vehicles and approached the defendants. Officer Redd and Sergeant Rivera, who had been driving the third police vehicle in the caravan, claimed that they observed Defendant Whitfield quickly place his hand in his pocket as if he was holding something. The officers drew their weapons and ordered Defendant Whitfield to remove his hand from his pocket, but the defendant refused and continued walking. Officer Redd maintained that Defendant Whitfield looked as if he was searching for a way to escape. As Defendant Whitfield approached Sergeant Rivera, the officer grabbed the defendant and moved him towards the police vehicle. As he was apprehended by Sergeant Rivera, Defendant Whitfield informed the officer that he possessed a firearm. Defendant Whitfield challenged the legality of his seizure by Sergeant Rivera because this officer did not witness Defendant Whitfield engage in the hand-to-hand exchange with Defendant Langston. Sergeant Rivera only observed Defendant Whitfield place his hand in his pocket.
The Third Circuit upheld the seizure, citing the “collective knowledge” doctrine. The Court ruled that, pursuant to this doctrine, “the knowledge of one law enforcement officer is imputed to the officer who actually conducted the seizure, search, or arrest.” The Court reasoned that it would be impractical to expect an officer, who is working with his fellow officers as a “unified and tight-knit team” during a “fast-paced, dynamic situation,” to communicate to the other officers every fact that could be pertinent in a subsequent reasonable suspicion analysis.

cocaine base and cocaine powder within 1000 feet of a school, as well as aiding and abetting each other’s possession. The evidence showed that, during surveillance of a high crime area, police observed the defendants exchanging a plastic bag which the officers described as a heavy brick-shaped object. As the two men attempted to drive away from the area, police moved to intercept them. During a brief chase, police claimed that they observed someone in the defendant’s vehicle discard a plastic bag through a window. When the plastic bag was later retrieved, police discovered what was later identified as crack cocaine inside. Police eventually apprehended the defendants. During a search incident to their arrests, police discovered a plastic bag containing brick-shaped objects covered with a white powder. Police also recovered marijuana from the vehicle.

The first trial ended with a judgement of acquittal on the cocaine base count, and a mistrial on the cocaine powder count. On retrial, both of the defendants were convicted of possession with intent to distribute more than 500 grams of cocaine powder, as well as the aiding and abetting charge. However, both defendants were acquitted of drug possession within 1000 feet of a school. In this appeal of the second trial, the defendants challenged their convictions for possession with intent to distribute cocaine powder, claiming that the jury’s verdict regarding the schoolyard statute constituted an acquittal of the possession with intent to distribute charge. The Third Circuit ruled, however, that possession with intent to distribute is a lesser-included offense of possession with intent to distribute within 1000 feet of a school because the schoolyard statute provides only one additional element, namely the presence of a school, to the possession with intent to distribute statute.

One of the defendants also argued that the conviction was improper because the trial court failed to give a lesser-included instruction to the jury. However, this argument was nullified by the defendant’s decision to decline the lesser-included offense instruction offered by the court. The defendant’s argument was further undermined by the special verdict form, which specifically allowed the jury to make separate findings on each element of the schoolyard statute. The Third Circuit ultimately ruled that remand for an entry of judgment on the lesser-included offense was not necessary. The second defendant argued separately that his conviction for aiding and abetting should be overturned because the trial court’s jury instruction failed to adequately address the element of specific intent. The Third Circuit ruled that this argument failed because the trial court recited verbatim the Third Circuit’s model jury instruction for aiding and abetting.

New Media and the Courts: The Current Status and a Look at the Future (PDF)

The Conference of Court Public Information Officers report on new media and the courts finds that more than one-third of state court judges and magistrates responding to a survey use social media profile sites like Facebook, while less than 10 percent of courts as institutions use social media for public outreach and communication. After a year of study and online collaboration, the report reveals a judicial branch that clearly recognizes the importance of understanding new media but is proceeding cautiously with concerns about effects on ethics, court proceedings and the ability to support public understanding of the courts.

The report predicts that in the coming years, courts will re-examine state codes of conduct for judges and judicial employees, model jury instructions, rules on cameras in the courtroom and other areas. It makes other predictions and also recommends further research and specific steps for the judicial community to continue to respond productively to new media.

Source: Conference of Court Public Information Officers