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OCDLA Email Summary
April 12, 2005 – April 25, 2006
This Issue:
Supreme Court Cases…………..… 2
9th Circuit Cases……….……...….. 7
Oregon Supreme Court Cases......... 13
Oregon Court of Appeals……........ 14
Discussion:
Article of the Week…..………....... 15
From the Pond ……….………...... 17
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US SUPREME COURT
Washington v. Recuenco
Argued: 04/17/06
No. 05-83
Court below: 110 P.3d 188 (2005)
Full text: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2005_sc/749647maj&invol=3
SENTENCING (Whether Harmless Error Analysis Should Be Applied to Erroneous Jury Instructions Regarding
Sentencing Enhancements)
The issue in this case is whether a judge’s error in defining a sentencing enhancement for the jury should be
analyzed for “harmless error” if the error did not, beyond a reasonable doubt, affect the verdict.
A jury convicted Arturo R. Recuenco (Recuenco) of third-degree mischief, interfering with domestic violence
reporting, and second-degree assault. The Washington trial court (trial court) enhanced Recuenco’s sentence based
on his having a “firearm,” which was a greater enhancement than that imposed for having a “deadly weapon.” There
was no dispute that Recuenco assaulted his wife or that he had a gun. The trial court erroneously asked the jury to
decide whether Recuenco had a deadly weapon. The jury found beyond a reasonable doubt that he did, but the court
then applied the greater sentencing guideline for a firearm. The Washington Court of Appeals affirmed, holding that
the error was harmless. The Washington Supreme Court overturned Recuenco’s conviction, finding that the error,
which denied the jury the opportunity to decide the question of “deadly weapon” vs. “firearm” beyond a reasonable
doubt, violated Recuenco’s Sixth Amendment right to a jury trial. The Washington Supreme Court held that such an
error could never be harmless. On appeal to the United States Supreme Court, the State of Washington argues that
sentencing enhancements are comparable to elements of an offense, and so jury instructions defining them should be
subject to “harmless error” analysis so long as the erroneous instruction does not substantially affect the verdict.
[Summarized by Robin K. Littlefield.]
United States v. Gonzalez-Lopez
Argued: 04/18/06
No. 05-352
Court below: 399 F.3d 924 (8th Cir. 2005)
Full text: http://caselaw.lp.findlaw.com/data2/circs/8th/033487p.pdf
CRIMINAL PROCEDURE (Whether Denial of Defendant’s Choice of Counsel Results in an Automatic Reversal of
a Conviction.)
The issue in this case is whether a district court’s denial of a criminal defendant’s right to counsel of choice entitles
the defendant to automatic reversal of his conviction.
A grand jury charged Cuauhtemoc Gonzalez-Lopez (Gonzalez-Lopez) for conspiring to distribute marijuana.
Gonzalez-Lopez’s family hired Texas attorney John Fahle (Fahle) to represent him. After the arraignment,
Gonzalez-Lopez contacted California attorney Joseph Low (Low) and asked Low to either assist Fahle or assume
the representation. At Gonzalez-Lopez’s request, Low traveled to Missouri and shortly thereafter respondent
retained Low. A magistrate judge for the U.S. District Court for the Eastern District of Missouri (District Court)
granted Low provisional permission for admission with the understanding that Low would file a motion for
admission pro hac vice. The magistrate judge rescinded Low's provisional permission after Low violated a court rule
in an evidentiary hearing. The District Court denied several subsequent applications for admission by Low and later
convicted Gonzalez-Lopez. The United States Court of Appeals for the Eight Circuit (Court of Appeals) vacated the
District Court’s judgment of conviction and remanded the case for a new trial, holding that the District Court’s
improper denial of Low’s application for admission violated respondent’s Sixth Amendment right to counsel of
choice. On appeal to the United States Supreme Court, the government argues that the denial of the qualified right to
counsel of choice does not warrant automatic reversal and that a defendant who is denied counsel must show an
adverse effect on his right to a fair trial. The government will further argue that the Court of Appeals erred in
holding that an erroneous denial of counsel of choice reflects a structural defect in the trial mechanism not subject to
harmless error analysis. [Summarized by Chuck Brushwood.]
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Zedner v. United States
Argued: 04/19/06
No. 05-5992
Court below: 401 F.3d 36 (2nd Cir. 2005)
Full text: http://caselaw.lp.findlaw.com/data2/circs/2nd/040821p.pdf
SPEEDY TRIAL (Whether a Defendant Who Signed a Waiver of Speedy Trial Can Later Bring a Claim for a
Violation of The Speedy Trial Act)
The issue in this case is whether a criminal defendant who signs a general speedy trial waiver in exchange for future
extension delays can later bring a claim for a violation of his rights under the Speedy Trial Act.
The United Stated District Court for the Eastern District of New York (District Court) indicted Jacob Zedner for
bank fraud in April of 1996 after he presented fraudulent bonds to several financial institutions. The District Court
granted Zedner an extension from April to November 1996. Zedner’s counsel sought a second delay through January
1997 and the District Court conditioned the granting of future delays on Zedner’s signing “a waiver for all time” of
his right to a speedy trial. Zedner signed, and later moved for several more continuances. After leave to determine
Zedner’s competency to stand trial, the set date had to be delayed again when his counsel was medically unable to
appear. After this delay, on March 7, 2001, five years after the indictment, Zedner moved to dismiss pursuant to The
Speedy Trial Act, 18 U.S.C. Sec. 3162(a), claiming he had not been given trial within 70 days of his indictment as
the statute requires. The District Court denied the motion to dismiss, citing Zedner’s waiver and a separate finding
of incompetence. In April 2002, the District Court convicted Zedner and sentenced him to 63 months in prison. The
United States Court of Appeals for the Second Circuit (Court of Appeals) affirmed the denial of the motion to
dismiss. The Court of Appeals reasoned that Zedner made no showing of harm by the delays and was not entitled to
relief under the statute based on his signed waiver and multiple extension requests. On appeal to the United States
Supreme Court (the Court), Zedner argues that a “waiver for all time” is in direct conflict with the remedial purpose
of the statute and therefore a violation of the Speedy Trial Act. Zedner further argues that the Court of Appeals
incorrectly applied the harmless-error analysis in disregarding the 70-day violation. Zedner requests that the Court
reverse and remand for dismissal to uphold the public interest in the prompt and efficient administration of justice.
[Summarized by Angie Gipson.]
Clark v. Arizona
Argued: 04/18/06
No.: 05-5966
Court Below: Unpublished
Full Text: Unavailable
DUE PROCESS (Whether a Conviction Under Arizona Law That Alters the Common Law M’Naghten Rule for
Legal Insanity Violates Due Process)
The issue is this case is whether Arizona Revised Sec. 13-502, which allows for a defense of insanity only if the
defendant did not know right from wrong, violates the due process by altering the legal standard for insanity set
forth in the common law M’Naghten Rule.
An Arizona trial court (trial court), found Defendant Eric Clark (Clark) guilty of first degree murder for ‘knowingly
and intentionally’ shooting an Arizona police officer during a routine traffic stop after a bench trial. The trial court
sentenced Clark to life in prison with the possibility of parole after 25 years. The trial court refused to admit
evidence of Clark’s past diagnoses of paranoid schizophrenia and other mental diseases because Arizona Revised
Statute Sec. 13-502 does not permit the affirmative defense of insanity to show a defendant did not understand the
‘nature and quality of the act’ as set forth in the M’Naghten Rule’s elements of insanity. Under Arizona law the
insanity defense is only allowed if defendant is found unable to distinguish right from wrong, which the trial court
found Clark able to do. Both the Arizona Court of Appeals and the Arizona Supreme Court denied Clark’s appeals.
On appeal to the United States Supreme Court (the Court), Clark argues that because Arizona law refuses
application of the common law M’Naghten rule, which establishes insanity as inability to understand the ‘nature and
quality of the act,’ and inability to distinguish right from wrong, the Arizona law is unconstitutional as a violation of
due process guaranteed by the Fourteenth Amendment. Clark claims that Arizona’s law modifies the legal concept
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of insanity in violation of due process, and because he argues the trial court failed to admit his diagnoses under an
unconstitutional law, he asks the Court to reverse the trial court sentence. [Summarized by Loren Cohen.]
Carey v. Musladin
Certiorari granted: 04/17/06
No. 05-785
Court below: 427 F.3d 653 (9th Cir. 2005)
Full text:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2EA2C630A27DD09F882570A000823C36/$file/0316653.pdf?o
penelement
DUE PROCESS (Spectator Wearing of Buttons Depicting Victim at Criminal Trial Violates Defendant’s Due
Process Right to a Fair Trial and Impartial
Jury)
The United States Court of Appeals for the Ninth Circuit held that trial spectators wearing buttons depicting a
photograph of the alleged victim violates a defendant’s due process right to a fair trial and impartial jury.
A California state court convicted Mathew Musladin (Musladin) of first degree murder. Throughout the course of
this 14-day state trial several members of the victim’s family attended and wore photographic buttons picturing the
victim. On direct appeal Musladin claimed that these spectator appearances violated his due process right to a fair
trial and impartial jury. The California Court of Appeals (State Court) denied relief and held that the buttons didn’t
provide defendant with an “unmistakable mark of guilt.” Musladin petitioned the United Stated District for the
Northern District of California (District Court) for a writ of habeas corpus following this State Court ruling. The
District Court denied the petition, and Musladin appealed to the United States Court of Appeals for the Ninth Circuit
(Court of Appeals). The Court of Appeals reversed the District Court’s denial of habeas corpus and concluded that
the State Court implemented requirements beyond those of established federal law, which measure the propriety of
courtroom occurrences by whether “impermissible factors” create an “inherently prejudicial” atmosphere for
defendant. The Court of Appeals ordered Musladin’s release, noting that the buttons served to informally allege
defendant’s guilt but could not be refuted through his defense evidence. [Summarized by Kerensa Pearce.]
United States v. Resendiz-Ponce
Certiorari granted: 04/17/06
No. 05-998
Court below: 425 F.3d 729 (9th Cir. 2005)
Full text: http://caselaw.lp.findlaw.com/data2/circs/9th/0410302p.pdf
CRIMINAL PROCEDURE (Federal Indictment’s Omission of a Criminal Offense Element Cannot Constitute
Harmless Error)
The United States Court of Appeals for the Ninth Circuit held that a criminal indictment for attempted entry of the
United States’ failure to allege a specific overt act of attempted entrance is insufficient to convict and not subject to
harmless error analysis.
Following two previous deportations, one subsequent to committing an aggravated felony, Resendiz-Ponce, a
Mexican nationalist, attempted to enter the United States on foot. At the U.S./Mexican border, Resendiz-Ponce
claimed to be a legal resident and presented photo identification actually belonging to his cousin. Because
Resendiz-Ponce did not look like the identification photo, he was questioned and subsequently indicted for
attempting to reenter the United States without permission. The indictment listed where and when the attempted
entry took place, however it did not allege any specific overt act that Resendiz-Ponce performed while attempting to
gain entrance. A United States District Court for the District of Arizona (District Court) jury convicted ResendizPonce of attempted reentry of the United States after having been previously deported subsequent to committing an
aggravated felony. Resendiz-Ponce appealed. The United States Court of Appeals for the Ninth Circuit (Court of
Appeals) reversed and remanded the District Court’s conviction, finding the indictment insufficient. The Court of
Appeals held the indictment irreparably flawed in that it failed to allege any specific overt act of attempted entrance,
an essential element of Resendiz-Ponce’s crime. [Summarized by Jenny Stallard Lillge.]
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Brigham City v. Stuart
Argued: 04/24/06
No. 05-502
Court below: 122 P.3d 506 (Utah, 2005)
Full text: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ut&vol=supopin&invol=brigha021805
FOURTH AMENDMENT (Whether a Police Officer’s Subjective Intent in Entering a Residence During an
Emergency Justifies Entering Without a Warrant)
The issue in this case is whether a police officer’s subjective intent in entering a residence during an “emergency”
justify entering without a warrant.
Brigham City police officers overheard a fight from outside a residence at 3:00 a.m.. The police officers saw a
juvenile hit an adult, causing the adult to bleed. The police officers then entered the home without knocking because
of the loud altercation and seeming necessity of entry. The First Judicial District Court of Utah (District Court)
determined that the Fourth Amendment required the police officers to knock before entering. The Utah Court of
Appeals upheld the District Court’s decision, stating that what the police officers witnessed did not signify that any
continuing or increasing violence would occur. The Utah Supreme Court (Supreme Court) upheld the ruling
because the police officers’ entry without a warrant was not excused by the “emergency aid” allowance or by
“exigent circumstances.” The Supreme Court held that the police officers did not meet the “emergency aid”
exception because the injuries did not require medical care. In addition, the police officers did not meet the exigent
circumstances exception because more than assault must be committed before and entry is justified. On appeal to
the United States Supreme Court, Brigham City argues that the only necessary factor to activate the “emergency
aid” exception is that a reasonable police officer would have believed that those in the residence required urgent
help. They also argue the entry in this case was justified because the loud argument and the assault led the officers to
believe their aid was needed. [Summarized by Lyndsey Heberling.]
Dixon v. United States
Argued: 04/25/06
No. 05-7053
Court below: 413 F.3d 520 (5th Cir. 2005)
Full text: http://caselaw.lp.findlaw.com/data2/circs/5th/0410250p.pdf
DUE PROCESS (Whether When a Criminal Defendant Raises a Duress Defense, the Burden Of Persuasion is on
the Government to Prove Beyond a Reasonable Doubt that the Defendant Was Not Under Duress, or Upon the
Defendant to Prove Duress by a Preponderance of Evidence)
The issue in this case is whether when a criminal defendant raises a duress defense, the burden of persuasion is on
the government to prove beyond a reasonable doubt the defendant was not under duress, or upon the defendant to
prove duress by a preponderance of evidence.
Keshia Ashford Dixon (Dixon) pled not guilty to the nine count indictment for the purchase of seven firearms.
Dixon raised the defense of duress and testified she purchased the firearms because of threats of serious bodily
injury from her boyfriend. The United States District for the Northern District of Texas convicted Dixon of all nine
accounts. The United States Court of Appeals for the Fifth Circuit (Court of Appeals) affirmed Dixon’s sentence and
upheld the trial judge’s instructions to the jury on the burden of proof for duress defense. Dixon filed a petition for
rehearing en banc, arguing that the Fifth Circuit should overrule precedent and adopt the majority rule, which places
the burden of proof for a duress defenses on the government. The Court of Appeals denied the petition for rehearing
en banc. On appeal to the United States Supreme Court, Dixon argues the common law maintains that once a
defendant establishes adequate evidence in support of a defense of duress, the prosecution bears the burden of
disproving duress beyond a reasonable doubt. Dixon argues that pursuant to the constitution, the Due Process Clause
prevents shifting the substantive burden to the defense in a duress case. Dixon further argues that the Fifth Circuit’s
rule is contrary to modern common law and requires automatic reversal. [Summarized by Paige Allen.]
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Hill v. McDonough
Argued: 04/26/06
No. 05-8794
Court below: 437 F.3d 1084 (11th Cir. 2006)
Full text: http://caselaw.lp.findlaw.com/data2/circs/11th/0610621p.pdf
HABEAS CORPUS (Whether a Prisoner’s Claim Challenging the Method Chosen to Administer a Lethal Injection
Should be Barred as a Second Petition For a Writ of Habeas Corpus)
The issue in this case is whether a federal forum exists for a condemned inmate contending a state corrections
department's choice of legal injection violates the Eighth and Fourteenth Amendments when that inmate has already
been fully denied habeas corpus relief.
In 1983, a Florida state court convicted and sentenced Clarence Hill (Hill) to death for capital murder. The Florida
Supreme Court affirmed this conviction, but vacated the sentence. In 1986 Hill again received the death penalty in a
decision affirmed by the Florida Supreme Court. Hill petitioned sentencing to both state and federal courts, resulting
in a federal order to stay execution and an eventual grant of habeas corpus, with a remand to Florida Courts to
reconsider sentencing factors. On remand in 1995, the Florida Supreme Court affirmed Hill’s death sentence, to be
administered by legal injection. Hill again petitioned for habeas corpus relief. The United States Court of Appeals
for the Eleventh Circuit (Eleventh Circuit) affirmed denial of habeas corpus relief. Hill then requested information
regarding whether lethal injection would cause unnecessary pain, but was denied access to such information. Upon
his death scheduling in 2005, Hill filed a post conviction petition challenging the lethal injection, claiming it violates
his Eighth Amendment right to not suffer cruel and unusual punishment. The Florida Supreme Court affirmed the
holding that this claim was procedurally barred. In 2006, Hill filed complaint in the United States District Court for
the Middle District of Florida, which dismissed the claim as the “functional equivalent” of a successive petition for a
writ of habeas corpus. Upon emergency appeal to the Eleventh Circuit, the District Court’s decision was affirmed
and dismissed for lack of subject matter jurisdiction. On appeal to the United States Supreme Court, Hill will argue
that his claim is proper because he challenges the specific method of lethal injection chosen by the state, not the
state’s authority to execute him lawfully. [Summarized by Meghan Erickson.]
Salinas v. United States
Decided: 04/24/06
No. 05-8400
Full Text: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=05-8400
UNITED STATES SENTENCING GUIDELINES: (Conviction for Simple Felony Possession of a Controlled
Substance is Not a "Controlled Substance Offense" under the United States Sentencing Guidelines.)
The United States Supreme Court (the Court) held per curiam that a conviction for simple felony possession of a
controlled substance is not a “controlled substance offense” under the United States Sentencing Guidelines Secs.
4B1.1 and 4B1.2(b).
Jeffrey Jerome Salinas (Salinas) pleaded guilty to two counts of bank robbery and one count of felony possession of
a controlled substance in the United States District Court for the Southern District of Texas (District Court). He
appealed his sentence. The Unites States Court of Appeals for the Firth Circuit (Court of Appeals), applying the
United States Sentencing Guidelines, affirmed his conviction and modified his sentence. In so modifying, the Court
of Appeals applied a heightened standard under the career offender Sec. 4B1.1 guidelines, which provide that a
sentence is to be heightened if “the instant offense of conviction is a felony that is … a controlled substance
offense.” Sec. 4B1.2(b) of the Sentencing Guidelines defines a controlled substance offenses as state or federal
felonies prohibiting, “possession of a controlled substance with the intent to manufacture, import, export, distribute
or dispense.” The Court held that the because Salinas’ offense did not meet the definitional requirement set forth in
Sentencing Guidelines the Court of Appeals erred in treating his controlled substance possession conviction as a
controlled substance offense. The Court vacated the judgment and remanded back to the Court of Appeals for
further consideration. [Summarized by Loren Cohen.]
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Day v. McDonough
Decided: 04/25/06
No. 04-1324
Full text: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-1324
HABEAS CORPUS (A District Court has the Authority to Dismiss, Sua Sponte, a Habeas Petition that is Untimely)
The United States Supreme Court held 5-4 (opinion by Ginsburg; dissents by Stevens, and Scalia) that a court
examining a writ of habeas corpus appeal under the Antiterrorism and Effective Death Penalty Act may inquire into
the timeliness of the habeas petition upon its own initiative.
The issue in this case is whether a district court has the authority to dismiss, on its own initiative, a state prisoner’s
petition for habeas corpus as untimely when the opposition has waived the defense of statutory limitation.
Patrick Day (Day) was convicted of second-degree murder and sentenced to 55 years in prison. The Antiterrorism
and Effective Death Penalty Act (“ADEPA”) sets a one-year limitation for filing writ of habeas corpus petitions,
running from the date of final judgment. Day subsequently filed several motions for state post-conviction relief,
which were denied by the United States District Court for the Northern District of Florida (District Court). In the
State’s answer, Eleventh Circuit precedent was overlooked, so the State incorrectly calculated the timing of the
petition and failed to raise AEDPA’s one-year limitation period. A Federal Magistrate Judge noticed the State’s
error and ordered Day to show why his petition should not be dismissed as untimely. Day was unable to sway the
magistrate and the District Court dismissed the petition. On appeal, the United States Court of Appeals for the
Eleventh Circuit (Court of Appeals) affirmed the calculation error of the State and affirmed the dismissal, holding
that even though the statute of limitations is an affirmative defense, the district court may review sua sponte the
timeliness of a habeas petition. On appeal to the United States Supreme Court (the Court), Day argued that a defense
of the period of limitations may be raised by a federal court only at the pre-answer, initial screening stage and that
after an answer has been filed the court has no authority to find the petition untimely. The Court rejected this
argument because information that is necessary to the time calculation is often unavailable until the State has filed
its answer and copies of documents from the state-court proceedings. The Court relied on the AEDPA provision that
no waiver to the timeliness requirement occurs by the State unless expressly waived by counsel. The Court affirmed
the Court of Appeals and held that district courts are permitted to consider the timeliness of a state prisoner’s habeas
petition after affording the parties fair notice and an opportunity to present their positions. [Summarized by Angie
Gipson.]
9TH CIRCUIT
U.S. v. Kim
No. 05-50112 (04/10/2006)
Before Circuit Judges McKeown, Berzon, and King, Senior United States District Judge for the district of Hawaii
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F6232FFCE1D59BC68825714C0055CF8D/$file/0550112.pdf?o
penelement
CRIMINAL LAW / CONTROLLED SUBSTANCE / MENS REA
Opinion (Berzon): A jury convicted Jae Gab Kim, a pharmacist, of illegally selling a product used to manufacture a
controlled substance under 21 U.S.C. sec. 841 (c)(2). Kim sold packages of medicine containing pseudoephedrine
to thee undercover officers, along with iodine and hydrogen peroxide, chemicals used to manufacture
methamphetamine. At the time of the sale, the officers tried to purchase all of Kim's supply of the medicine, and
after being told that one person could not buy all of the medicine, the three divided up the packages between them,
and one person paid for all three purchases. The Ninth Circuit noted that even though the sales were below the
mandatory reporting requirements of California State law, and there are no federal reporting requirements, the sale
was made in a way that Kim should have been aware the medicine would be used to manufacture methamphetamine.
The Ninth Circuit held that because a reasonable person "would have reason to believe" that the quantity and
combination of medicine sold suggested the customers intended to manufacture methamphetamine, Kim possessed
the required level of mens rea under 21 U.S.C. sec. 841 (c)(2). AFFIRMED. [Summarized by David Wilson]
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U.S. v. Casey
No. 04-30525 (04/10/06)
Before Circuit Judges Browning, D. Nelson, and O’Scanlain
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B04F77D8A95626768825714C00554E73/$file/0430525.pdf?ope
nelement
CRIMINAL LAW / CONTROLLED SUBSTANCE ACT / MONEY JUDGMENT
Opinion (O’Scanlain): The government charged Michael David Casey with interstate drug trafficking as a result of
his sending 1,000 tablets of ecstasy from California to Oregon for $7,000. Casey pleaded guilty and the district
court sentenced him to concurrent 70-month sentences. The government also requested a money judgment against
Casey for the $7,000 he received as a result of the drug sale, which the district court denied. Casey appealed his
sentence under Blakely v. Washington and the government appealed the denial of the money judgment. The Ninth
Circuit held that Casey’s sentencing hearing must be remanded to comply with Blakely. Regarding the money
judgment, the Ninth Circuit determined that they must read those provisions of the Controlled Substance Act
liberally to comply with the intent of Congress that defendants not profit from their illegal activities. The Ninth
Circuit also determined that a money judgment against a defendant was not void simply because the defendant did
not have any current assets. Instead the judgment was against the person of the defendant and thus, the government
could levy against future assets of the defendant to secure payment of the judgment. Therefore, the Ninth Circuit
held that the district court should have imposed the money judgment against Casey. SENTENCE VACATED AND
REMANDED IN PART, and REVERSED AND REMANDED IN PART. [Summarized by Michael Elliott]
U.S. v. Transfiguracion
No. 04-10457 (04/05/06)
Before Circuit Judges B. Fletcher, Berzon, and Gibson, Senior United States Circuit Judge for the Eighth Circuit
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9186B7AE7919E21A8825714700001F86/$file/0410457.pdf?ope
nelement
CRIMINAL LAW / INTERPRETATION OF PLEA AGREEMENTS
Opinion (Berzon): Lynda Transfiguracion entered a plea agreement with prosecutors to plead guilty to importing
methamphetamine into the United States from Guam and waived indictment in exchange for the government's
promise not to prosecute Transfiguracion for "any other non-violent offenses." Shortly after the plea agreement was
entered into, Transfiguracion moved to dismiss the plea agreement because the underlying elements of the crime she
pled guilty to had been eliminated in a recent Ninth Circuit case, U.S. v. Cabaccang. The district court granted the
dismissal, and the government appealed. The Ninth Circuit noted that plea agreements are interpreted in a way
similar to contracts, and that any ambiguities in the agreement will be construed against the party drafting the
agreement. The Ninth circuit held that since the plea agreement was ambiguous as to whether a change in the law
would nullify the plea agreement, and Transfiguracion had cooperated with authorities, the agreement should be
construed in favor of Transfiguracion, and she should not be prosecuted for "any other non-violent offenses."
AFFIRMED. Dissent by Judge Berzon [Summarized by David Wilson]
U.S. v Kilby
No. 05-30112 (04/07/06)
Before Circuit Judges Fernandez, Tashima and Paez
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6A8833AEEA2A130788257148007B4E09/$file/0530112.pdf?op
enelement
CRIMINAL LAW / SENTENCING / QUANTITY APPROXIMATION
Opinion (Tashima): A jury convicted Joshua Kilby of possession with intent to distribute, and conspiracy to
distribute Foxy and Ecstasy. Kilby appealed the conviction on three grounds, disputing the attributed amount of
Foxy pills, the attributed amount of ecstasy pills and the imposition of an unreasonable sentence. The Ninth Circuit
affirmed the district court's findings as to the amount of ecstasy attributable and the occurrence of the conspiracy,
-8-
but overturned the conviction related to the Foxy pills. The Ninth Circuit noted that the government must show
three elements for drug approximation to be effective: first, the government must prove the approximate quantity by
a preponderance of evidence; second, the information used to calculate the approximation must be reliable; and
third, the government must err of the side of caution when using approximations. The Ninth Circuit noted that the
government did not prove that all Foxy pills are similar in weight, or that there was a common supplier involved
with the samples used for approximations. The Ninth Circuit held that the government failed to prove the reliability
of the approximation of quantity because the information used to approximate the weight of the Foxy was not
reliable enough and was not connected to Kilby. CONVICTION AFFIRMED, SENTENCE VACATED AND
REMANDED. [Summarized by Jerrica Pierson]
U.S. v. Zavala
No. 05-30120 (04/11/06)
Before Circuit Judges Fernandez, Tashima and Paez
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/60CADD9795C870C28825714D004E51D7/$file/0530120.pdf?o
penelement
CRIMINAL LAW / SENTENCING GUIDELINES / PRESUMPTIVE SENTENCE
Opinion (Per Curiam): Juan Antonio Zavala (Zavala) appealed his sentence of 30 years imprisonment after the court
convicted him of conspiracy to distribute or possess with intent to distribute methamphetamine and of distribution of
methamphetamine. Zavala’s sentencing was not complete before U.S. v. Booker, which made the sentencing
guideline range to include a life sentence. Zavala argued that the starting point for sentencing should be the
statutory minimum and not the guideline range of a life sentence. The Ninth Circuit agreed in part, holding that
while guidelines are entitled to credence, the guidelines are not binding on sentencing judges and judges must
consider other factors like the nature of the offense and characteristics of the defendant. The Ninth Circuit
reasoned that the guideline established by Booker is only one factor to consider when deciding the appropriate
sentence, and in treating the guideline as a presumptive sentence, the lower court had given too much weight to the
guideline. VACATED AND REMANDED. Dissent by Judge Fernandez. [Summarized by Megan Balogh]
Vasquez-Ramirez v. United States District Court for the Southern District of California
No. 04-75715 (04/06/06)
Before Circuit Judges Canby, Kozinski, and Siler, Senior United States Circuit Judge for the Sixth Circuit
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F757D031818FB71E8825714700828E20/$file/0475715.pdf?ope
nelement
CRIMINAL LAW / PLEA AGREEMENTS / JUDICIAL ACCEPTANCE
Opinion (Kozinski): Alvaro Vasquez-Ramirez (Ramirez) was convicted of a felony and deported, but later reentered
the United States unlawfully and was captured. Reentry by removed aliens carries a maximum sentence of 20 years,
but prosecutors, following standard procedure for prosecutions in the Southern District of California, gave Ramirez
a “fast-track” option, which allowed him to plead guilty and be sentenced to a maximum of 30 months in prison.
The district judge denied the plea agreement and the plea of guilty because he wanted the opportunity to create a
longer sentence. Ramirez filed a mandamus petition to force the judge to accept the guilty plea that Ramirez
entered. The Ninth Circuit found that Rule 11 of the Federal Rules of Criminal Procedure gives the judge discretion
to give a defendant a less favorable sentence than in a plea agreement, but the judge cannot deny a guilty plea as
long as the Rule 11 requirements are met. The Ninth Circuit noted that if the guilty plea meets the requirements it is
already assumed to be accepted. Ninth Circuit found that even though a judge may be concerned that he cannot
sentence the defendant to a longer term because the lower plea carries a lower maximum sentence, the decision of
what crime to charge the defendant with does not rest with the judge but rather falls within prosecutorial discretion.
PETITION FOR MANDAMUS GRANTED. [Summarized by Nicholas Wood]
Davis v. Grigas
No. 05-15211 (04/10/06)
Before Circuit Judges Hall, Silverman and Graber
-9-
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9DC472FB393DB0A08825714C0055B356/$file/0515211.pdf?o
penelement
CRIMINAL PROCEDURE / HABEAS CORPUS / INEFFECTIVE ASSISTANCE OF COUNSEL
Opinion (Hall): In 1997, Johnny Lee Davis shot the mother of his children and. assuming she was dead, he left her
body in the desert. The woman suffered paralysis, but lived. Davis was charged with attempted murder, and use of
a deadly weapon. Davis pled guilty, accepting a plea agreement of six to fifteen years for each charge. At
sentencing, Davis’s counsel failed to make an argument for a sentence of less than fifteen years per charge. Davis
petitioned the state court for a writ of habeas corpus, because of ineffective assistance of counsel, but the state court,
as well as the state Supreme Court, denied his petition. Davis then filed a petition for habeas corpus in U.S. district
court, which dismissed the petition for lack of proof of a resulting prejudice. On appeal, the Ninth Circuit reversed,
noting that although the state court's decision did not contradict a "clearly established federal law," it was based on a
mistaken understanding of Davis’s plea agreement. The Ninth Circuit noted that Davis did not agree to two fifteenyear sentences, but rather to two six to fifteen year sentences. Based on this misunderstanding, the Ninth Circuit
concluded that Davis may meet the requirements for habeas corpus. REVERSED AND REMANDED. Concurrence
by Judge Graber. [Summarized by Shannon Durfey]
U.S. v. Garcia-Beltran
No. 05-30434 (04/06/06)
Before Circuit Judges Graber, Rawlinson, and Otero, United States District Judge for the Central District of
California
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/849EA77A4F8BE3E48825714800016202/$file/0530434.pdf?ope
nelement
CRIMINAL PROCEDURE / IDENTIFICATION / ADMISSIBILITY
Opinion (Otero): Filimon Garcia-Beltran (Garcia-Beltran) appealed the district court’s grant of approval allowing
the government to require Garcia-Beltran to provide a pretrial fingerprint exemplar. Garcia-Beltran was taken into
custody after an arrest lacking probable cause, and fingerprinted three separate times. The first set of prints were
used for investigative purposes, the second were unusable, and the third were used to identify Garcia-Beltran. The
Ninth Circuit in an earlier decision on the merits of Garcia-Beltran’s first set of fingerprints, ruled that fingerprints
taken solely for investigative purposes must be suppressed, and thus only examined the question of whether
fingerprints taken for identification purposes only could be used. The Ninth Circuit held that despite GarciaBeltran's illegal arrest and subsequent identification, prior Ninth Circuit decisions have held that evidence
concerning the identity of a defendant, even if obtained after an illegal action by the police, are not suppressible as
“fruit of the poisonous tree.” The Ninth Circuit looked to other Circuit Court decisions to confirm their
interpretation of the issue and found others that resembled their holding in this case. The Ninth Circuit therefore,
upheld the district court’s grant of approval. AFFIRMED [Summarized by Melissa Rogers]
Jones v. City of Los Angeles
No. 04-55324 (04/14/06)
Before Circuit Judges Rymer, Wardlaw, and Reed, Senior District Judge for the District of Nevada
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8138B5E4723C6FE988257150005B327E/$file/0455324.pdf?ope
nelement
CONSTITUTIONAL LAW / EIGHTH AMENDMENT / CRIMINALIZATION OF STATUS
Opinion (Wardlaw): Edward Jones (Jones) and six other homeless individuals sued the City of Los Angeles (the
City) stating that its ordinance that prohibited a person from sitting, lying or sleeping upon any public sidewalk or
public way was unconstitutional as applied under the eighth amendment. They sought an injunction that prohibited
the enforcement of the ordinance at all times of the day. The City moved for summary judgment stating that the
Eighth Amendment did not apply. The District Court granted the motion and Jones appealed. The parties dispute the
standard of review which the Ninth Circuit held was de novo for the constitutional issues. Further, the Ninth Circuit
determined that Jones had standing because the third area of Eighth Amendment protection covered pre-conviction
punishment by the state. In reaching the merits of the case, the Ninth Circuit determined that the district court failed
- 10 -
to adequately analyze the case under the appropriate United States Supreme Court cases. In undertaking its own
analysis, the Ninth Circuit determined that the Eighth Amendment prohibits the criminalization of “an involuntary
act or condition if it is the unavoidable consequence of one’s status or being.” As result, the Ninth Circuit held that
the City’s ordinance was unconstitutional as applied because it criminalized behaviors that were the unavoidable
consequence of being human and homeless. The Ninth Circuit stated that the City could not enforce its ordinance at
all times of the day. REVERSED AND REMANDED. Dissent by Rymer. [Summarized by Michael Elliott]
U.S. v. Thornton
No. 04-50226 (04/17/06)
Before Circuit Judges Hall, O’Scannlain, and Paez
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/32728C4F0D3ECC9E882571530058DD6F/$file/0450226.pdf?op
enelement
CRIMINAL LAW / DRIVING UNDER THE INFLUENCE / SAFETY VALUE PROVISION
Opinion (Paez): James Thornton. Jr, pled guilty to conspiracy to distribute a control substance and signed a plea
agreement. The agreement included a safety value provision allowing the court to impose a sentence without
considering the mandatory minimum sentence requirements for the crime committed. The provision required
Thornton to have less than one criminal point on his record. Thornton argued that his three criminal points where
erroneously counted because driving with a blood alcohol level of .08 or higher should be considered a minor traffic
violation. The other points accumulated were based on offenses committed while on parole for the prior crime. The
district court held that Thornton was ineligible for the safety value relief based on Thornton’s criminal points. The
Ninth Circuit held that Thornton was ineligible for the safety value relief. The Ninth Circuit based its decision on the
similarity of driving with a blood alcohol level of .08 to that of driving under the influence, which is explicitly stated
to apply in the criminal point score under the sentencing guidelines. AFFIRMED. [Summarized by James Fisher]
U.S. v. Johnson
No. 02-50618 (04/13/06)
Before Circuit Judges Trott, Rymer and Thomas.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8E070C1107DB03AD8825714E007DC72A/$file/0250618.pdf?o
penelement
CRIMINAL LAW / SENTENCING GUIDELINES / ENHANCEMENT
Opinion (Trott): Edward Johnson was convicted of conspiracy to commit robbery and armed bank robbery. Though
originally indicted for brandishing a firearm during a crime of violence, the jury was unable to convict on that
charge. Johnson moved for an acquittal on the brandishing charge, which was denied. Johnson was given an
enhanced sentence based on the use of a firearm, bodily injury to the victims, and physical restraint of the victims.
Johnson appealed and first argued that the jury’s inability to convict on the brandishing charge amounted to implicit
acquittal and the charge should be dismissed with prejudice. Johnson further argued that the sentence enhancement
was improper because he was not convicted on the brandishing charge. Lastly, he argued that he was entitled to a
reduction for accepting responsibility. The Ninth Circuit reasoned that because a rational trier of fact could have
found evidence of the brandishing charge, the denial of acquittal was proper and the question would be left for
ultimate disposition on remand. The court next addressed Johnson’s sentence enhancement, and held that the trial
court failed to find the enhancement factors by clear and convincing evidence.
CONVICTION AFFIRMED AND SENTENCE VACATED AND REMANDED. [Summarized by Andrew Naylor]
U.S. v. Ferryman
No. 05-30081 (04/18/2006)
Before Circuit Judges Rawlinson, Clifton, and Burns, District Judge for the Southern District of California
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3BE456B4088FA61588257153007EBFC5/$file/0530081.pdf?op
enelement
CRIMINAL LAW / SENTENCING GUIDELINES / SAFETY VALVE RELIEF
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Opinion (Clifton): Defendant Lee Murry Ferryman was convicted for manufacturing marijuana and possession of
firearms by an unlawful user of marijuana. This conviction came with a mandatory minimum sentence of sixty
months unless Ferryman qualified under the safety valve exception, which requires that the defendant prove that it
was “clearly improbable” that he possessed the firearms in connection with the marijuana manufacturing.
The district court found that Ferryman did not qualify under the safety valve exception and sentenced him to the
mandatory minimum sixty months. The Ninth Circuit, under a clearly erroneous standard, affirmed the district
court’s finding that Ferryman intended to use the firearms to defend his marijuana production, and did not allow
safety valve relief to reduce Ferryman’s sentence. AFFIRMED. [Summarized by Lindsey Burton]
U.S. v. Miqbel
No. 05-10033 (04/17/06)
Before Circuit Judges: Reinhardt, Thomas, and Restani, Chief Judge, the United States Court of International trade
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A70733AC99B79DDE8825715300588D9D/$file/0510033.pdf?o
penelement
CRIMINAL LAW / SENTENCING GUIDELINES / VARIATION
Opinion (Reinhardt): In February of 2001, Jawad Miqbel pled guilty to knowingly possessing a listed chemical that
will be used to manufacture methamphetamine in violation of a federal statute. Miqbel violated his parole in June of
2004 by carrying 7.1 grams of marijuana and 1.3 grams of methamphetamine. The sentencing guideline for Class C
violations recommends that the sentence be between three and nine months. The trial Judge sentenced Miqbel for
twelve months. The judge’s reason for additional time was only that three to nine months would be insufficient to
satisfy the purpose of the sentence. The Ninth Circuit held that, when varying from sentencing guidelines, a Judge
must state specific reasons why the sentencing guideline range is insufficient and why the new sentence is
appropriate. The Ninth Circuit stated that the factors used in determining a sentence outside of the guidelines must
be stated at the sentencing hearing and during the time of sentencing. Also, a judge sentencing outside of the
guidelines must state the specific factors that were used to reach the conclusion of the court. VACATED AND
REMANDED. [Summarized by Vicky Schwartz]
U.S. v. Elliot
No. 04-10571 (04/18/06)
Before Circuit Judges McKeown, Clifton, and Bright, Senior United States Circuit Judge for the Eighth Circuit
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3F3BC7C3150822D588257153007E9D06/$file/0410571.pdf?op
enelement
CRIMINAL PROCEDURE / FIFTH AMENDMENT / DOUBLE JEOPARDY
Opinion (Clifton): Defendant Basho Elliot, charged with a cocaine offense, filed a motion to dismiss on double
jeopardy grounds. The district court declared Elliot’s first trial a mistrial. Elliot’s counsel was also counsel for one
of the defense witnesses regarding the same matter and a conflict of interest arose. Elliot refused to wave his right
to conflict-free representation but insisted on keeping the conflicting counselor. The district court questioned the
defense about the conflict of interest and the possibility of mistrial but the defense declined to offer an opinion. The
court district court determined Elliot was trying to build an issue for appeal and that there was a “manifest necessity”
for a mistrial. The Ninth Circuit denied Elliot’s motion to dismiss on double jeopardy grounds because retrial is
allowed when there is a “manifest necessity” for a mistrial. The Ninth Circuit held the district court did not err in
finding a manifest necessity for a mistrial because the district court carefully examined the issue and determined the
conflict of interest would almost certainly result in reversal of a conviction on an appeal. AFFIRMED.
[Summarized by Carrie Eastman]
Raley v. Ylst
No. 04-99008 (04/14/06)
Before Circuit Judges Silverman., Graber, and Clifton.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DFF91FB11237EF7D8825714F006B4BE6/$file/0499008.pdf?op
enelement
CRIMINAL PROCEDURE / INAFFECTIVE ASSISTANCE OF COUNSEL
- 12 -
Opinion (Graber): David Raley was sentenced to death after being convicted of kidnapping, torture, murder and
attempted murder. Raley appealed his conviction and death sentence because of ineffective assistance of counsel,
and possible jury misconduct. Raley had two attorneys, one for each of his two trials, the first ended in a mistrial,
and each attorney decided not to put psychiatrists on the stand to testify about Raley’s mental state. Both attorneys
had multiple psychiatrists look at Raley, but none of them came to the same conclusion on Raley’s mental state.
The Ninth Circuit looked to the Strickland standard to determine if there was ineffective assistance of counsel. The
Ninth Circuit held that, in this case, the counselors did an adequate job by going to three different psychiatrists each
time and each made a competent decision in not having them testify. This made it so that the representation was not
deficient and it was not deficient it could not have decided the case unfairly. Furthermore, the Ninth Circuit also
found that the jury did nothing wrong when deliberating so his claim of jury misconduct was denied as well.
AFFIRMED. [ Summarized by Nicholas Wood ]
OREGON SUPREME COURT
Engweiler v. Board of Parole
Case No.: S52165 http://www.publications.ojd.state.or.us/S52165.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Gillette, J.) An order of the Board of Parole and Post-Prison Supervision is not reviewable
unless it is a final order that adversely affects the grant, revocation, or discharge of parole of a convicted person.
This is one of two related cases decided on this date. Engweiler was convicted, in 1990, of aggravated murder at
age 15 and was sentenced to a life sentence with a 30 year minimum. On appeal it was determined that the sentence
was in violation of Oregon statutory law which prohibited the imposition of a mandatory minimum sentence on any
person remanded from juvenile court under the age of 17. On remand Engweiler had an indeterminate life sentence
imposed. In 1999 the defendants (Board) held a “prison term” hearing for petitioner under a prison term matrix it
had newly established to specifically deal with juveniles convicted of aggravated murder. Engweiler appeals the
Board’s decision establishing a 480 month “prison term” and the setting of a “murder review” date in 2030.
Engweiler contends this final order imposes upon him a harsher penalty than which could have been imposed at the
time of conviction. The Board moved to dismiss the review as unreviewable because the statute eliminates review
of any order relating to a release date or parole consideration hearing date. Initially, the Court of Appeals agreed
with Engweiler, but then upon its own motion reconsidered its decision. The court concluded the Board had actually
not set an initial release date for Engweiler. Affirmed. [Summarized by Sheryl Oakes Caddy.]
Engweiler v. Cook
Case No.: S52169 http://www.publications.ojd.state.or.us/S52169.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Gillette, J.) A parole release date must be set before an inmate’s sentence can be reduced
under ORS 421.121 because a “term of incarceration” refers to time spent in prison before an inmate is eligible for
parole.
Engweiler was convicted of aggravated murder in 1990. In 1999, the Board of Parole and Post-Prison Supervision
issued a Board Action Form setting Engweiler’s prison term at 480 months. Engweiler argued that ORS 421.121
required a reduction, for good behavior, of his term of incarceration, which he argued was the 480 month prison
term. The legislative intent shows that “term of incarceration” refers to time spent in prison before an inmate can be
eligible for parole. However, Engweiler is not serving a term of incarceration as defined by the statute because his
480 month sentence is the maximum term that he can serve. It is not a term of incarceration. Engweiler will not be
eligible for a reduction in his prison term until a parole release date is set for him, which will determine his “term of
incarceration” as required by ORS 421.121. Affirmed. [Summarized by Megan Thornton.]
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OREGON COURT OF APPEALS
State v. Ramirez
Case No.: A123657 http://www.publications.ojd.state.or.us/A123657.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Landau, J.) When a case lacks competing inferences with regards to a defendant’s failure
to object, a court has committed plain error, and it is appropriate for a court to address the error by a lower court
when a significant liberty interest is at stake.
After a jury trial, Mr. Ramirez, was convicted of attempted murder, assault in the first degree, and unlawful use of a
weapon. The trial court issued an upward durational departure sentence. Mr. Ramirez appealed, arguing that the
trial court erred in imposing a departure sentence based on facts he did not admit and the jury did not find. Mr.
Ramirez admits that he did not make such a challenge to the trial court, but claims that the sentence should be
reviewed as plain error. For plain error to be present there must be no doubt that what the trial court did amounted
to legal error. Furthermore, if a court could draw competing inferences from a defendant’s failure to object, one
showing the trial court erred, and the other suggesting no error, then there is no plain error. Due to the lack of
competing inferences in regards to Mr. Ramirez’s failure to object when the trial court made its departure findings,
the trial court committed plain error. The court stated that it was appropriate for them to address the error because a
significant liberty interest was at stake. [Summarized by Casey Kovacic.]
State v. Stalder
Case No.: A122559 http://www.publications.ojd.state.or.us/A122559.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING (Opinion by Landau, P.J.): A sentence is not valid (1) if it is not precise and is, thus, indefinite; and (2) if
the judge does not reduce any post-prison supervision time so that the sentence conforms to the statutory maximum.
A jury found Stalder guilty of felony assault in the fourth degree. Afterward, the trial court sentenced Stalder to 40
month’s imprisonment and 24 month’s post-prison supervision. Because Sadler's sentence violated the five-year
statutory maximum for a class C felony, the court specified that the sentence shall not exceed 60 months. On appeal,
Stalder argues that his sentence is both indefinite and excessive. The Court of Appeals agreed with Sadler's position.
First, a sentence is indefinite if it is not precise. In this instance, Sadler's combined sentence must not exceed 60
months. However, the amount of time Stalder spends in post-prison supervision depends on when he is released
from jail, anywhere from 20 to 24 months time. Thus, the sentence is not precise. Furthermore, a sentence is
excessive if a court does not reduce the duration of post-prison supervision so that the total sentence conforms to the
statutory maximum. In this case, the judge did not reduce the sentence. He merely specified that the sentence should
not exceed the statutory maximum. Remanded for resentencing; otherwise affirmed. [Summarized by Mark Mayer.]
McCline v. Board of Parole and Post-Prison Supervision
Case No.: A123491 http://www.publications.ojd.state.or.us/A123491.htm
AREA OF LAW: PAROLE AND POST-PRISON SUPERVISION
HOLDING: (Opinion by Schuman, J.) The Board of Parole and Post-Prison Supervision’s postponement of parole
because a prisoner suffered from severe emotional disturbance and posed a danger to the community does not
violate a federal court injunction, nor does relevant law preclude the Board from exercising its discretion.
George McCline (McCline) appeals the Board of Parole and Post-Prison Supervision’s (Board) decision to postpone
his parole. McCline was convicted of murder in 1978 and eligible for parole in 2003. During his exit interview, the
Board postponed release, finding McCline was severely emotionally disturbed and posed a danger to the
community. McCline argues that the Board violated a federal court injunction because the relevant law at the time
of his conviction, ORS 144.125(3), was partially invalidated by Daniels v. Cogswell. Daniels precluded the
postponement of parole based solely on severe emotional disturbance. The Court of Appeals held that the Board did
- 14 -
not violate the Daniels injunction because the Board postponed on the bases of severe emotional disturbance and
dangerousness. McCline further argued the Board’s determination of “dangerousness to the community” is a
criterion not authorized by the statute. The Court analyzed the statute and concluded that the Board had discretion
to consider dangerousness. Affirmed. [Summarized by Ashlee Stefani.]
ARTICLE OF THE WEEK
Should Graphic Testimony About 9/11 Have Been Heard By the Moussaoui Sentencing
Jurors? The Continuing Controversy over the Use of Victim Impact Evidence
By EDWARD LAZARUS
Friday, Apr. 14, 2006
Throughout this week, jurors in the death penalty trial of Zacarias Moussaoui have been listening to testimony about
the terrible experiences of dying victims -- testimony from both their family members and the emergency response
workers who tried so valiantly to help reduce the carnage from the worst terrorist attack in U.S. history. Even the
haunting voices of victims themselves, captured on 911 calls, have been heard.
The recounting of the stories of loved ones lost in the suffocating heat and smoke of the Twin Towers and the
Pentagon has been heart-stoppingly powerful, and for family members, it seems, a useful catharsis. Through the
tears and grief, the witnesses seem as though they are inching towards at least some partial and imperfect
reconciliation with the cruelty visited upon them by the suicide hijackers.
But this phase of the trial - with its terrified cries for help from lost mothers and fathers, its tales of immeasurable
bravery and incalculable loss - still raises a troubling legal question: Is this any way to decide whether to kill a man?
Victim Impact Evidence: The Arguments For and Against Its Use
Not that long ago, the Supreme Court's answer to this question had been "no." In the 1987 case Booth v. Maryland, a
closely divided Court had declared it unconstitutional for prosecutors to use what is known as "victim impact
evidence" when seeking the death penalty.
But Chief Justice William Rehnquist considered Booth an abomination - one that he would never accept as settled
precedent. And in 1991, after Justice David Souter replaced Justice William Brennan, Rehnquist amassed a majority
to overturn Booth. In Payne v. Tennessee, a majority of the Court restored victim impact evidence as an acceptable
(indeed, common) aspect of capital sentencing proceedings.
There is basically no chance that the current Court will revisit the victim impact debate yet another time. But the
wisdom of letting prosecutors present the testimony grieving family members -- and even the disembodied voices of
the dead -- before capital jurors remains a vexing question. And as the jury deliberates over Moussaoui's fate, it is
worth revisiting the pros and cons of judging whether someone deserves to live or die based on the loss suffered by
those who knew and loved the victim.
Rehnquist's majority opinion in Payne effectively described the value of victim impact evidence. Excluding such
evidence, he wrote, deprives the state of "the full moral force" of its case for the death penalty and turns "the victim
into a faceless stranger."
Opposing the practice, Justice Stevens was equally succinct: Victim impact evidence, he wrote, is "irrelevant to the
defendant's moral culpability." It inevitably diverts the focus of capital sentencing away from a rational evaluation
of the severity of the crime and the heinousness of the defendant's conduct, and toward an emotional assessment of
the social value of the defendant's victims.
Who Is Right In the Victim Impact Evidence Debate that Divided the Court?
There is merit to both sides of this argument, at least for anyone who is not a death penalty abolitionist.
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The death penalty is, to me, most persuasively justified as a moral statement of communal outrage - a punishment
that reaffirms the social contract by declaring some conduct so reprehensible, so "inhuman," that its perpetrator no
longer deserves to live.
In the context of such a communal condemnation, it seems perfectly fitting and appropriate to permit members of
the community to describe for their peers on the jury the full measure of what the defendant has, in some sense, cost
them all.
It is hardly unusual in the law for consequences to matter. For instance, a murder is punished more harshly than an
attempted murder, even if the difference between the two was merely bad aim.
And it is hard to see why the consequences to friends, family, and society as a whole should not matter. The law
typically does not judge conduct in a vacuum; it puts it in context for jurors to consider.
Rehnquist was also not wrong to suggest that exiling the victims and their families from the capital sentencing
process is artificial and perhaps, as he saw it, dehumanizing. One purpose of the criminal law process surely should
be the achievement of some measure of closure for both the immediate circle of the victim, and society more
broadly. Victim impact testimony creates an avenue for participation of those most deeply aggrieved, and thus
furthers this goal.
On the other side, however, Stevens's points are also well taken. While the emotions of outrage and even vengeance
will inevitably play a role in capital sentencing, ultimately it is a process that ought to be guided by a reasoned
assessment of whether the defendant's conduct was truly so extreme that it merits the ultimate punishment. Victim
impact evidence, by injecting the most searing and irrebuttable grief into to the courtroom, makes this rational
calculus much more difficult to achieve.
No less important, victim impact evidence carries with it an inherent risk of discrimination. In determining whether
a defendant should die for his (or her) crimes, should it matter whether the victim was part of a loving family or
popular at school? Of course it shouldn't.
Yet by its very nature, victim impact evidence seems to invite a "valuation" of the victim as part of the sentencing
process. And that opens the door to all kinds of inappropriate considerations, including the possibility that some
jurors in some places will value victims of one color, ethnicity, or religion more than victims of another color,
ethnicity or religion. Careful statistical studies of capital sentencing tell us this is more than just a risk; it is reality.
There is also some danger in the close alliance that tends to form between prosecutors and the families of victims in
part as the result of victim impact evidence playing a prominent role at sentencing.
To be sure, prosecutors should be sensitive to the cares and sensitivities of victim's families in their handling of
cases. There is, of course, no group that cares more about seeing justice done than those who were close to the
victim - and that is a position prosecutors must respect and honor.
At the same time, however, ours is not a system of private prosecution. Criminal cases are brought on behalf of the
State - the community whose laws and membership have been violated - not on behalf of individuals.
At times, the interests of victims and the interests of the State itself may somewhat diverge - and it is a prosecutor's
job to keep the State's interests at the forefront. Yet the process of working with victim impact witnesses can cloud
prosecutorial judgment in this regard.
How the Moussaoui Trial Illustrates the Two Sides of This Important Debate
The pros and cons of victim impact evidence have come into fearful collision in the Moussaoui trial.
The searing testimony has restored to our collective memory the shock and devastation of that terrible morning - and
the horrifying nature of what the terrorists did. It helps answer the question of why the defendant has qualified to
face a death sentence in this case. Moreover, from what an outsider can tell, the witnesses appear to be comforted by
their participation, and by the way the victims - their loved ones - have returned from the great beyond to retell their
last moments for the jury.
- 16 -
But it is very hard to escape the feeling that this solemn and, in some ways, salutary process has become
disproportionate and misdirected.
How can any juror make a rational judgment about Moussaoui's own level of culpability in the crime after hearing
day after day of such wrenching testimony?
With the exception of Moussaoui's own belatedly-offered self-incriminating testimony - testimony that Findlaw
columnist Elaine Cassel effectively showed to be highly suspect -- the evidence in this case shows that this
defendant - albeit an al Qaeda member -- had little to do with, and little knowledge of, the events of 9/11. Yet in all
likelihood, he is going to be sentenced to death on the basis of the emotion-laden victim impact testimony from the
events of that day.
I sympathize with the prosecutors. The burden of being, in effect, the victims' representatives in this case surpasses
in difficulty even the role played by the prosecutors in the Oklahoma City bombing case.
But one has to wonder whether the nation's interests are being well-served by foisting upon this despicable, but also
unstable and pathetic defendant a largely unproven burden of blame for one of the worst crimes history has known.
At the highest reaches of the Justice Department, someone should be saying that - despite the headlines and riveting
narratives from the trial, and despite the truth that national catharsis is a worthy purpose -- a false catharsis may
prove cheapening to us all.
FROM THE POND
4/21/2006
[mcadpond] New BM-11 amendment from yesterday's special session
riederlawoffice@teleport.com
Here's the link to the bill amending ORS 137.700:
http://www.leg.state.or.us/06ss1/measpdf/hb3511.en.pdf
Response: olcott@open.org
Because all the felonies with the 25 year minimums are class A felonies I don't think there are
proportionality issues with the sentences. There are possible proportionality problems with the term of post
prison supervision when compared to murder. Murder is more serious as it has a life term of prison with a
25 year minimum rather than just a 25 year term. All have a life term of post prison supervision but the sex
felonies require 10 years of active supervision while murder just requires three years of active supervision.
Another constitutional issue is the da's office must have a policy, consistently applied, regarding who is
charged for 12 year old victims. Most such crimes likely can be charged both as 12 year old victims and
other theories for same charge. DA must have policy for how they charge (and allow pleas) and
consistently apply it. Equal privileges and immunities (Or Const) and due process and equal protection
(Fed Const) problems.
Finally, this bill we provide folks who do indigent defense how much the PDSC is willing to go to bat for
us. The PDSC has no money in its budget for these cases. Early estimates are cost will be at least $4000
more than a ballot measure 11 case. I think it will be more, approaching murder which is an average of over
$18,000 state wide. So now what will the PDSC do? It can take a hard line with the legislature and tell it
either we will not approve appointment of any counsel for these cases unless you give us more money or
we will approve appointment for these cases but we will run out of money and then will not approve
appointment of counsel in any cases. Or it can just go along as indigent defense has done in the past and
muddle through. This issue should come up at the May PDSC meeting.
Response: riederlawoffice@teleport.com
Isn't the statutory maximum sentence on an A Felony, 20 years? Are these three crimes still A felonies?
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4/25/2006
[Ocdlapond] New sentencing law
jessbarton@msn.com
You probably heard that in its special session, the legislature passed a bill upping the ante for certain sex or sexrelated crimes. The bill is HB 3511. Only a handful of representatives (including Mike Greenlick's dad), but *no*
senators, voted against it. The Governor signed it yesterday, April 24, 2006. Because of its emergency clause, it took
effect yesterday and has been the law since then. This means it applies to crimes committed on or after yesterday.
The bill does two things. The main thing is its modification of the mandatory minimums for four crimes in the
Measure 11 list. It increases the minimums for the statutory (victim under 12) versions of first-degree rape, sodomy,
and sexual penetration, from 100 months to 300 months (i.e., to the same as the minimum for murder). It also
increases, from 90 months to 300 months, the minimum for first-degree kidnapping if the kidnapping was
"committed in furtherance of the commission or attempted commission of" the three sex offenses now carrying 300month minimums.
The second thing the bill does is, for the same four crimes which now carry 300-month minimums, increase the PPS
20 years minus time served, to life (with a mandatory active-supervision minimum of 10 years).
Again, HB 3511 took effect yesterday, April 24, and it applies to crimes committed or after yesterday.
Response: jessbarton@msn.com
In an email to Brian Conry, I explained that it was my understanding that OPDS did tell the legislature the
anticipated financial burden the bill would put onto the indigent-defense fund. I'd have been (pleasantly)
stunned if the legislature--in an election year no less--had decided to go the fiscally conservative route and
table the bill (particularly when the bill's proponents were threatening to take the matters to the voters, by
initiative, if the bill failed).
I don't know if the legislature gave OPDS the commensurate supplemental appropriation. The legislature's
web page doesn't say. But I doubt that OPDS got any more money (notwithstanding the fact that in HB
3510, the legislature authorized drawing $42,245,000 from the lottery fund and giving it to the state school
fund). Assuming the legislature gave OPDS no additional money, the bill effectively cut the OPDS budget
by the same amount as the cost of the bill.
Out of curiosity, does anyone know if contract rates were adjusted upward to account for the additional
effort providers will make defending cases that, thanks to Blakely, now will have penalty-phase jury trials?
Response: michaellevineesq@aol.com
The sex crimes I have dealt with so far with are family incest or molestation of daugter of live-in girlfriend
etc, the so-called "residential molestor." This gives the state a real sword. If you're lucky the state will offer
you the Measure 11. Could see serious increase in trials of these cases. Getting more and more like
the federal system and in many ways worse. One unintended consequence of this kind of draconian penalty
could be incentive for the true predator to murder the victim.
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