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OCDLA Email Summary
February 12, 2004 – February 25, 2004
This Issue:
Supreme Court Cases…………... 2
9th Circuit Cases………………... 5
Oregon Court of Appeals………. 8
Discussion:
Article of the Week
………………… 9
Cartoons…………………………… 12
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US SUPREME COURT
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Groh v. Ramirez
Decided: 2/24/04
No. 02-811
Full text: http://www.supremecourtus.gov/opinions/03pdf/02-811.pdf
FOURTH AMENDMENT (Search Warrant without Description of Items Sought Unconstitutional)
The United States Supreme Court held 5-4 (opinion by Stevens, dissents by Kennedy and Thomas) that a warrant
failing to identify items to be searched is unreasonable under the Fourth Amendment, despite supporting police
documents describing the items.
Jeff Groh (Groh), a special agent for the Bureau of Alcohol, Firearms, and Tobacco, received a report from a
concerned citizen detailing weapons and explosives on the ranch of Joseph Ramirez (Ramirez). Consequently, Groh
completed a warrant application, prepared a supporting affidavit, filled out a warrant form, and provided these
documents to a magistrate for an approval signature. Although the warrant application stated that the search was
intended to discover firearms and explosives, the "items to be seized" portion of the warrant form listed only "a
single dwelling residence, two story in height, which is blue in color." One day after the magistrate signed the
warrant, Groh conducted a search of the Ramirez ranch, finding no weapons or explosives. Ramirez sued in the
United States District Court of Montana, alleging that because the warrant was insufficient on its face, Groh's act
constituted an illegal search in violation of the Fourth Amendment. The District Court found no Fourth Amendment
violation and granted summary judgment in favor of Groh. However, the United States Court of Appeals for the
Ninth Circuit (Court of Appeals) held that Groh's search failed to comply with the Fourth Amendment. In
Accordance with the Court of Appeals conclusion, the United States Supreme Court held that Groh's warrant was
"unreasonable" under the Fourth Amendment because it was ambiguous and failed to describe the items sought with
any particularity. In addition, the Court rejected the argument that the warrant application's specific description
saved the actual warrant. Finally, the Court concluded that Groh was not entitled to qualified immunity because the
warrant's facially apparent defect rendered Groh's act unreasonable. [Summarized by R. Grant Cook.]
Illinois v. Fisher
Decided: 02/23/04
No. 03-374
Full text: http://www.supremecourtus.gov/opinions/03pdf/03-374.pdf
CRIMINAL PROCEDURE (Due Process not Violated by Destruction of Potentially
Exonerating Evidence Absent Bad Faith)
The United States Supreme Court held per curium (concurrence by Stevens) that due process is not violated when a
state destroys "potentially useful" evidence, absent bad faith.
Gregory Fisher (Fisher) was arrested after a traffic stop where a package of white substance was seized. The State
of Illinois (the State) conducted tests on the package that concluded the substance was cocaine. Fisher motioned for
discovery as to the substance. Fisher was released on bond pending trial. However, Fisher failed to appear in court
and the court issued a warrant for his arrest. The State later destroyed the substance per department policy. Ten
years later, the State arrested Fisher when he was detained for an unrelated matter. At trial, Fisher filed a motion to
dismiss the cocaine-possession charge based on the State's destruction of evidence. The motion was denied. The
trial court found Fisher guilty, but the Appellate Court of Illinois (Appellate Court) overruled this on due process
grounds. The Appellate Court reasoned that the destruction of evidence that may be the only means of exoneration
violates due process and that bad faith is not necessary. The United States Supreme Court (the Court) reversed,
holding that bad faith must be shown when "potentially useful" evidence is destroyed. The evidence that was
destroyed would only have a possibility of exonerating Fisher if tested again. Thus, there must be a showing of bad
faith for this to result in dismissal of the charges. On the other hand, due process is violated when "material
exculpatory" evidence is destroyed, regardless of whether it was done in good or bad faith. [Summarized by Beth
Hughes.]
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Leocal v. Ashcroft
Certiorari granted: 02/23/04
No. 03-583
Case below: unreported
Full text unavailable, further information available at:
http://www.usdoj.gov/osg/briefs/2003/0responses/2003-0583.resp.html
IMMIGRATION LAW (Definition of Aggravated Felony for Purposes of Removal Proceedings)
The issue in this case is whether a conviction for driving under the influence, causing serious bodily injury,
constitutes an "aggravated felony" under United States immigration laws.
The State of Florida convicted Josue Leocal (Leocal), a lawful resident alien, of driving under the influence (DUI)
causing serious bodily injury to another, a felony. Leocal received a sentence of two and a half years. The
Immigration and Naturalization Service (INS) commenced proceedings against Leocal to remove him from the
United States. The INS asserted that Leocal's conviction constituted an "aggravated felony" for which he could be
removed. An aggravated felony is defined by statute as a crime of violence for which the term of imprisonment is
more than a year. An immigration judge determined that Leocal was removable as charged by the INS. The Board of
Immigration Appeals (BIA) agreed and ordered Leocal removed. Leocal then appealed to the United States Court of
Appeals for the Eleventh Circuit (Court of Appeals), which affirmed the BIA decision. Under the Court of Appeals'
precedent, a conviction for DUI causing serious bodily injury to another is considered a crime of violence.
According to federal statute, courts cannot review final orders of removal against aggravated felons. Because Leocal
is considered an aggravated felon under its own definition of the term, the Court of Appeals determined that it did
not have jurisdiction to consider his appeal. [Summarized by Daniel Hutzenbiler.]
Jama v. I.N.S
Certiorari granted: 02/23/04
No. 03-674
Court below: 329 F.3d 630 (8th Cir. 2003)
Full text: http://ilw.com/lawyers/immigdaily/cases/2003%2C0528-jama.pdf
IMMIGRATION LAW (Permission From Destination Country Prior to Removal)
The issue is this case is whether under federal law, the INS is required to obtain permission from an alien's
destination country before removing the alien to that country.
Keyse Jama (Jama), a Somalian refugee, pleaded guilty to assault three years after entering the United States. Soon
after, the Immigration and Naturalization Service (INS) began removal proceedings. The Board of Immigration
Appeals affirmed the immigration judge's decision that rejected Jama's applications for humanitarian relief. The
INS issued a warrant of removal to Jana and he filed a petition for a writ of habeas corpus to prevent the removal.
Jana argued that under federal law, the INS could not force him to return to Somalia without Somalia first accepting
his return. The United States District Court for the District of Minnesota (District Court) ruled in favor of Jama and
the INS appealed claiming that the District Court did not have jurisdiction to hear the case and that the INS was not
required to obtain permission from Somalia. The United States Court of Appeals for the Eighth Circuit held that the
District Court had jurisdiction to consider the petition and that federal law does not require acceptance from the
alien's destination country before removing him to the country. [Summarized by Mikki Kelly.]
Beard v. Banks
No. 02-1603
Argued: 02/24/04
Court below: 316 F.3d 228 (3d Cir. 2003)
Full text: http://caselaw.lp.findlaw.com/data2/circs/3rd/999005p.pdf
CRIMINAL PROCEDURE (Whether the Mills Rule is a New Rule that May Not be Applied Retroactively to Final
Cases)
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The issue in this case is whether a rule established in Mills v. Maryland (the Mills rule), prohibiting a unanimity
requirement for mitigating circumstances in capital cases, is a new rule, such that it should be applied retroactively
despite final judgment.
George Banks (Banks) was convicted of twelve counts of first degree murder and one count of third degree murder
in 1987. During his sentencing the State of Pennsylvania sought to prove aggravating circumstances while Banks
sought to show mitigating circumstances. A jury unanimity requirement for the mitigating circumstances was
included in the jury instruction for sentencing. In 1988 the United States Supreme Court decided Mills v. Maryland,
stating the Mills rule. In 1989, Banks filed a petition for collateral review under the Pennsylvania Post Conviction
Relief Act (PCRA), claiming for the first time that the jury unanimity requirement for mitigating circumstances
violated Mills. The petition was denied. Banks then filed two habeas petitions with new claims. On the second
habeas petition the United States Court of Appeals for the Third Circuit (Court of Appeals) granted Banks a new
sentencing hearing based on the Mills rule, but refused to consider whether Mills could be applied retroactively to
Banks' case because his judgments were final prior to the Mills decision. On remand the Court of Appeals held that
Mills did not create a new rule and thus was applicable to Banks' case. On appeal to the United States Supreme
Court (the Court), Pennsylvania argues that Mills did create a new rule and thus bars retroactive applicability
because of the Court's ruling in Teague v. Lane, stating with rare exception "new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before the new rules are announced."
Pennsylvania also argues that the Mills rule does not fall within one of the two narrow exceptions allowing
retroactive application on collateral review. Finally, Pennsylvania argues that the Court of Appeals' analysis of
Mills is against the Court's ruling in Teague and does not give the appropriate deference to the reasonable judgments
of state courts. [Summarized by Ann Davison.]
United States v. Flores-Montano
Argued: 02/25/2004
No. 02-1794
Court below: unreported (9th Cir. 2003)
Full text: unavailable
FOURTH AMENDMENT (Whether Reasonable Suspicion Required for Customs Officers at International Border
to Search a Vehicle's Gas Tank for Contraband under the Fourth Amendment)
The issue in this case is whether the Fourth Amendment requires customs officers at the international border to have
reasonable suspicion in order to remove, disassemble, and search a vehicle's gas tank for contraband. Manuel
Flores-Montano (Montano) attempted to enter the United States via the California border. When a customs
inspector questioned him, Montano avoided eye contact with the inspector and appeared to be shaking. The
inspector tapped Montano's gas tank with a screwdriver and noticed that the tank sounded solid. At the same time, a
narcotics detector dog alerted to Montano's vehicle. The inspectors removed Montano from his vehicle and directed
the vehicle to a secondary inspection station where a mechanic removed, disassembled and searched Montano's gas
tank. After searching for approximately one hour, the mechanic discovered 37 kilograms of marijuana bricks in
Montano's gas tank. A grand jury indicted Montano for unlawfully importing marijuana and possession of
marijuana with intent to distribute. At his trial, Montano moved to suppress the drugs, relying on Ninth Circuit
Court of Appeals (Court of Appeals) precedent, "Molina-Tarazon", in which the Court of Appeals held that removal
of a gas tank is a non-routine border search that requires reasonable suspicion under the Fourth Amendment. In
response, the United States argued that the Court of Appeals wrongly decided "Molina-Tarazon." The United States
contended that 19 U.S.C. Section 1581(a) permits customs officers to "search the . . . vehicle and every part
thereof," without a warrant or particularized suspicion. The District Court granted Montano's motion to suppress the
drugs found in the gas tank, finding that the search was non-routine and required reasonable suspicion. The United
States then petitioned for initial hearing en-bank, requesting the Court of Appeals to reconsider its decision in
"Molina-Tarazon." However, the Court of Appeals summarily affirmed the District Court's judgment in an
unpublished opinion. On appeal to the United States Supreme Court, the United States argues that "[t]he
disassembly and search of a vehicle's gas tank at the international border implicates the Nation's acute interest in
protecting against the entry of unauthorized persons and contraband and constitutes a minimal intrusion on a
traveler's property interests." Therefore, the United States contends that such a search is a routine border search that
may be conducted without any level of suspicion. [Summarized by Krista Hardwick.]
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Rumsfeld v. Padilla
Certiorari granted: 02/20/04
No. 03-1027
Court below: 352 F.3d 695 (2nd Cir. 2003)
Full text: http://caselaw.lp.findlaw.com/data2/circs/2nd/032235pv2.pdf
EXECUTIVE AUTHORITY (Presidential Authority to Detain an American Citizen as an Enemy Combatant)
The issue in this case is whether the President has authority to designate as an enemy combatant an American citizen
captured within the United States and, through the Secretary of Defense, to detain him for the duration of armed
conflict with the al Qaeda.
Jose Padilla (Padilla), an American citizen, arrived at Chicago's O'Hare Airport from Pakistan where several FBI
agents arrested him in connection with the terrorist attacks of September 11, 2001. While Padilla was being held as
a material witness, the President issued an order designating Padilla as an enemy combatant and directing Secretary
of Defense Donald Rumsfeld (Rumsfeld) to detain him. Rumsfeld took Padilla into custody and placed him in a
high-security consolidated naval brig where he has since remained with no access to family or counsel. Padilla's
appointed attorney, Donna Newman (Newman), was unable to obtain Padilla's signature for a habeas corpus
petition. Instead Newman filed the petition on Padilla's behalf as "next friend." The United States moved to dismiss
Padilla's habeas petition on the grounds that Newman lacked standing to file the petition, that Rumsfeld was not the
appropriate respondent, and that the United States District Court for the Southern District of New York (District
Court) lacked personal jurisdiction over Padilla. Padilla contended that the United States lacked authority to detain
him and requested access to counsel. The District Court found that Newman had standing to bring the habeas
petition as Padilla's next friend, that Rumsfeld was the proper respondent, and that the District Court had jurisdiction
over Padilla. The District Court also determined that the President has authority to detain American citizens as
enemy combatants. The District Court ordered the parties to set conditions under which Padilla could meet with
counsel, which Rumsfeld refused on the grounds that no conditions could be set that would protect national security.
Instead, the United States moved for certification of the District Court's orders to obtain interlocutory review of the
ruling on the issues which the United States had lost. The Chief Judge certified the orders. The United States Court
of Appeals for the Second Circuit (Court of Appeals) granted the application for interlocutory appeal. The Court of
Appeals affirmed in part, holding that Newman had standing to bring the habeas petition as Padilla's next friend
based on the facts that Padilla is unable to file the habeas petition on his own behalf, that Newman's relationship
with Padilla is significant, and that Newman is not an uninvited meddler. The Court of Appeals also held that
Rumsfeld is the proper respondent because of the unique role that he plays in this matter. Finally, the Court of
Appeals reversed in part, holding that the President lacked inherent constitutional authority to detain Padilla and that
the Non-Detention Act prohibits the detention of American citizens without express congressional authorization.
[Summarized by Krista N. Hardwick.]
9TH CIRCUIT
U.S. v. Daychild
No. 02-30184 (02/17/04)
Before Circuit Judges Alarcon, Gould, and Clifton
http://caselaw.lp.findlaw.com/data2/circs/9th/0230184p.pdf
SENTENCING / SPEEDY TRIAL ACT / REDUCTION AND UPWARD DEPARTURE
Opinion (Gould): Daychild and Neiss, defendants joined for trial, were convicted of conspiracy to possess and/or
distribute marijuana. Neiss was also convicted of unlawful possession of marijuana with intent to distribute and
unlawful possession of a machine gun. Both defendants sought dismissal of their indictments on speedy trial
grounds because more than one year had elapsed between their arraignments and their trial. The Ninth Circuit held
that the plain language of the Speedy Trial Act directs a district court not to count any delay resulting from pretrial
motions, starting from the filing of the motion through the conclusion of the hearing. This includes delays caused by
pretrial motions to continue, motions for psychological examinations and motions to dismiss on speedy trial
grounds. Both defendants contended that the evidence was insufficient to convict them of conspiracy, but the Ninth
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Circuit held that a jury could reasonably conclude from the overwhelming proof that defendants had agreed to
distribute marijuana. Neiss appealed his sentence, arguing that because he admitted to owning and altering the
weapon, he should have received a reduced sentence. The Ninth Circuit held that the district court had discretion to
assess the defendant's acceptance of responsibility. Daychild appealed his sentence, arguing that he was a minor
participant and should have received a lesser sentence. However, the Ninth Circuit held that the district court was
entitled to decline to view Daychild as less culpable, that it could consider his conduct when sentencing, and that it
could depart upward based on his criminal history. Finally, Neiss challenged a taking of judicial notice of his
indictment and a denied claim for prosecutorial misconduct, which the Ninth Circuit found to be proper.
AFFIRMED. [Summarized by Stacey Goodwin]
Hemp Industries v. Drug Enforcement Administration
No. 03-71366 (02/06/04)
Before Circuit Judges Schroeder, Chief Judge, B. Fletcher, and Kozinski
http://caselaw.lp.findlaw.com/data2/circs/9th/0371366p.pdf
CONTROLLED SUBSTANCES ACT / DRUG ENFORCEMENT ADMINISTRATION REGULATION
Opinion (B. Fletcher): Hemp Industries, manufacturers of edible products containing non-psychoactive hemp,
claimed the Drug Enforcement Administration (DEA) wrongfully created a rule that prohibited the sale or
possession of items containing non-psychoactive hemp. The DEA claimed Schedule I of the Controlled Substances
Act (CSA) included non-psychoactive hemp under its definitions of tetrahydrocannabinols (THC) and marijuana.
The DEA therefore created a rule prohibiting the sale or possession of products containing the non-psychoactive
substance. Hemp Industries directly petitioned the Ninth Circuit for review of the DEA's rule, claiming the CSA
specifically excluded non-psychoactive hemp in its definitions of THC and marijuana. The Ninth Circuit reviewed
the DEA's rule by determining whether provisions in the CSA expressly contradicted the DEA's interpretation of the
Schedule I definitions, and, if not, whether the DEA's rule generally violated the permissible interpretations of the
CSA. The Ninth Circuit found that the CSA's definition of THC included only synthetic and psychoactive THC, and
found that the CSA's definition of marijuana expressly excluded non-psychoactive hemp. The Ninth Circuit
therefore determined that the provisions of the CSA expressly contradicted the DEA's interpretation of the
aforementioned definitions. The Ninth Circuit granted Hemp Industries' petition and enjoined enforcement of the
DEA's rule. PETITION GRANTED. [Summarized by Jessica Meyer]
U.S. v. Delgado
No. 02-30363 (02/10/04)
Before Circuit Judges Brunetti, T. Nelson, and Graber
http://caselaw.lp.findlaw.com/data2/circs/9th/0230363p.pdf
CRIMINAL LAW / MENS REA / SENTENCING
Opinion (Brunetti): Police arrested Delgado after witnessing a drug deal involving Delgado and two other
gentleman through video surveillance. Subsequently, Delgado was convicted and sentenced for drug offenses and
conspiracy. Delgado contends that the district court erred in relieving the Government of its burden to prove that
Delgado knew his acts were unlawful through its jury instructions. The Ninth Circuit held, although the
Government had to prove that Delgado knew he possessed some prohibited substance, his knowledge that the
possession constituted a violation of law was not necessary. Further, the Ninth Circuit held the Government did not
have to show Delgado knew assisting in the crime was actually a crime within itself. Next, the Ninth Circuit held the
testimony of Shauers, a government witness who participated in the drug deal with Delgado, which gave rise to this
action, was sufficient to lead the jury to a determination of Delgado's guilt. Third, the Ninth Circuit opined that,
providing the jury with transcripts of Delgado's taped phone conversations did not constitute an abuse of discretion
because they were admitted for the limited purpose of serving as a listening aid. Finally, the Ninth Circuit agreed
with Delgado that, under 18 U.S.C. sec. 3553(c), the district court erred by not providing a statement of reasons for
sentencing Delgado to such a long sentence. As such, the Ninth Circuit held it was necessary for the district court to
resentence Delgado, and if necessary, provide a statement of reasons for the sentence. CONVICTION AFFIRMED;
SENTENCE VACATED AND REMANDED FOR RESENTENCING. [Summarized by Justin Reiner]
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Ellis v. U.S.
No. 01-70724 (02/04/04)
Before Circuit Judges Schroeder, Chief Judge, Pregerson, Reinhardt,
Kozinski, Trott, Kleinfeld, Thomas, Wardlaw, Fisher, Gould, and Berzon
http://caselaw.lp.findlaw.com/data2/circs/9th/0170724p.pdf
CRIMINAL LAW / FEDERAL RULE OF CRIMINAL PROCEDURE 11 / MANDAMUS
Opinion (Wardlaw): Ellis was indicted on charges of first-degree murder for the shooting and killing of a taxi cab
driver. Ellis pleaded guilty to second-degree murder instead of first degree murder as a part of a plea agreement he
accepted. The plea agreement provided that either party could withdraw the plea if the court imposed a sentence of
imprisonment other than 132 months. The district court accepted the plea of guilty, but later rejected the plea
agreement and required him to plead to higher charges. Ellis moved to compel the court to allow him to persist in
his plea, but the district court refused to hear argument on his motion. Ellis filed for writ of mandamus. The district
court held that Ellis had pleaded to second-degree murder and that the court vacated the guilty plea upon rejecting
the plea agreement. The Ninth Circuit reasoned that when the district court rejected Ellis's plea agreement after
previously accepting it, the district court could not vacate the plea and require Ellis to plead to higher charges.
Pursuant to Federal Rule of Criminal Procedure 11, the district court's rejection of the plea allowed Ellis, not the
court, to decide whether to withdraw the plea. Therefore, the Ninth Circuit held that the district court erred in
refusing to give Ellis an opportunity to withdraw his plea. GRANTED AND REMANDED. [Summarized by
Sabrina L. Axt]
U.S. v. Campos-Fuerte
No. 03-10055 (02/04/04)
Before Circuit Judges Hug, B. Fletcher, and Tashima
http://caselaw.lp.findlaw.com/data2/circs/9th/0310055p.pdf
DEPORTATION VIOLATION / AGGRAVATED FELONY / SENTENCING DEPARTURES
Opinion (Hug): Police arrested Campos-Fuerte, previously convicted for "flight from a police officer in willful and
wanton disregard for safety" and subsequently deported upon his release from prison, for driving under the
influence. Campos-Fuerte pleaded guilty to violating a federal deportation statue and the district court adjusted his
sentence upward after finding that his previous crime was a crime of violence constituting an aggravated felony.
Campos-Fuerte appealed the classification of his previous crime and alleged that his sentence should have been
adjusted downward based on the overstatement of his criminal history. The Ninth Circuit concluded that "flight
from a police officer in willful and wanton disregard for safety" is an aggravated felony. The prior conviction
qualified as a felony under state law and Campos-Fuerte's imprisonment fit the one year minimum requirement.
Additionally, the statutory language of "willful and wanton" equates to recklessness and the conduct prohibited by
the statute fits the "crime of violence" definition. Therefore, the Ninth Circuit affirmed the upward adjustment. The
Ninth Circuit further determined that because the district court heard Campos-Fuerte's two objections to the
classification of his criminal history, there was not a showing that the district court believed that it lacked discretion
to apply a downward departure. Thus, their discretion is not subject to review. AFFIRMED. [Summarized by
Heather Vogelsong]
U.S. v. Johnson
No. 03-30101 (02/05/04)
Before Circuit Judges Brunetti, T. Nelson, and Graber
http://caselaw.lp.findlaw.com/data2/circs/9th/0230185p.pdf
DRUG POSSESSION / INTENT TO DISTRIBUTE / SENTENCING
Opinion (T. Nelson): A police officer found drugs in a package addressed to Johnson and marked "Happy
Birthday." Detectives removed 80.9 grams of methamphetamine, repackaged 2.3 grams with a secondary substance,
and delivered the box to Johnson. Eleven minutes later, pursuant to a valid search warrant, agents found the drugs
and various paraphernalia among Jonhson's possessions. A jury convicted Johnson of possession with intent to
distribute and the district court denied his motion for judgment of acquittal. The district court sentenced Johnson
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based on 83.2 grams of methamphetamine. Johnson appealed. First, the Ninth Circuit concluded that the record
supported the district court's denial of Johnson's motion. Johnson knowingly possessed the methamphetamine
because he is an addict who recognizes the drug and he opened and began separating the substance during the eleven
minutes prior to the search. The jury could rationally find that Johnson had intent to distribute based on the
collective drug paraphernalia found at his home. Furthermore, intent to distribute took place at the time he accepted
the package until he realized that it only contained 2.3 grams. Second, the Ninth Circuit determined that 83.2 grams
could be used to calculate Johnson's base offense. Johnson's relevant conduct for sentencing purposes happened
independent of the amount of drugs delivered to him. He ordered the drugs, inquired into the whereabouts of the
package, and accepted the delivered package. AFFIRMED. [Summarized by Heather Vogelsong]
Powell v. Lambert
No. 01-35809 (02/10/04)
Before Circuit Judges Reinhardt, W. Fletcher, and Gould
http://caselaw.lp.findlaw.com/data2/circs/9th/0135809p.pdf
HABEAS CORPUS / EXHAUSTED CLAIMS
Opinion (W. Fletcher): Powell, a Washington prisoner, was convicted in 1982 of first-degree murder and was
sentenced to life in prison without parole. Powell filed a habeas petition in federal district court in 2000, but the
court denied the petition as he failed to exhaust his claims in state court. Powell appealed. On appeal, Powell
argued that the state procedural bar was not "clear, consistently applied, and well-established at the time of his
purported default." The Ninth Circuit held that state courts must follow a firmly established and regularly followed
state practice in order for an asserted procedural bar to be adequate. The Ninth Circuit further held that since
Washington courts did not have a "clear, consistently applied, and well-established rule at the time of Powell's
purported default" and since Washington's state court bar was not adequate at the time of the default, all of Powell's
claims had been exhausted in state court. REVERSED AND REMANDED. [Summarized by Andrew Van Ness]
Barron v. Ashcroft
No. 02-70887 (02/10/04)
Before Circuit Judges Hall, O'Scannlain, and Brown, District Judge
http://caselaw.lp.findlaw.com/data2/circs/9th/0270887p.pdf
IMMIGRATION / DUE PROCESS
Opinion (O'Scannlain): Barron and his wife, Mexican citizens, entered the U.S. illegally in 1988. In 1997, the
Immigration and Naturalization Service ("INS") began removal proceedings against them. Barron admitted that
they were removable, but asked for cancellation of removal by either cancellation or voluntary departure. The
Immigration Judge denied Barron's application for dismissal. Barron then appealed to the Board of Immigration
Appeals, and was denied his cancellation application. Barron appealed to the Ninth Circuit and argued that his Fifth
Amendment right to due process was denied because he did not have counsel at his removal hearing. The Ninth
Circuit denied Barron's appeal because he had not raised the issue in prior proceedings. DISMISSED. [Summarized
by Andrew Van Ness]
OREGON COURT OF APPEALS
State v. Gill
Case No.: A115064-67
http://www.publications.ojd.state.or.us/A115064.htm
AREA OF LAW: CONSTITUTIONAL LAW
HOLDING: (Opinion by Edmonds, J.): Consent to a delay of trial under ORS 135.747 does not require express
consent and a defendant's failure to appear and his subsequent inaction can constitute consent to the delay. The
court will consider three factors in determining the constitutionality of the delay: (1) the length of the delay, (2) the
reason for the delay, and (3) the resulting prejudice to the accused from a lengthy pretrial incarceration, the
suspicion from public accusation of a crime, and the hampering of the ability to defend at trial.
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Gill appeals from various convictions stemming from a DUII arrest in 1991. Gill failed to appear for court on the
charge. The judge issued a bench warrant; Police arrested Gill. He again failed to appear and the court issued
another warrant. This pattern continued several more times. Gill moved from Oregon 1992. He returned to Oregon
in 1995, and encountered the police on several occasions, but Police never arrested on outstanding warrants until
2001. Gill argued that the court erred in denying motions to dismiss due to guarantees of a trial in a reasonable time,
provided for in statutes and the Oregon and Federal Constitution. The court noted it will not dismiss if the defendant
consented or caused the delay, and Gill impliedly consented to delay by demonstrating that he did not want to have a
trial in the regular course of the justice system. The court determined that Gill's actions caused the delay, but the
length was not unreasonable considering that Gill caused the delay. The court found the delay caused no prejudice
from lengthy pretrial incarceration, suspicion from accusations, or the state hampering Gill's defense. Affirmed.
[Summarized by Robert Ickes.]
ARTICLE OF THE WEEK:
Star witness in Martha Stewart case
How should the jury evaluate insider trading testimony in the absence of such charges?
By Jonna M. Spilbor
(FindLaw) -- Most newly anointed brokers begin their Wall Street careers at the bottom of the totem pole -often doing little more than catering to the administrative needs of their superiors. They'll fetch the coffee,
take a message and occasionally, make a trade.
When Douglas Faneuil began working as a broker's assistant at Merrill Lynch, he was so wet behind the ears, you
could have wrung him out. Faneuil even referred to himself as "Baby".
But now "Baby" says he grew up fast -- too fast. Why? Because the broker he assisted was Peter Bacanovic. And
one of Bacanovic's clients was Martha Stewart.
Still in his twenties, and no longer working on Wall Street, "Baby" is the key government witness in the case against
domestic-diva-turned-defendant Stewart and her broker, Bacanovic. Indeed, in the end, the entire case is likely to
boil down to a credibility contest: The word of the business-savvy Stewart and Bacanovic against the word of the
fresh-faced Faneuil.
After all, the rest of the evidence against Stewart and Bacanovic is circumstantial. And though Judge Miriam
Goldman Cedarbaum has remarked that this circumstantial evidence is "strong," Faneuil's testimony, as direct
evidence, is bound to be stronger. But only if the jury believes it.
Yet the jury may find Faneuil too dramatic to be credible. Last week, Faneuil's testimony often sounded as if it were
taken straight from the movie "Wall Street." Faneuil seemed to cast himself in the role of Bud Fox -- the young,
heroic stockbroker who risked his own liberty to expose the ruthless wrongdoings of his superiors.
Of course, "Wall Street" was fiction. But so too may be the testimony of the government's star witness -- and it is up
to jurors to decide. Evidence of Faneuil's admitted drug history is likely to count against him in their credibility
determination.
Faneuil has begun a second week of testimony. As he does so, jurors must be wondering: How firmly must I believe
him, in order to convict?
In this column, I will argue that the answer to this question is closely related to an odd decision the Stewart
prosecutors made: The decision, in what is essentially an insider trading case, not to charge the defendant with
insider trading.
Strange indictment fails to charge insider trading
The indictment against Stewart was strange, to say the least. It was a case of a dog that didn't bark -- and the "dog"
here was the insider trading charge.
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The government alleged that Stewart acted on non-public information when, in December 2001, she sold her nearly
four thousand shares of ImClone stock just one day before bad news caused the stock price to tank.
Specifically, the government believes -- and Faneuil has testified -- that Stewart learned that her friend, and ImClone
head, Sam Waksal and his daughter were dumping their shares of ImClone, and therefore decided to dump her own.
Who told her? According to Faneuil, he did, but he was reluctantly following Bacanovic's instructions.
Obviously, the gist of this claim is insider trading. The claim is that Stewart, due to her friendship with Waksal, and
her broker's knowledge of his doings, managed to escape taking the hit that other ImClone stockholders took.
But the government did not charge Stewart with insider trading. Instead, it has charged her with conspiracy,
obstruction of justice, and securities fraud.
Specifically, the government believes that Stewart lied to the government when it investigated her stock trade -claiming that the trade was made pursuant to a prior "sell" order, which the government says never existed. It also
believes that Stewart similarly lied to stockholders, and the public, in an attempt to keep the price of her own
company's stock high by convincing them she was innocent of any wrongdoing and would eventually be exonerated.
Although these allegations led to the current charges (and by the way, even Judge Cedarbaum has openly
acknowledged the fraud charge as "novel"), insider trading is unmistakably the main artery of the case, with all of
the charged crimes flowing from it. But, again, it isn't charged as a crime.
Why is Faneuil's insider trading testimony admissible?
Since insider trading isn't charged, readers may wonder: Why is Faneuil allowed to testify about it? Isn't Stewart on
trial for the crimes charged in the indictment -- and only those crimes? So the government shouldn't be telling the
jury about other bad things it thinks she did, right?
In brief, the answer is yes -- but with exceptions. In federal trials, the admissibility of uncharged acts (also called
prior bad acts) is governed by Federal Rule of Evidence 404(b).
Rule 404(b) excludes evidence of other crimes, wrongs, or acts if it is offered to demonstrate a defendant's
propensity to commit the charged act. So, for example, if Stewart were charged, instead, with robbing a liquor store,
then the government couldn't offer evidence of its belief that she also committed insider trading.
But Rule 404(b) also say that prior bad act evidence may be admissible if it is offered for other purposes. (Also,
another test must also be satisfied: The trial judge must find that the jury could reasonably conclude that the acts
occurred, and that the defendant was the actor.)
What are those other purposes for which prior bad act evidence can be admitted? According to Rule 404(b), they
include proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.
In this case, for instance, the government may be offering Faneuil's testimony that Stewart traded on inside
information to show why it believes she later lied about those very trades. The government may contend, that is, that
the trades gave her a motive to lie: If she hadn't done a bad thing, then she wouldn't have had to cover it up later. To
show the cover-up itself -- the theory goes -- one must first show what the defendant needed to cover up.
Why the 'reasonable doubt' requirement doesn't apply to Faneuil
So it seems that the government is putting Faneuil on to show motive. But motive isn't an element of any crime
(including those charged here) -- so it need not be proven beyond a reasonable doubt.
To convict Stewart, the jury must be convinced beyond a reasonable doubt that she made false statements and
obstructed justice. But it need not be convinced beyond a reasonable doubt of her motive for doing so. And that
motive, as noted above, is the subject of Faneuil's testimony.
All this leads to a strange anomaly: At least in theory, the jury need not be convinced, beyond a reasonable doubt, of
what Faneuil says, in order to base a conviction upon it. So some witnesses will have to be believed beyond a
reasonable doubt, but Faneuil isn't one of them.
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Which witnesses will have to be believed beyond a reasonable doubt? To begin, suppose the government
investigators who spoke to Stewart testify that she made false statements to them. Obviously, the fact that a
statement was made, and the fact that it was false, are elements of the false statements charge. And again, all
elements must be proven beyond a reasonable doubt. So if the jury doesn't believe the investigators beyond a
reasonable doubt, it cannot convict Stewart of making false statements. And of course, that's as it should be.
Not so with Faneuil, however. The jury can disbelieve him, or have questions about his testimony, and still convict
Stewart. For instance, it might believe that Stewart actually did nothing wrong, but that she was so paranoid that she
might be wrongfully convicted anyway, that she starting devising a series of lies to defend herself. After all, it
wouldn't be the first time that a cover-up became far worse than what it was covering up in the first place.
Not charging Stewart with insider trading is unfair
If all this strikes you as unfair to Stewart, I couldn't agree with you more. The government should not be allowed to
divest a defendant of her due process right to proof beyond a reasonable doubt in a criminal proceeding by sleight of
hand charging decisions. And that is precisely what's happened here.
Jurors should have to believe Faneuil beyond a reasonable doubt in order to convict Stewart. Technically, because of
the government's clever -- and partial -- indictment, that's not the law. But let us hope that we can count on the
common sense of jurors to ensure fair treatment of the defendant.
If jurors cannot believe "Baby" beyond a reasonable doubt, then it should not convict the grownups in the room. Star
witnesses should offer star performances -- if they are not credible, then cases ought to fall apart. If Faneuil fails to
convince, the case should be over.
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COMICS:
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