Hawaii Criminal Defender

ICA affirms conviction for burglary and theft

2011-07-28T18:08:00.001-05:00

On July 25, 2011, the ICA issued its opinion in State v. Dominic Brooks, No. 30219 (7/25/11, Unpublished, ICA, (By: Foley, Presiding J., Fujise and Reifurth, JJ.) Appeal from the Circuit Court of the Third Circuit, Hon. Elizabeth A. Strance, presiding). Julie Kai Barreto, Esq. for Defendant-Appellant and Linda L. Walton, Deputy Prosecuting Attorney for Plaintiff-Appellee County of Hawai’i.

Defendant was found guilty of burglary and theft. Defendant raised many issues on appeal, some of which include (and were resolved) as follows:

-The circuit court did not abuse its discretion when it allowed evidence of Brooks's threats made towards Stuck because it "is well-established that evidence of threats or intimidation is admissible under Rule 404(b) to show a defendant's consciousness of guilt.”

-Brooks contends he was "prevented from attacking prosecuting witness Joshua Stuck's bias, interest, and motive arising from his status as a felony probationer, on grounds that HRE Rule 404(b) required prior notice of such an attack." Brooks also contends the circuit court abused its discretion when it denied his requests to ask Stuck about possible drug use at the time of the robbery or at the time Stuck made his statements. The circuit court did not prohibit Brooks from asking Stuck about Stuck's felony probation due to a lack of prior notice under HRE Rule 404(b); the circuit court denied Brooks's requests because "the balance of [Brooks's] proposed questions are –- the prejudice outweighs the probative value."

-The circuit court found "in its discretion that the balance of trying to establish some sort of bias under 609.1 is met by the limitations expressed." . . . The circuit court did not abuse its discretion when it limited Brooks's cross-examination of Stuck to any possible plea agreement with the State.

-Brooks did not present any evidence that (a) Stuck was using drugs near or at the time of the incident, (b) Stuck was using drugs near or at the time he made his statements, or (c) such alleged drug use affected his perception or recollection at the time of the incident or at the time he made his statements. Therefore, the circuit court did not abuse its discretion when it denied Brooks's request to question Stuck about possible drug use.

-Defense Counsel did not lay a proper foundation because she did not establish that [witness] was familiar with Patricia's reputation for truthfulness. Therefore, the circuit court did not err when it sustained the Prosecutor's objection based on lack of foundation.

-Brooks contends the circuit court, under HRE Rule 613(b), should have allowed him to introduce Patricia's asset and debt statement from her divorce. Rule 613(b) provides in relevant part: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless, on direct or cross examination, (1) the circumstances of the statement have been brought to the attention of the witness, and (2) the witness has been asked whether the witness made the statement. . . . The circuit court did not abuse its discretion when, under HRE 608(b), it refused to admit the statement into evidence. Defense Counsel did not try to admit the statement into evidence under HRE 613(b). Furthermore, Brooks did offer to redact the statement, and most of it was irrelevant.

Affirmed.

ICA affirms in part and reverses in part multiple counts of convictions

2011-07-28T17:59:00.001-05:00

On July 19, 2011, the ICA issued its opinion in State v. Palmer, No. 30418 (7/19/11, Unpublished, ICA- Summary Disposition Order, by: Nakamura, Chief Judge, Leonard and Ginoza, JJ.) This was an appeal from the Circuit Court of the Second Circuit, Honorable Joseph E. Cardoza presiding. On the briefs were Deputy Public Defender Phyllis Hironaka, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for Deputy Prosecuting Attorney for Plaintiff-Appellee.

After a jury trial, Palmer was found guilty of the following offenses: Unlawful Imprisonment in the First Degree (Imprisonment 1) (Count 1); Terroristic Threatening in the First Degree (TT1) (Count 2); Abuse of Family or Household Member (Household Abuse) (Count 3); and Assault in the Third Degree (Assault 3) (the lesser included offense of Count 4).

On appeal, the ICA held:

Evidence was presented that Palmer "restrained," or "restrict[ed]" Complainant's "movement in such a manner as to interfere substantially with" her "liberty . . . [b]y means of force . . . [or] threat," as required under HRS § 707-700, by touching the knife to the side of Complainant's neck, at her throat. There was substantial evidence that the circumstances "expose[d]" Complainant "to the risk of serious bodily injury," as set forth in HRS § 707-721, including that Palmer's holding the knife against the side of Complainant's neck created a substantial risk of death, § 707-700, especially considering the testimony that he contemporaneously threatened to kill her, and that he had been drinking and flinging a knife, which he then stuck into the kitchen cabinet.

Evidence was also adduced that Palmer would not allow Complainant to leave the small master bathroom -- where he pushed her about a dozen times, including at least three times into the wall and once into the bathtub, hurting her side, and whacked her head against a door, causing her to lose one of her porcelain crowns.

In addition, the State presented evidence that Palmer had locked and taken the only key to the deadbolt on the front door, refused entry to the police, and called Complainant his "hostage." This was sufficient to support a conviction for unlawful imprisonment in the first degree.

The ICA also concluded that the Circuit Court erred by failing to instruct the jury that if it found Palmer guilty of both Household Abuse and Assault 2 or Assault 3, the jury must determine whether the State had proven beyond a reasonable doubt that the offenses did not merge. . . . The State conceded that the Circuit Court erred in failing to give a merger instruction and has indicated its election that Palmer's Assault 3 conviction be dismissed.

Held: The ICA vacated the Circuit Court's judgment, in part, and remand this case to the Circuit Court for the dismissal of Count 4, with prejudice, and for the entry of an amended judgment and sentence consistent with this summary disposition order. In all other respects, we affirm.

ICA affirms violation of restraining order conviction

2011-07-28T17:44:00.000-05:00

On July 19, 2011, the ICA issued its opinion in State v. Moore, No. 3000 (7/19/11, Unpublished, ICA, Summary Disposition Order, by: Foley, Presiding Judge, Leonard and Ginoza, JJ.). This was an appeal from the Family Court of the First Circuit, Hon. Patrick Border, presiding. On the briefs were Linda C.R. Jameson, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Stephen Tsushima, Esq. for Plaintiff-Appellant.

Defendant was convicted of violating a temporary restraining order. He raised numerous issues, including:

A. The defense did not object when the complainant made references to another "incident" and to another "case" while testifying at trial. No objection made at trial, so reviewed for plain error.

The complainant's first reference to another incident occurred during direct examination by the State. In explaining how she reported the incident with Moore at the bus stop, the complainant testified she first tried to call 911 on the day of the incident, then contacted the prosecutor's office the following Monday, and finally went to the police station located in Honolulu. The prosecuting did solicit any more information about this incident and the family court did not commit plain error by not striking the reference to this other incident and not issuing a cautionary instruction.

The complainant's second reference, this time to another "case," was made during cross-examination by defense counsel. The line of questioning dealt with whether the complainant, who is not a U.S. citizen, was seeking permanent citizenship under the Violence Against Women Act (VAWA). The defense's theory of the case was that the complainant was falsely accusing Moore because she wanted to gain citizenship pursuant to the VAWA, and thus her testimony about another case with her immigration attorney is relevant to this theory. The complainant's reference to the other case was brief and did not contain any specifics. No plain error in not striking the reference to a second case and not issuing cautionary instructions.

Moore also asserts that it was error for the family court to admit into evidence Defense Exhibit D, an email that the complainant sent to people she knew requesting supporting letters for her immigration application for a U-visa under the VAWA. Because this exhibit was central to the defense's theory of the case, the family court did not commit plain error by admitting it.

B. Moore argues that he was denied effective assistance of counsel because his trial counsel failed to object to the complainant's testimony regarding the "other incident" and the "other case," and further, his trial counsel admitted Defense Exhibit D into evidence.

In the instant case, Moore fails to meet his burden in establishing how the complainant's two fleeting references to a separate incident and another case led to either the withdrawal or substantial impairment of any meritorious defense. Rather, evidence that the complainant reported another incident to the police or that she had another case with her immigration attorney were both consistent with the Defendant’s theory of the case.

Additionally, trial counsel's decision to enter Defense into evidence, including the third page, was part of strategy in presenting the defense's theory that the Exhibit D the trial complainant was making the allegations against Moore to obtain a visa under the VAWA. Here, defense counsel sought to challenge the complainant's motive in accusing Moore and utilized complainant's email to demonstrate her alleged motive and did not arise to ineffective assistance of counsel.

C. Finally, Moore takes issue with the following remarks of the deputy prosecutor: "We heard a lotta testimony from [the complainant] yesterday and then today. I think bottom line [she] has absolutely no motive to lie. She has no motive . . . to make up a story that there has been a violation of a temporary restraining order." (Emphasis added). Here, the deputy prosecutor's comment was addressing the defense's theory of the case (i.e., that the complainant made up the incident at the bus stop to obtain citizenship under the VAWA). “Although prosecutors should refrain from stating personal opinions during closing arguments, the single use of the phrase "I think" in this case does not rise to the level of misconduct.”

Affirmed.

Department of Justice urges SCOTUS to block execution of Mexican National

2011-07-02T14:30:00.002-05:00

ICA rejects appeal alleging error for failure to provide special jury instruction for eyewitness identification

2011-07-02T13:25:00.002-05:00

On June 27, 2011, the Hawai’i Intermediate Court of Appeals issued its decision in State v. Cabagbag, No. 30682 (Summary Disposition Order- unpublished, panel: Foley, Presiding Judge, Reifurth and Ginoza, JJ.) This is an appeal from the Circuit Court of the First Circuit, Hon. Karen S. S. Ahn, presiding. Appearing on the briefs were Deputy Public Defender James S. Tabe, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Stephen K. Tsushima, Esq. for Plaintiff-Appellee.

Defendant was convicted by a jury of Unauthorized Control of a Propelled Vehicle. On appeal, Defendant contended that the Circuit Court committed plain error by failing to provide a special jury instruction regarding eyewitness identification and that a "cautionary jury instruction" regarding eyewitness identification "should be required" in any case in which eyewitness identification is a critical issue.

In rejecting Defendant’s arguments, the ICA held: “The opening statement by defense counsel, the cross-examination of Officer Tomimbang, defense counsel's closing argument, and the general instructions given by the Circuit Court adequately directed the attention of the jury to the identification evidence.”

Affirmed.

ICA dismisses appeal for failure to file opening brief

2011-07-02T13:10:00.000-05:00

On June 27, 2011, the Hawai’i Intermediate Court of Appeals issued an order dismissing the appeal in Cooper v. State, NO. 30375. In this order, the ICA noted that after filing his appeal, Defendant had failed to file an opening brief, despite being given an extension to do so. Defendant had subsequently been warned that his failure to file an opening brief could result in dismissal, but Defendant had failed to file said brief or request relief from default. Appeal dismissed.

ICA affirms Circuit Court ruling that double jeopardy did not prohbit criminal prosecution in Kauai reservoir breach manslaughter case

2011-07-02T13:01:00.004-05:00

On June 23, 2011, the Hawai’i Intermediate Court of Appeals entered its opinion in State v. Pflueger, Nos. 30369 & 30419 (Memorandum Opinion-unpublished, panel: Foley, Presiding J., Fujise and Reifurth, JJ.). This was an appeal from the Circuit Court of the Fifth Circuit, the Hon. Randal G.B. Valenciano presiding. The parties were represented by William C. McCorriston (David J. Minkin and Becky T. Chestnut with him on the briefs) (McCorriston Miller Mukai MacKinnon LLP) for Defendant-Appellant and Mark J. Bennett, Special Deputy Attorney General (Girard D. Lau and Kimberly Tsumoto Guidry, Deputy Attorneys, with him on the briefs) for Plaintiff-Appellee.

Defendant was an owner of property on which a water reservoir was located. The primary issue in this case was whether Defendant’s prior conviction for violating a grading ordinance concerning this reservoir in 2003 prohibited the State from prosecuting Defendant for Manslaughter in 2008 for deaths resulting from reservoir’s breach.

In holding that double jeopardy did not apply, the ICA made the following points:

• “The alleged illegal act of covering the spillway in 1997-98 and not subsequently uncovering it is not the same act as illegally grading another section of the property sometime between February and December 2002. The act of modifying the water systems is also not the same act of illegal grading that constituted the 2003 conviction. Hence, the acts the State intends to use to prove the conduct element of the Manslaughter charges are separate from the act used to prove the conduct element of the 2003 conviction, and double jeopardy is not invoked.”

• Under the "same conduct" test, prosecution of the 2008 Manslaughter charge is barred by double jeopardy if the acts for which Defendant was prosecuted in 2003 are the same acts that will be used to prove the 2008. Here, the ICA held that “there is no danger that the State, in 2003, was using that illegal grading prosecution to pinpoint inadequacies in preparation for its 2008 Manslaughter case because in 2003, the dam had not been breached and there had been no deaths.”

• The ICA also rejected the Defendant’s contention that there was insufficient evidence for the grand jury to return a true bill. The ICA noted that evidence was presented to the grand jury that could show that the Defendant “acted with a conscious disregard of a substantial and unjustifiable risk that death could result.” Thus, the circuit court did not abuse its discretion when it found "sufficient evidence to support the grand jury's finding of probable cause for the offense of Manslaughter."

• The ICA also rejected Defendant’s contention that the Manslaughter statute was impermissibly vague. “In the instant case, the Manslaughter statute puts one on notice that it is a violation of the statute to commit any conduct in conscious disregard of the substantial risk of another person's death. The statute is not void for vagueness.”

Affirmed.

ICA affirms Wal-Mart harassment conviction

2011-07-01T13:58:00.002-05:00

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Martins, CAAP-10-0000016 (Summary Disposition Order- unpublished, panel: Fujise, Presiding Judge, Leonard and Ginoza, JJ.). Appeal from the District Court of the Fifth Circuit, Hon. Honorable Laurel Loo presiding. On the briefs were Charles A. Foster, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Tracy Murakami, Esq.

The complaining witness (CW) testified that as he was walking from Wal-Mart using his cane, Defendant, driving a moped, stopped and waited for him. The two men argued, and the CW testified that Defendant grabbed CW’s cane and threw it away.

“In closing argument, the . . . State argued that McCoy had the cane in his hand when it was ripped out, such that it was an offensive touching meant to harass, annoy or alarm McCoy. The defense argued that ‘the State hasn't shown that [Martins] intended to harass, annoy and alarm by taking the cane." Rather, the defense asserted, there was a mutual confrontation, McCoy was waving his cane, and Martins took the cane and threw it in an attempt at self-protection.’” The Judge found the Defendant guilty of harassment but not guilty of assault.

Defendant argued for the first time of appeal that the complaint was insufficient. Defendant did not suggest that the wording of the Complaint prejudiced him, but contended that the Complaint "cannot within reason be construed to charge a crime.” Under the circumstances of this case, the ICA held that Complaint could be reasonably construed to charge the crime of Harassment and Defendant was adequately informed of the charge against him. Affirmed.

ICA affirms speeding conviction

2011-06-29T21:11:00.002-05:00

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Lalonde, No. 30482 (Summary Disposition Order, panel: Nakamura, C.J., Fujise and Reifurth, J.J.) This is an appeal from the District Court of the First Circuit, ‘Ewa Division, the Hon. David W. Lo, presiding. Briefing attorneys were Deputy Public Defender Kainani C. Collins, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Anne C. Clarkin, Esq. for Plaintiff-Appellee.

Defendant was convicted of excessive speeding. Defendant first argued that the trial court erred in denying his discovery requests for numerous items and information concerning laser gun calibration. The trial court ordered that Defendant was to be “able to review and make one copy of certain pages of the ‘Marksman (trainee) manual’ and the ‘LTI Ultralyte operator (user) manual,’” but denied the other requests. The ICA rejected Defendant’s claim of error, noting that Defendant was able to cross-examine State’s witness using the ordered disclosures and Defendant was unable to show the information sought to be obtained in the denied discovery requests was "material" to the accuracy of the laser unit's reading.

Defendant next attacked the admission of the laser readings and the sufficiency of the evidence. The ICA held: “Based on the testimony regarding Officer Frank's training and experience and of his operation of the laser unit, we conclude the district court did not err in admitting the laser unit's reading and in finding [Defendant] guilty of excessive speeding.” Affirmed.

ICA issues published opinion clarifying mens rea requirements in OVUII complaints

2011-06-29T14:40:00.003-05:00

On June 22, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Nesmith, NO. CAAP-10-0000072 (Published opinion written by Nakamura, C.J., panel: Nakamura, Reifurth, J. with Foley, J. concurring separately). This is an appeal from the District Court of the First Circuit, Hon. Paula Devens presiding. On the brief were Timothy I. McMaster, Esq. for Defendant-Appellant and Delanie D. Prescott-Tate, Esq. for Plaintiff-Appellee.

Defendant was charged with operating a vehicle under the influence of an intoxicant, a violation of HRS § 291E-61. Appellant argued that the complaint charging the offense was insufficient because it failed to allege a specific mens rea (mental element of the crime), namely that he committed the offense “intentionally, knowingly or recklessly.”

A person can commit a violation of HRS § 291E-61 in four ways. The complaint in this case alleged Defendant violated the law two of these ways- by being “under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty” and/or driving “with .08 or more grams of alcohol per two hundred ten liters of breath.”

The ICA held that the statute defining the charged OVUII offense, HRS § 294E-61 (Supp. 2009), does not specify a required state of mind. In regard to the “.08” charge, the ICA held that an HRS § 291E-61(a)(3) violation is an absolute liability offense that does not require proof of mens rea. Because violation of HRS § 291E-61(a)(3) is an absolute liability offense, the State was not required to allege any mental state in charging Defendant with OVUII in violation of HRS § 291E-61(a)(3).

In respect to violation of an “impairment” charge, mens rea is not an essential element of that violation and can be inferred from the allegations in the complaint. The referenced allegations in the complaint and the nature of the charged offense are sufficient to imply and connote that Defendant committed the charged OVUII offense intentionally, knowingly, or recklessly. Accordingly, the complaint was sufficient to charge Defendant with OVUII in violation of HRS § 291E-61(a)(1).

Judgment affirmed.

Justice Foley’s concurrence was simply: “I concur in the result. The charge was sufficient under State v. Wheeler, 121 Hawai'i 383, 219 p.3D 1170 (2009).”

Note- On June 14, 2011, the ICA came to similar conclusion in State v. Pai, No. 30516 (ICA- Unpublished Summary Disposition Order. Panel: Foley, Reifurth and Ginoza).

Department of Justice changes eligibility for pretrial diversion to include defendants having a history of substance abuse

2011-06-29T13:13:00.000-05:00

From Richard Anderson, Federal Defender of the Northern District of Texas:

The Eligibility Criteria for the DOJ Pretrial Diversion Program was updated
in April 2011. The disqualifier for having a history of substance abuse
(alcohol or drugs) has been removed.

The four disqualifiers are now --

The U.S. Attorney, in his/her discretion, may divert any individual against
whom a prosecutable case exists and who is not:

1. Accused of an offense which, under existing Department guidelines,
should be diverted to the State for prosecution;

2. A person with two or more prior felony convictions;

3. A public official or former public official accused of an offense
arising out of an alleged violation of a public trust; or

4. Accused of an offense related to national security or foreign
affairs.

See
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/22mcrm.htm#9-22.100/s/Jeff

New US Supreme Court case gives Defendants the right to confront blood-alcohol analysts that certify reports

2011-06-29T07:22:00.001-05:00

On June 23, 2011, the Supreme Court of the United States issued its decision in Bullcoming v. New Mexico, No. 09-10876. In Bullcoming, the Supreme Court held that a defendant has the right to confront the analyst who certified a blood-alcohol analysis report, and that such a report was testimonial within the meaning of the Confrontation Clause.

Bullcoming was arrested for aggravated driving under the influence of intoxicating liquor. The principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample.

While Bullcoming's appeal was pending before the New Mexico Supreme Court, the SCOTUS decided Melendez–Diaz. In that case, the Massachusetts courts had admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. Those affidavits, the Court held, were ‘testimonial,’ rendering the affiants ‘witnesses' subject to the defendant's right of confrontation under the Sixth Amendment.

Despite Melendez-Diaz, the New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst's in-court testimony. Instead, New Mexico's high court held, live testimony of another analyst satisfied the constitutional requirements.

The SCOTUS, by a 5-4 vote, reversed. In writing for the majority, Justice Ginsburg included the following points:

• The case of Crawford v. Washington held that fidelity to the Confrontation Clause permitted admission of “[t]estimonial statements of witnesses absent from trial ... only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Melendez–Diaz, relying on Crawford's rationale, refused to create a “forensic evidence” exception to this rule.

• The SCOTUS settled in Crawford that the “obvious reliability” of a testimonial statement does not dispense with the Confrontation Clause. “Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’”

• In short, when the State elected to introduce [the analyst’s] certification, [the analyst] became a witness Bullcoming had the right to confront.

ICA affirms suppression of evidence in intoxicated driving case

2011-06-29T06:47:00.000-05:00

On June 21, 2011, the Hawai’i Intermediate Court of Appeals entered its opinion in State v. Sereno, No. 30468 (Summary Disposition Order- unpublished, panel: Fujise, Presiding J., Leonard and Reifurth, JJ.). This case is an appeal from the District Court of the Second Circuit, Wailuku division, Hon. Kelsey T. Kawano presiding. On the briefs were Deputy Prosecuting Attorney Kristen L. Coccaro, Esq. for Plaintiff-Appellant and Matthew Nardi, Esq. for Defendant-Appellee.

Defendant was operating an automobile that was struck by another vehicle and, as a result, Defendant’s vehicle collided with a house. Defendant was arrested for operating a vehicle under the influence of an intoxicant. Prior to trial, Defendant filed a motion to suppress all evidence obtained as a result of Defendant’s arrest because of lack of probable cause to make the arrest. The trial court granted this motion.

On appeal, the State challenged many of the findings of fact and conclusions of law entered by the trial court in making its decision. Applying the “clear error” test to factual determinations made by the court in deciding pretrial motions and the “right/wrong” test to determinations of law, the ICA did find various errors. These errors, however, did not rise to a level of requiring reversal.

The ICA noted that as to the ultimate conclusion of whether probable cause existed for the arrest, the factors that were reasonable for the officer to consider in his determination of probable cause were Defendant's admission of drinking, the odor of an alcoholic beverage, red, watery eyes, and flushed facial features. Based on these factors, the ICA agreed that insufficient probable cause existed for the arrest. Affirmed.

ICA affirms assault conviction but remands for resentencing

2011-06-29T01:44:00.003-05:00

On June 21, 2011, the Hawai’i Intermediate Court of Appeals issued its opinion in State v. Kang, No. 30656 (Summary Disposition Order- unpublished. Panel: Nakamura, CJ., Fujise and Ginoza, JJ.). This was an appeal from the District Court of the First Circuit, the Hon. Faye M. Koyanagi, presiding. On the briefs were Chad D. Enoki, Esq. for Appellant-Defendant and Stephen K. Tsushima, Esq. for Appellee-State.

Defendant was found guilty of Assault in the 3rd Degree, a petty misdemeanor. Defendant first alleged on appeal that the State had failed to disprove his claim of self-defense. The ICA disagreed, noting the testimony of the complaining witness that Defendant had head butted and otherwise assaulted him on the night in question. The prosecution disproves a claim of self-defense beyond a reasonable doubt when, essentially, the trier of fact believes its case and disbelieves the defense. Here, the district court believed the State's case and disbelieved Defendant's assertion of self-defense.

Defendant next argued that the trial court erred in admitting evidence of his arrest for harassment that occurred a month before the alleged assault. The ICA noted that this evidence was admitted for the limited purpose of rebutting Defendant’s argument that his injuries were a result of the confrontation with the complaining witness on the night in question. The ICA held that when other-crimes evidence is introduced for a limited purpose, it is presumed that the trial judge considered it only for that purpose, and overruled this argument.

Defendant finally argued that the district court erred by not addressing him prior to sentencing and providing him with an opportunity to make a statement or present information in mitigation of punishment. The State agreed that this was a reversible error. The ICA held that Defendant was not provided an opportunity to make a statement or present information in mitigation of punishment and the required remedy was remand of the case for resentencing before a different judge.

Affirmed in part, vacated in part.

ICA affirms denial of nonconforming petition for post-conviction relief

2011-06-29T01:20:00.001-05:00

On June 21, 2011, the Hawai'i Intermediate Court of Appeals issued its opinion in Tierney v. State, No. 30635 (Summary Disposition Order- unpublished, panel: Foley, Presiding J., Fujise and Ginoza, JJ.). This was an appeal from the circuit court of the First Circuit, Hon. Richard Perkins, presiding. On the briefs were Michael Tierney, Appellant-pro se, and Delanie D. Prescott-Tate, Esq. for Appellee-State.

Appellant was convicted of a criminal offense and filed a petition for habeas corpus. The circuit court filed these document as a “Nonconforming Petition for Post-Conviction Relief” and sent Appellant forms requiring that he provide “adequate information” to evaluate Appellant’s claims. Appellant failed to timely do so, and the circuit court dismissed Appellant’s petition. Appellant appealed, alleging he was not provided “meaningful access” to the circuit court to protect his Constitutional rights and asked the ICA to review his case on the merits.

The ICA declined to do so, noting the circuit court was empowered to dismiss the petition under HRPP Rule 40(e) because Appellant failed to clarify the petition after being given an opportunity to do so. Order dismissing appeal affirmed.

ICA dismisses appeals for failure to pay filing fees

2011-06-28T21:45:00.007-05:00

On June 21, 2011, the Intermediate Court of Appeals issued orders dismissing the appeals in State v. Shine, NO. CAAP-11-0000113 (unpublished) and State v. Shine, NO. CAAP-11-0000114 (unpublished). These were appeals from the District Court of the Second Circuit.

Appellant filed notices of appeal in these respective cases, but failed to pay the filing fee or request an order to allow Appellant to proceed in forma pauperis in either case. The court clerk advised the Appellant of these matters and of the relevant deadlines in both cases. The ICA held that since no filing fee had been tendered and since no motion requesting Appellant be allowed to proceed in forma pauperis had been filed in either case, the Appeals were dismissed.

ICA affirms denial of third Rule 40 petition

2011-06-28T21:26:00.001-05:00

On June 21, 2011, the Hawaii Intermediate Court of Appeals issued its decision in Stanley v. State, CAAP-10-0000070 (Summary disposition order- unpublished, panel: Nakamura, CJ, Foley and Reifurth, JJ). This case was an appeal from the Circuit Court of the First Circuit, the Hon. Michael D. Wilson, presiding. On the briefs were Charles Anthony Stanley, pro se, and Delanie D. Prescott-Tate, Esq. for Appellee-State.

Defendant was convicted of robbery in the second degree and a direct appeal. After his criminal appeals were denied, he filed three petitions for post conviction relief that were also denied. The present case concerned the denial of the third petition, and alleged numerous procedural and substantive errors.

In denying Defendant’s appeal, the ICA held:

(1) The Complaint alleged the robbery occurred in the City and Count of Honolulu. Because “proof that an event occurred in the City and County of Honolulu or on the Island of Oahu is proof that it occurred within the first judicial circuit,” the circuit court did not lack subject matter jurisdiction.

(2) Because a charge of Robbery in the Second Degree which does not define the term "force" is readily comprehensible to a person of common understanding, the charge against Stanley was not insufficient, and the circuit court did not lack jurisdiction to enter a judgment of conviction for Robbery in the Second Degree.

(3) Because Stanley did not prove the existence of extraordinary circumstances to justify his failure to raise subject matter jurisdictional issues in his direct appeal or two prior HRPP Rule 40 petitions, relief is not available pursuant to HRPP Rule 40. Decision of the circuit court affirmed.

ICA dismisses Rule 40 Petition for Lack of Appellate Jurisdiction

2011-06-28T11:32:00.000-05:00

On June 16, 2011, the Hawai'i Intermediate Court of Appeals rendered its decision in Abordo v. State, No. 30254 (Summary Disposition Order- unpublished, panel: Nakamura, CJ, Fujise and Leonard, JJ). Appeal from the Circuit Court of the First Circuit, Hon. K. O. Lee, presiding. On the briefs were Edmund Abordo appearing pro se and Lisa Itomura, Esq. and Diane K. Tiara, Esq. for Appellee-State.

After conviction, Defendant filed a Petition for Post-Conviction Relief pursuant to Rule 40 of the Hawai'i Rules of Penal Procedure. The case was transferred to the Court Clerk, who assigned the case a new civil designation. Defendant subsequently filed a motion requesting relief in this civil case, but the motion apparently was treated as a new claim and assigned its own civil case number. This motion was denied in the second civil cause, and Defendant appealed.

The ICA noted that the order denying relief was filed in the second case, which still had pending claims to adjudicate. Thus, “there was no final, appealable order” stemming from the first case, and the ICA lacked appellate jurisdiction. Appeal dismissed.

ICA affirms harassment conviction

2011-06-24T13:50:00.003-05:00

On June 16, 2011, the Hawai'i Intermediate Court of Appeals (ICA) issued its opinion in State v. Tapanan, No. 30445 (Summary Disposition Order-unpublished, panel: Nakamura, CJ, Fujise and Ginoza, JJ). This was an appeal from the Circuit Court of the First Circuit, Hon. Darryl Y.C. Choy presiding. On the briefs were Deputy Public Defender Melinda K. Yamaga, Esq. for Defendant-Appellant and Deputy Prosecuting Attorney Anne K. Clarkin, Esq. for State-Appellee.

Following a bench trial, Defendant was convicted of Harassment, in violation of HRS § 711-1106(1)(a). Defendant first alleged the trial court’s finding of fact that the investigating officers testified “truthfully” was impermissibly inconsistent with it's findings that the officers did not do “a thorough investigation” and did not “follow up very properly.”

The ICA rejected this argument, noting that the trial court considered “the entire package of what happened that day” in holding the crime of harassment had occurred. The sole factual error concerned the length of time the alleged victim had been asked to stay away from his home. This error was deemed to not have affected Defendant’s “substantial rights and was harmless error. Hawai'i Rules of Penal Procedure, Rule 52(a).”

Defendant further argued that the evidence was insufficient to support her conviction. In viewing the evidence in the light most favorable to the prosecution, the ICA rejected this argument, noting the existence of testimony of numerous officers supporting the charge, “as well as the photographs of injuries” to the alleged victim. Conviction affirmed.

ICA holds trial court did not abuse it's discretion in denying Act 44 probation

2011-06-24T02:20:00.002-05:00

On June 16, 2011, the ICA issued its opinion in State v. Enos, No. 30653 (Summary Disposition Order- unpublished, panel: Nakamura, C.J, Furise and Ginoza, JJ). This case was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto presiding. On the briefs were Jennifer D.K. Ng, Esq. for Defendant-Appellant and Artemio C. Baxa, Esq. for the State-Appellee.

Defendant pled guilty to two drug charges, and, pursuant to the plea agreement, was “free to ask for sentencing under Act 44 (HRS 706-622.5) and the State was free to oppose it.” HRS § 706-622.5 gives the court discretion to sentence certain first-time drug offenders to probation provided the person meets specified criteria. Defendant’s criminal history contained numerous convictions, however, and the Court declined to give a probationary sentence. Defendant was sentenced to ten years and five years in the respective counts, to be served concurrently.

On appeal, the ICA rejected Defendant’s argument that the Court erred in finding him to be violent, noting that Defendant had been convicted of such crimes such as terroristic threatening and assault. The ICA held that without a finding that Defendant was “non-violent,” Defendant would not qualify for probation under Act 44, and the trial court did not abuse its discretion in refusing to grant said probation. Affirmed.

ICA affirms domestic assault conviction

2011-06-24T01:56:00.002-05:00

On June 16, 2011, the ICA issued its opinion in State v. Pierre-Louis, No. 30566 (Summary Disposition Order- Unpublished, panel: Leonard, Presiding Judge, Reifurth and Ginoza, JJ). The case was an appeal from a conviction from the First Circuit Court, Hon. Edward Kubo, Jr., presiding. On the briefs were Nelson W.S. Goo, Esq. for Defendant-Appellant and Brian Vincent, Esq. for the State-Appellee.

Defendant was convicted of Abuse of Family and Household Member in violation of HRS § 709-906 and sentenced to two years probation, credit for two days served and a small fine.

On appeal, Defendant first alleged numerous evidentiary errors committed by the Court in disallowing evidence of the alleged victim’s prior drug use and lying about such use. In rejecting Defendant’s arguments, the ICA noted that while lying about drug use “is probative of the witness' untruthfulness[,]” the court “cannot conclude the trial court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice in concluding that the prejudice outweighed the probative value of the evidence.”

Defendant next argued that the evidence was insufficient to support his conviction. The ICA disagreed, noting the evidence introduced at trial showing that the Defendant had placed his hands on and injured the alleged victim.

Defendant also alleged his trial lawyer’s performance fell beneath the proper standard of care and was thus ineffective. This argument was rejected by the ICA as “speculative” and objected to tactical decisions that “normally will not be questioned by a reviewing court." The conviction and sentence were affirmed.

ICA affirms concurrent, enhanced sentences

2011-06-23T23:37:00.001-05:00

On June 16, 2011, the Hawaii ICA issued its opinion in Gomes v. State, No. 30617 (Summary Disposition Order- unpublished, panel: Nakamura, C.J., Reifurth and Ginoza). This was an appeal from the Circuit Court of the Second Circuit, Hon. Shackley F. Raffetto, presiding. The State-Appellee was represented by Richard Minatoya, Esq. and the Appellant represented him self pro se.

Defendant was found guilty of first-degree sexual assault and manslaughter and was sentenced to concurrent extended sentences. Defendant appealed, in part alleging that his sentence was invalid because the enhancement statute in place at the time of his conviction (HRS 706-662) was later ruled to be unconstitutional in State v. Maugaotega, 115 Hawai'i 432 (2007).

In rejecting this argument, the ICA noted that Maugaotega “does not apply retroactively to Gomes’s collateral attack of his extended term sentences.” Further, despite Maugaotega’s holding that 706-662 was unconstitutional, the Hawai’i Supreme Court held in State v. Jess 117 Hawai’i 381 (2008) that subsequent legislative action “clearly endorsed the empanelment of juries to make the requisite extended term findings[.]” Thus, 706-662 may be constitutionally applied when a jury, not a judge, determines whether an enhanced sentence was “necessary for [the] protection of the public.”

The Gomes panel concluded: “The supreme court's holding in Jess, that the former version of HRS § 706-662 may be judicially modified and constitutionally applied, definitively establishes that the former version of HRS § 706-662, under which Gomes was sentenced, is not void ab initio.” The appeal was denied.

ICA affirms conviction for second degree robbery

2011-06-21T12:49:00.003-05:00

On June 14, 2011, the Hawaii ICA issued its opinion in State v. Crabbe, No. 30353 (Summary Disposition Order- Unpublished, panel: Foley (presiding), Ginoza and Reifurth). This was an appeal from the Circuit Court of the First Circuit, Hon. Dexter D. Del Rosario, presiding. Defendant-Appellant was represented by Anosh H. Yaqoob, Esq., and the State-Appellee was represented by Brian R. Vincent, Esq.

In Crabbe, the Defendant was convicted of robbery in the second degree, and raised several issues on appeal.

First, Defendant argued that the trial court failed to instruct the jury on the lesser-included offense of theft in the fourth degree. The ICA disagreed, noting that even if the Court had erred in not giving this instruction, such an error was harmless as “the jury convicted Crabbe of the charged offense of Robbery in the Second Degree.”

Next, Defendant alleged that the trial judge erred in refusing to continue the trial to allow Defense counsel to interview a prosecution witness and by denying Defendant’s request for a new trial. In rejecting this argument, the ICA noted that “Crabbe had made no attempt to contact the prosecution witness prior to trial, refused the court’s offer of a recess to allow defense counsel to speak with the witness, was able to cross-examine the witness at trial, and fails to show how interviewing the witness prior to trial would have aided his defense. Assuming arguendo there was error, it was harmless.” The conviction was affirmed.

Tapia v United States

2011-06-16T14:40:00.001-05:00

From Peter Wolff, Federal Public Defender, District of Hawaii:

"Today, the Supreme Court decided Tapia v. United States, No. 10-5400, holding that a district court may not impose or lengthen a term of imprisonment in order to promote the defendant's rehabilitation. In an opinion written by Justice Kagan, the Court breezes through the familiar sentencing "story line" to demonstrate that 18 USC 3582(a), which sets forth the "factors to be considered" when a court orders imprisonment, precludes district courts from considering rehabilitation for purposes of determining whether to impose a term of imprisonment or to lengthen the term of imprisonment. Put another way, "when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation --- because imprisonment is not an appropriate means of pursuing that goal." This conclusion is supported by the text of 3582(a), its context in the SRA (including 28 U.S.C. 994(k), a directive to the Sentencing Commission), and its legislative history. End of story. Because the judge in this case considered the defendant's need to participate in RDAP when imposing a term of imprisonment at the top of the guideline range (note that the holding applies to both within-guideline sentences and sentences above the guidelines), the Court reversed the decision of the Ninth Circuit. (Justice Sotomayor, joined by Justice Alito, concurred but wrote separately to express skepticism that the district judge actually considered the defendant's rehabilitative needs in choosing the term of imprisonment.)"

ICA holds that failure to specify state of mind in OVUII charge not deprive trial court of subject matter jurisdiction

2011-06-15T13:20:00.001-05:00

On June 14, 2011, the ICA issued its opinion in State v. Pai, No. 30516 (ICA- Unpublished Summary Disposition Order. Panel: Foley, Reifurth and Ginoza). This case is an appeal from District Court of the First Circuit, Honolulu Division, Hon. William Cardwell presiding. Briefing attorneys were Timothy I. McMaster, Esq. (Pai) and Anne E. Clarkman, Esq. (State).

In Pai, Defendant was convicted of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), a violation of HRS § 291E-61(a)(1). On the day of trial, Pai filed a Motion to Dismiss, alleging that the charging document failed to allege the requisite state of mind necessary to commit the crime, thus failing to state an essential fact and give adequate notice of the charge. This failure, Pai alleged, deprived the District Court of subject matter jurisdiction.

The ICA affirmed, holding:

• OVUII determined by alcohol content is an “absolute liability” offense. The HRS § 702-204 requirement that the State must prove a defendant acted with the requisite state of mind does not “apply to a crime outside the penal code where a legislative purpose to impose absolute liability plainly appears[.]”
• There is no such legislative intent for OVUII determined by impairment. It is therefore not an “absolute liability offense” and the state of mind requirements under HRS § 702-204 apply. Because OVUII does not specify a requisite state of mind, “the state of mind is intentionally, knowingly or recklessly[.]”
• This is a separate issue from whether the charging instrument adequately gives a defendant notice of the charges against him. Here, the charging document was adequate as “state of mind is not an ‘element’ of a criminal offense.” Further, OVUII is a “general intent” crime, and the state of mind can be inferred without specification in the charge.

ICA overturns conviction for excessive speeding violation

2011-06-14T14:10:00.002-05:00

On June 9, 2011, the Hawaii Intermediate Court of appeals issued an unpublished summary disposition order in State v. Eid, No. 29587. In Eid, the Defendant was convicted of excessive speeding (30 mph over the posted speed limit) in the District Court of the First Circuit, Kaneohe Division, Hon. David W. Lo presiding. On appeal, the Defendant argued that his conviction should be set aside as the State failed to adequately lay a foundation for the admission of the "speed check card" and speedometer reading for the officer's squad car.

The ICA agreed, noting that the state had failed to lay the requisite predicate as set out in State v. Fitzwater, 122 Hawai’i 354 (2010) for the admission of such evidence. "In particular, the State failed to prove ‘the manufacturer of the equipment used to perform the check[,]’ . . . insofar as only the manufacturer of the "master head" and not the entire speed check testing assembly referred to as "the dynamometer," was established." In the absence of evidence that Defendant was going 30 mph over the speed limit, the conviction could not stand. However, there was sufficient evidence to prove the lesser-included offense of noncompliance with speed limit.

Dissenting, Chief Judge Nakamura noted that the State had introduced extensive evidence showing that the machinery in question was in good working order. Further, the observed speed of the Defendant was high enough that the margin of error would have established Defendant’s speed being in excess of 30 miles per hour over the posted speed limit. Judge Nakamura stated that the Fitzwater factors were applicable "where a manufacturer's instructions for using the device and for training exist and the device is sufficiently complex that it is necessary for such recommendations to be followed to properly operate the device." However, Judge Nakamura believed that when manufacturer's recommendations do not exist, or the individuals using the device have sufficient training and expertise to operate it, an absence of said recommendations should not prohibit the state from establishing an adequate foundation.

Setser v. United States

2011-06-13T16:38:00.002-05:00

Big news! My good friend Jason Hawkins of the Federal Defenders of the Northern District of Texas is going to the "big show" to argue for his client before the SCOTUS. Today, the Supremes granted Jason's writ of certiorari in Setser v. United States, No. 10-7387. In that case, the Court will decide whether a district court has the authority to order a federal sentence to run consecutive to an anticipated, but not-yet-imposed, state sentence. Congratulations Jason!

New email scam uses Big Island's County logo.

2011-06-13T10:16:00.000-05:00

From the 6/11/11 Honolulu Star Advertiser website:

Scam involves official-looking ‘police' emails

Big Island police are warning the public about an email scam that uses the county's logo and other information, such as a picture of a police officer, to mimic official letterhead. A Kauai woman received several emails as part of a scam attempting to obtain large sums of money from her, Hawaii County police reported.

The emails contained a photo of a Hawaii County police officer, a Police Department logo and other information that had been taken from the Hawaii Police Department's website in an apparent attempt to mimic official letterhead and impersonate a police officer. "The Hawaii Police Department does not contact the public in this manner," said Big Island Deputy Chief Paul Ferreira. "If you receive an email like this, please do not respond to it. Instead, report the incident to police immediately." The Kauai Police Department also is investigating the incident.

Justices Scalia and Thomas have rare disagreement

2011-06-12T12:43:00.003-05:00

It has been reported that from 1994 to 2004, United States Supreme Court Justices Antonin Scalia and Clarence Thomas voted the same way 87.4% of the time, the highest percentage on the Court. In Sykes v. United States, No. 09-11311, decided June 9, 2011, these two justices showed one of their rare disagreements.

In Sykes, the Court addressed whether a prior conviction for "felony vehicle flight" met the criteria for a prior "violent felony" under the Armed Career Criminal Act (18 USC 924(c)), and therefore could be a basis for a 15 year mandatory minimum offense. The Supremes held that it did, by a vote of 6-3.

Concurring in the result, Justice Thomas first rejected majority's complex test for determining a proper prior "violent felony" under the Armed Career Criminal Act. Justice Thomas next argued that in an ordinary case, the proper question was whether the the underlying conviction involved conduct that presented a serious potential risk of physical injury to another. In this case, Thomas felt it did.

Dissenting, Justice Scalia recited the series of recent cases the Court has decided trying to determine what prior convictions satisfy the ACCA, and reasoned, "we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home." Believing this statute to be unconstitutionally vague, Scalia noted, "Of course . . . repetition of constitutional error does not produce constitutional truth." That is a quote that will likely be cited in appellant briefs for the next century!

New Holder Memo

2010-06-08T10:49:00.002-05:00

On May 19, 2010, the Attorney General of the United States issued a memorandum to all federal prosecutors entitled: "Department Policy on Charging and Sentencing." (http://sentencing.typepad.com/files/holder-charging-memo.pdf)

It provides in part:

Consistent with the statute and with the advisory sentencing guidelines as the touchstone, prosecutors should seek sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford deterrence, protect the public, and offer defendants an opportunity for effective rehabilitation. In the typical case, the appropriate balance among these purposes will continue to be reflected by the applicable guidelines range, and prosecutors should generally continue to advocate for a sentence within that range. The advisory guidelines remain important in furthering the goal of national uniformity throughout the federal system. But consistent with the Principles of Federal Prosecution and given the advisory nature of the guidelines, advocacy at sentencing -- like charging decisions and plea agreements -- must also follow from an individualized assessment of the facts and circumstances of each particular case. All prosecutorial requests for departures or variances -- upward or downward -- must be based upon specific and articulable factors, and require supervisory approval.

There are no substantive changes from the status quo. It's the same old system, wrapped in a sweeter package. The most serious readily provable offense is to be charged, regardless of the insanity that is our federal drug crime scheme. Thus, 5-10 years incarceration or more for first offenders is still to be the norm. The Holder also memo makes no mention of increased use of FRCrP Rule 11(c)(1)(c) plea agreements, which would provide an agreed-to sentence to the court, and not leave it to the whims of the judge. A policy increasing the use of 18 USC 3553(e) motions to allow for sentences below the mandatory minimum is not included. Also not addressed is when 851 enhancements are specifically to be filed- another lost opportunity.

Overall, the memo adds nothing new and nothing will probably change in the policies of the offices of the United States Attorneys across the United States. This is neither bold nor warranted.

Proposed Repeal of "Recency Points" guideline in calculating criminal history

2010-04-14T09:25:00.000-05:00

The Federal Sentencing Guidelines take into account various factors to arrive at a proposed sentencing range. One of those factors is an assessment of points to determine a defendant’s criminal history category. The higher the criminal history category (I to VI), the higher the proposed sentencing range.

The total points from items USSG §4A1.1 (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five, Part A. USSG §4A1.1 currently includes:

(e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d), add only 1 point for this item.

According to our friends from the Federal Defenders in the Northern District of Texas,

On Tuesday, April 13, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting §4A1.1(e) (recency points). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available at http://www.fd.org/pdf_lib/FPD_Testimony%20of%20Meyers%20and%20Mariano_FINAL.pdf

The recency amendment (along with other amendments being voted on this cycle) will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

Padilla v. Kentucky, continued

2010-04-12T00:25:00.002-05:00

The Immigrant Defense Project has issued a helpful practice advisory for criminal defense counsel in the wake of Padilla v. Kentucky.

To find it, go to: http://www.immigrantdefenseproject.org/, and look for the link at the bottom right of the webpage.

It not only describes the duty of counsel to advise clients of the immigration consequences of criminal convictions, but provides two very handy appendices: "Immigration Consequences of Convictions Summary Checklist" and "Suggested Approaches for Representing a Noncitizen in a Criminal Case."

Discretionary Use of § 851 Enhancements

2010-04-11T21:02:00.001-05:00

If a person accused of a drug offense in federal court has a prior felony drug conviction, the existence of this prior conviction or convictions can double the sentence (or more) for that offender.

For example, a defendant who pleads guilty to the offense of conspiracy to distribute, and possess with the intent to distribute five (5) grams or more of a mixture or substance containing a detectable amount of cocaine base (“crack”), a Scheduled II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B), is facing a mandatory minimum of five years and a maximum of not more than 40 years. However, if this defendant has a prior conviction for “a felony drug offense,” than his or her mandatory minimum is 10 years, regardless of the drug amount. See 21 U.S.C. § 841(b)(1)(B).

However, in order for this enhanced mandatory minimum to take effect, the Government must file a Notice of Enhancement under 21 U.S.C. § 851(a)(1). That statute provides: “No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.”

It is crucial to note that the Government has the discretion not to file this enhancement. The United States Attorneys’ Manual (USAM 9-27.300(B)) indicates that § 851 notices should be filed, but not where: “(1) the failure to file or the dismissal of such pleadings would not affect the applicable guideline range from which the sentence may be imposed; or (2) in the context of a negotiated plea[.] . . . . The reasons for such an agreement must be set forth in writing. Such a reason might include, for example, that the United States Attorney's office is particularly overburdened, the case would be time-consuming to try, and proceeding to trial would significantly reduce the total number of cases disposed of by the office. The permissible agreements within this context include: (1) not filing an enhancement; (2) filing an enhancement which does not allege all relevant prior convictions, thereby only partially enhancing a defendant's potential sentence; and (3) dismissing a previously filed enhancement.” See http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm

My experience in practicing in different federal districts is that the Government’s implementation of USAM 9-27.300(B) varies widely. I have had an AUSA in one jurisdiction offer to not file an enhancement if my client pled guilty, and had an AUSA in another jurisdiction file an enhancement even when my client pled guilty, cooperated and the Government later filed a 5k Motion for a downward departure!

It makes no sense to file § 851 Notices when a defendant is pleading guilty. Federal drug laws are very harsh, and a defendant‘s criminal history is already a factor in determining that defendant’s federal sentencing guideline range. It is my hope that the Department of Justice will revisit USAM 9-27.300(B) to reach a uniform, just result.

Federal Mortgage Fraud Conviction against lawyer in Washington State

2010-04-04T21:26:00.001-05:00

On April 3, 2010, the following report was posted on the Internet regarding how a lawyer was convicted for mortgage fraud in Washington State:

Bothell's Robert Ernest Brandt, 42, a former Kirkland attorney and escrow officer, was convicted in U.S. District Court in Seattle April 1 of conspiracy and four counts of wire fraud. The jury deliberated approximately one day following an eight-day trial. When sentenced by U.S. District Judge Richard A. Jones on June 25, Brandt faces up to 20 years in prison and a $250,000 fine. The Washington State Bar Association disbarred Brandt in 2006 after concluding he had allowed the improper use of his client trust account in the mortgage fraud scheme, and had improperly engaged in transactions in which he had a conflict of interest.

The federal case was indicted in June of 2008, as part of "Operation Malicious Mortgage," and the overall investigation was conducted jointly with the Washington State Department of Financial Institutions, the King County Prosecuting Attorney’s Office and the Kirkland Police Department. According to records in the case and testimony at trial, more than a dozen people, including Brandt, were linked to an extensive mortgage fraud scheme operating in 2004 and 2005. Those who have already pleaded guilty in the scheme include a former bank employee, mortgage brokers, as well as the owner of shell companies involved in “flipping” dozens of properties as part of the fraud.

Ten members of the scheme were charged, six in federal and four in state court. All of the charged defendants pleaded guilty, except for Brandt. A number of the charged co-conspirators testified at trial. The conspirators would identify houses and would use shell companies or third parties to purchase the homes, again according to records and testimony. At the same time, they recruited “straw buyers” who would enter into a purchase agreement to buy the same home from the conspirators at an inflated price (a “flip”). The conspirators assisted the straw buyers with phony paperwork for the home loans, making it appear that they were qualified for the mortgage loans and planned to occupy the houses. Members of the conspiracy allegedly falsified numerous documents including appraisals, verifications of deposits, employment verification and closing documents. The conspirators split the proceeds from the fraudulent mortgages, and the straw buyers defaulted on the loans after pocketing as much as $20,000 for their fee. The homes were foreclosed and financial institutions and mortgage lenders suffered substantial losses, estimated to exceed $7 million dollars.

For his part, according to records and testimony, Brandt ran a company called “Escrow Authority,” which closed all of the sales of the flipped properties. He permitted other members of the scheme to use money out of his lawyer’s trust account to acquire properties. The same properties were then quickly resold to straw buyers for significantly higher prices, and fraudulent loans were obtained to finance the fictitious resales. Brandt also helped create shell companies used as part of the scheme, and signed off on fraudulent settlement statements (HUD forms) provided to lenders that failed to disclose the fraudulent nature of the transactions.

http://www.seattlepi.com/sound/417834_sound89795637.html

Padilla v. Kentucky

2010-04-02T04:20:00.000-05:00

In PADILLA v. KENTUCKY, No. 08–651, 550 U.S. __ (March 31, 2010), the SCOTUS held: “when the deportation consequence is truly clear, as it was here, the duty [of that person’s attorney] to give correct advice is equally clear.” This language perhaps clears the way for collateral attacks by resident aliens (“green card holders”) who have been deported based on guilty pleas to crimes in which they were not advised such pleas would result in immediate deportation. A review of the opinion, [http://www.law.cornell.edu/supct/html/08-651.ZO.html] written by Justice Stevens, raises some interesting points:
• The Supreme Court seems to have at least partially discarded the familiar legal axiom that immigration consequences as a result of a guilty plea are a “collateral matter” and thus not the basis for post-conviction relief on the basis of ineffective assistance of counsel. The Padilla Court held: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” 550 U.S. at __, slip op. at 7-8.
• The Supreme Court seems to have laid out a bright-line rule – if a resident alien is charged with “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” (See 8 U. S. C. §1227(a)(2)(B)(i)), the defense attorney must advise that resident alien that a plea to such a charge will make him or her “eligible for deportation.” Certainly, as in Padilla, an attorney must refrain from making “false assurances that his conviction would not result in his removal from this country.” 550 U.S. at __, slip op. at 11.
• Relief may not be available on every occasion that a Defendant is not accurately advised of the immigration consequences of a particular plea. The Padilla court noted: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” 550 U.S. at __, slip op. at 11-12.

Texas Judge grants motion to treat crack the same as powder

2010-04-01T18:08:00.005-05:00

From the Federal Public Defenders of the Eastern District of Texas:

"This past Tuesday, March 30, 2010, in a case of first impression in the Eastern District of Texas, Judge Leonard Davis granted the Defendant's Motion to treat crack the same as powder cocaine for those sentenced for crack offenses. [In United States v. Sheldon Greer, No: 6:09-CR-20 (E.D.Tex.Tyler 2010,] Judge Davis adopted the current national trend toward equalization of the two forms of the same drug, rejected the Guidelines in their current form, and declared that beginning today and from this point forward, he will sentence Defendants convicted of Federal crack cocaine offenses the same as if the form of the cocaine was powder. Kimbrough was of enormous benefit to the Court in his decision. This decision had and will have a profound impact in that the first two Defendants went from 70-87 months down to 24 months and from 108-135 months to 60 months on the second (mandatory minimum prevented further reduction)."

Puckett v. United States

2009-03-25T22:00:00.007-05:00

On March 25, 2009, the Supreme Court issued its opinion in Puckett v. United States, 07-9712. (See http://www.supremecourtus.gov/opinions/08pdf/07-9712.pdf). The decision was made by a 7-2 majority, with Justice Scalia writing the opinion for the majority. Justice Souter dissented, and was joined by Justice Stevens.

In any case that an attorney receives a decision he or she personally disagrees with, that attorney is tempted to complain that judges were unfair or did not understand the issues presented. That is not my intent at all. However, there are a couple points arising from the decision that may have unexpected consequences.

The first has to do with the type of prejudice required to satisfy a "plain error" evaluation under Rule 52(b). In Puckett, the majority stated: "Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been affected is his sentence." Puckett, Slip op. at 12, n.4.

Unfortunately, it is my belief that no defendant will ever be able to satisfy this requirement. 18 USC 3553(a) states that a district court, in determining the particular sentence to be imposed, "shall consider" many different types of factors provided in that statute in determining a sentence. A district court judge must by law consider all these factors in imposing sentence. As the 3rd Circuit recently noted: "To be procedurally reasonable, a sentence must reflect a district court's meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a). A district court "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority." Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d 203 , 2007 WL 1772146, at *12 (2007). A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account. Cooper, 437 F.3d at 329." United States v. Lessner, 498 F.3d 185, 203 (3rd Cir. 2007).

Because a district court judge is bound by law to consider all the factors listed under 3553(a), as a practical matter, it is difficult to imagine a sentence that would ever be found by an appellate court to have been determined solely by a factor not even listed under 3553(a), i.e., an agreement by the government to take or forgo taking an action that later is determined to have been breached. In effect, Puckett forecloses all Rule 52(b) relief when the defendant fails to object to the Government's breach of a plea agreement.

Another troubling point is that the Puckett decision may really be only half of the equation. The "other shoe" that may be dropping soon is when a defendant does object to a breach of the plea agreement. In Santobello v. New York, 404 U. S. 257 (1971), the Supreme Court held "that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved, but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262." Puckett, slip op. at 12. However, in Puckett, the Supreme Court indicated it was an open question whether Santobello was still good law. "We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder." Id., n.3.

Under the "harmless-error" test, an appellate court applies Rule 52(a), which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" "When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record -- a so-called "harmless error" inquiry -- to determine whether the error was prejudicial." United States v. Olano, 507 U.S. 725, 734 (1993).

Here, Puckett has seemingly answered this question- prejudice is only established when the breach affects the "outcome" of the defendant's sentence. It arguably does not matter then if the defense attorney objects. If no prejudice resulted to the defendant from the breach, the defendant cannot prevail. Further, a breach of a plea agreement is, according to the majority, not a structural error which would preclude Rule 52(a) consideration. "[B]reach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra[.]" Puckett, Slip Op. at 11. While the Puckett majority held in passing that its earlier decision in Santobello (and presumably its automatic reversal standard with no required showing of prejudice) was still applicable in cases where the Defendant objects to a plea breach, I believe that the Government will challenge an objected to breach of a plea agreement as not amounting to "harmless error" in a future appeal.

Another sign Santobello is in trouble is the Puckett majority's casting aside its brethren decisions from the same time period. In Puckett, the Supreme Court distinguished or overruled its decisions holding that a plea agreement cannot stand if induced by "misrepresentation" including "unfulfilled" promises (Brady v. United States, 397 U. S. 742 (1970) and that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." (Mabry v. Johnson, 467 U. S. 504, 509 (1984)). See Slip Op. at 8-9, n.1. If these "bedrocks" of Constitutional law are not safe, can Santobello be far behind?

As Justice Souter wrote in his dissent, "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here." While the Supreme Court majority had an easy target in Mr. Puckett, the rules it set out may have unintended adverse results. The Puckett decision unfortunately may undermine the trust and confidence in the plea system and encourage United States Attorneys to breach plea agreements.

Puckett v. United States

2009-01-25T09:17:00.006-06:00

On January 14, 2009, I argued for petitioner James Benjamin Puckett in Puckett v. United States, 07-9712, before the United States Supreme Court. With me at counsel table were Jonathan Hacker, Pamela Lakatos and M. Christina Rossi. Opposing was Assistant to the Solicitor General Lisa Schertler, and with her at counsel table was Kathleen Felton. The issue granted by the United States Supreme Court for review was: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure." Amazingly, I don't think a single question was posed by the Justices to either side as to this issue.

I certainly could not have done this alone. The attorneys at O'Melveny & Meyers did a great job in preparing me for oral argument. I did five mock panels beforehand, which were all helpful. One of the these was held at the Georgetown Law School Supreme Court Institute, coordinated by Tina Drake-Zimmerman. Ms. Drake-Zimmerman was extremely friendly and of great assistance. Dahlia Fetouh wrote the excellent amicus brief for NACDL and kindly took the time to come to oral argument. Tom Vanderloo of the United States Sixth Circuit Court Library in Chattanooga was helpful and supportive. Richard Anderson, Jason Hawkins and Jerry Beard of the Federal Public Defender's Office of the Northern District of Texas were my foundation throughout this voyage.

In regard to the attorneys who sat with me a counsel table, Jonathan Hacker did a fabulous job on the briefs and was patient with this small town lawyer who had to throw his two cents in at every opportunity. Pamela Lakatos of Plano, Texas, is one of the finest attorneys I have ever known, and a real mentor to me. And M. Chris Rossi is a wonderful lawyer, and is an even more wonderful sister to assist her brother on this stressful day.

Oral argument itself was vigorous, to say the least. After my third sentence, Justice Ginsburg jumped in, and we were off to the races. All the justices, except for Justice Thomas, asked questions, some more pointed than others. Chief Justice Roberts seemed to be the most amenable to my client's position, but of course it is impossible to tell how the votes will come down. Justices Scalia and Alito seemed the least impressed with my arguments, and Justice Souter asked me a hypothetical in which he used the term "metaphysical." It was very challenging, and I did the best I could. My goal was not to appear to be hopelessly outclassed by the more experienced Assistant Solicitor General, and I like to think I achieved this goal.

All the pertinent documents can be found at: http://www.scotuswiki.com/index.php?title=Puckett_v._United_States. It is very rare that a sole practitioner gets to argue before the Supreme Court. I was aware of this, and felt the weight of history many times. One time was when we were being briefed by Clerk of the Supreme Court William Suter in the lawyers lounge on the day of oral argument. He could not have been nicer, but standing there before us in his morning coat and striped pants, and in the presence of numerous large portraits of former justices, it was a moment in which you felt a strong link to the history of the Court.

Another time I felt the weight of history was speaking with Justice Stevens during oral argument. Justice Stevens is a living link to some of the great justices of the past. Justice Stevens was preceded by Justice William O. Douglas. Justice Douglas had served with Associate then Chief Justice Harlan Stone. Associate/Chief Justice Stone had served with Justices Brandeis, Holmes, Cordozo and Taft, among others. How many poor souls had tried to match wits with these giants who have sat on the lofty bench of the Supreme Court? Not many have had this opportunity, but all probably felt as nervous as I did.

Two quotes from two very different authors seem appropriate, if not directly on point. First, Chief Justice Marshall wrote the following in his opinion in the Aaron Burr treason trial in 1807: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true." My hope is that the Supreme Court does not retreat from a bright line rule that a plea induced by a false promise cannot stand. There are many reasons why the Supreme Court loathes an automatic reversal rule- but, the repugnancy of such a rule pales in comparison to the repugnancy of allowing our government to trick a citizen into giving away his or her Constitutional rights to trial and due process of law.

The second quote is from recently-deceased author John Mortimer. In his short story "Rumpole and the Man of God," fictional aged lawyer T.C. Rowley ("Uncle Tom"), in lecturing his younger London temple-mates on the long-past workings of chambers, states: "We had no work in those days . . . No work of any kind. We spent our days practising chip shots, trying to get an old golf ball into the waste-paper basket with [a mashie niblick]. . . . Being able to defend myself with a club-like object would have been good training for my recent experience!

Second Chance Act of 2007

2008-09-01T14:00:00.001-05:00

On April 9, 2008, President Bush signed the “Second Chance Act of 2007.” A summary of the Act is found at: http://www.whitehouse.gov/news/releases/2008/04/20080409-15.html.
In short, “the legislation formally authorizes key elements of the successful Prisoner Reentry Initiative (PRI), announced by the President in 2004, to help prisoners effectively reintegrate into the community. Additionally, the Second Chance Act enhances drug treatment, mentoring, and transitional services for ex-offenders through partnerships with local corrections agencies and faith-based and community organizations.” The Act allocates $360 million towards a variety of reentry programs. One of the main components of the bill is the funding of demonstration projects that would provide ex-offenders with a coordinated continuum of housing, education, health, employment, and mentoring services.

However, it will be up to Congress to appropriate the funds for this program. The success of this program, even with lofty hopes and goals, will depend on whether the Government will follow through with the necessary funding.

New Crack Cocaine Guidelines

2008-09-01T13:32:00.001-05:00

The New “Crack Cocaine” Guidelines- an introduction

Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.

Change in guidelines

For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.

The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.

Procedure

18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).

The major points included in USSG §1B1.10 are:

• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”

• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.

• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.

Northern District of Texas

In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.

A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.

It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.

The Effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law

2008-01-23T12:52:00.000-06:00

This is an article I wrote for the newsletter for the Dallas Chapter of the Federal Bar Association on the effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law:

On July 27, 2006, President Bush signed into law the “Adam Walsh Child Protection and Safety Act of 2006.” (PL 109-248 [HR 4472], 120 Stat 587)(Hereinafter, “The Act”). The Act’s purpose is to “protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” See Preface, PL 109-248.

The Act seeks to establish a comprehensive national system for the registration of certain criminal offenders. See Sec. 102 of the Act, codified at 42 U.S.C § 16901. Specifically, “sex offenders” are required to register with the appropriate local or state government registry. See Sec. 113 of the Act, codified at42 U.S.C § 16913.

A “sex offender” is defined as “an individual who was convicted of a sex offense.” See Sec. 111(1) of the Act, codified at 42 U.S.C § 16911. The term “sex offense” includes any offense (or conspiracy to commit that offense) that “has an element involving a sexual act or sexual contact with another,” any offense “that by its nature is a sexual offense against a minor” and many federal crimes, including those prohibiting sex abuse (Chapter 109A of Title 18, USC), sexual exploitation of children (Chapter 110 of Title 18, USC) and transportation for illegal sexual activity (Chapter 117 of Title 16, USC). See Sec. 111(5)(a) of the Act, codified at 42 U.S.C. § 16911.

The Act provides for strict reporting requirements upon such conviction and for the Justice Department to create a national registry of sex offenders. See Sec. 113(b) of the Act, codified at 42 U.S.C § 16913; Sec. 119 of the Act, codified at 42 U.S.C § 16919. Under the Act, a failure to register is itself a federal crime punishable by fine or imprisonment not more than ten years, or both. See Sec. 141 of the Act, codified at 18 U.S.C § 2250(a)(3).
The Act specifically targets immigrants in a number of ways. First, the Act does not limit its registration requirement to those who committed crimes within the United States. Thus, persons who were convicted of such offenses outside the United States presumably must register. However, the Act provides:
(B) FOREIGN CONVICTIONS.--A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.

Section 112(b) of the Act provides that the Attorney General shall issue guidelines and regulations to interpret and implement this title. See 42 U.S.C § 16912. However, these regulations have not been issued, so the definition of “sufficient safeguards” has yet to be determined.

Second, the Act provides:

The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.

See Section 128 of the Act, codified at 42 U.S.C § 16928. Again, the Act provides no further details as to how this information is to be gathered or obtained.

Third, Section 401 of the Act amends Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A) by inserting a new clause: "(v) . . . Any alien who is convicted under section 2250 (failure to register as a sex offender} of title 18, United States Code, is deportable."

Fourth, Section 402 of the Act amends Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) to bar U.S. citizens and Legal Permanent Residents (LPRs) convicted of any “specified offense against a minor” from having family based immigration petitions approved, “unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described . . . is filed.” Unfortunately, Congress does not provide instruction as to how the Secretary is to make this determination.
Fifth, Section 402 of the Act further amends Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) to flatly prohibit a U.S. citizen convicted of any “specified offense against a minor” from sponsoring an alien for admission to the United States under a fiancé (K) Visa.
In sum, the Act broadens and toughens the penalties and consequences for sex offenders. Immigrant sex offenders (and the spouses and fiancés of U.S. citizen or LPR offenders) are not spared, and are specifically targeted for increased scrutiny and sanctions, without the benefit of clear guidelines or interpretive regulations.

Forensic Interview Problems in Sex Assault Cases

2007-11-01T09:03:00.000-05:00

In child sex abuse cases, emotions run extremely high. In a recent trial I defended in Collin County, Texas, a 4 year old child made an "outcry" to her mother the night of alleged offense, but the next day, in a forensic interview, denied she was ever abused. Two days later, at the insistence of the mother, the child was reinterviewed and, after careful prompting and leading questions, accused my client of sex abuse.

The danger of such evidence is that the child's testimony then (and later) could be forever colored or "implanted" by improper interviewing techniques. The New Jersey Supreme Court in State v. Michaels, 642 A.2d 1372 (N.J. 1994) acknowledged this problem. In Michaels, a daycare worker was convicted of sex abuse based in large part on very leading and inappropriate questioning by the examiner of very young children:

In Michaels, the New Jersey court recognized that "the use of highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." Id. at 1379. The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques 1 implicates "principles of due process." Id. at 1380. The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence. Id. at 1383.

Johnson v. State, 2004 Tex. App. LEXIS 10133 (Tex.App.-Waco 2004). In the case we tried, we argued that even though the Michaels' test has not been adopted in Texas, there was enough evidence to require a "taint" hearing. The judge, to his credit, indicated that while he did not think the transcripts showed that there was enough improper questioning to suppress the testimony of the child, agreed to let us make a record.

The following day, we called our own forensic psychologist who indicated that, based on the foregoing, "some evidence" did exist that the statements were the product of suggestive or coercive interview techniques. The judge unexpectedly held that we had met our burden under Michaels, and required the State to call their examiner to prove the reliability of the proffered statements. At that point, we was able to cross the examiner and had, in this case, something to talk about. Following this, the State offered a plea to a deferred adjudication to a much reduced sentence (without sex offender registation), which the client accepted.