United States v. Howe, No. 12-4394-cr (2d Cir. Nov. 25, 2013) (Pooler, Raggi, and Wesley) (summary order), available hereConvicted of receiving and possessing child pornography, Howe was sentenced to 180 months of imprisonment. On appeal, he argued that the district court should have suppressed the evidence against him because (1) the police lacked probable cause to seize his laptop computer without a warrant; (2) the delay between seizure of his laptop and the issuance of a federal warrant to search the computer was unreasonable; and (3) no probable cause existed to support issuance of the federal warrant to search the laptop.The panel rejected all three arguments. First, probable cause existed to seize the laptop because a police officer had "viewed the Sample Pictures folder" on the computer, which contained a "lascivious" image.Second, though the government's delay in seeking the federal search warrant was "quite lengthy," it was not constitutionally unreasonable because the delay resulted from error rather than lack of diligence, the defendant had a "diminished" possessory interest in the computer, and the government had a "strong interest" in retaining the laptop.Finally, the Court rejected the defendant's claim that the federal search warrant was not based on probable cause. The affidavit in support of the warrant noted, among other things, that witnesses reported seeing titles of files on the defendant's computer indicating that the files contained sexually explicit images of children. Accordingly, officials had probable cause to believe that the defendant's laptop contained child pornography.
Search and Seizure of Laptop Computer Did Not Violate Fourth Amendment
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Traffic congestion at York Exchange in Idaho Falls
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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Idaho State Police
District 6 1540 Foote Dr.
Idaho Falls, Idaho 83402-1828
(208) 525-7377 FAX: (208) 525-7294
For Immediate Release: 11/26/13 9:30 a.m.
Please direct questions to the District Office
The Idaho State Police is currently investigating a two-vehicle injury crash at the intersection of U.S. Highway 91 and 65th South, the York Exchange. The intersection is partially blocked due to the crash. Motorists are encouraged to avoid the area if possible. More information will be released when it is available.
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Distric Court Committed No Plain Error in Setting Plea Deadline for "Acceptance Points" or Imposing Restitution Beyond Amount in Plea Agreement
United States v. Doyle, No. 11-5265-cr (2d Cir. Nov. 26, 2013) (Kearse, Jacobs, and Straub) (summary order), available hereDoyle pled guilty to wire fraud and was sentenced to 72 months of imprisonment and $880,000 in restitution. On appeal, he argued that the district judge violated Fed. R. Crim. P. 11(c)(1) by participating in plea discussions. He noted that the court warned him that there would be a deadline for "acceptance of responsibility points" and that, if he intended to plead guilty, he should do so "before June 21" so that the could receive the extra third point for acceptance of responsibility. The panel found no reversible plain error because the defendant could not show that, but for the alleged remarks, he would not have pled guilty. The Court noted that the defendant pled guilty nearly three weeks after the announced June 21 "deadline" and had not shown a reasonable probability that he would have gone to trial but for the challenged comments.The panel also found no reversible error in the government seeking, and the district court ordering, $880,000 in restitution even though the plea agreement indicated only $105,000 in restitution. The Court noted that the plea agreement stated a forfeiture amount of $880,000, and that, in raising the restitution figure to match the forfeiture amount, the district court made clear that the defendant's combined financial obligation under the forfeiture and restitution orders was capped at $880,000, a forfeiture amount the defendant did not challenge. Accordingly, the district court merely chose to channel the $880,000 the defendant owed to the government to the victim. "Changing to whom he owed it did not affect Doyle's substantial rights or the fairness of the proceeding."
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The Best Law Quotes From Movies That You'll Never Forget
Lawyers - we're everywhere, including in a number of classic and soon-to-be classic movies. Some of my favorite movies have given birth to great quotes. These are lines you can repeat to other people, lawyer or not, and have them get what you're talking about. If you haven't seen some of these movies, I recommend you stream or borrow them as soon as possible.
To Kill a Mockingbird
There are so many great things about the 1962 film version of To Kill a Mockingbird, including this quote from attorney Atticus Finch: "You never really understand a person . . . until you consider things from his point of view." Finch is talking to Scout, his young daughter, but I think it sums up the theme of the movie perfectly.
A Few Good Men
When I mention the movie A Few Good Men to people, they automatically think of that famous courtroom scene with Jack Nicholson, in which he hollers "you can't handle the truth" at Lt. Kaffee, played by Tom Cruise. But my favorite quote from the movie is actually full of humor and shows that even in serious times, lawyers have a sense of humor. Before a court appearance, Lt. Kaffee says "don't wear the perfume in court, it wrecks my concentration," to which Demi Moore's character, Lt. Cmdr Galloway replies, "really?" Kaffee is quick to correct himself, stating that he was talking about their assistant, Sam.
My Cousin Vinny
My Cousin Vinny, the 1992 movie about a newbie lawyer who needed to take the bar exam six times before passing it, makes me laugh. My favorite quote from the film is Vinny's opening statement in the courtroom: "Uh. . . everything that guy just said is bull****. Thank you." If only opening arguments could be that easy.
A Civil Action
In the film A Civil Action attorney Jan Schlichtmann, played by John Travolta, gives us this bit of bleak information: "The odds of a plaintiff's lawyer winning in civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better than winning a case at trial. 12 times better." The film is based on a true story, and Travolta's quote beautifully sums up the frustrations felt by the attorneys fighting for the rights of families during the trial.
Legally Blonde
Sure, some lawyers took offense at the way the Reese Witherspoon flick Legally Blonde portrayed law students as super serious and boring, but I thought the film was all in good fun. Although some of the legal arguments used by Witherspoon's Elle Woods are over-the-top and probably wouldn't work in the real court of law, on film the arguments are downright hilarious, such as her questioning of a witness that leads to the revelation of the real killer: "Exactly. Because isn't the first cardinal rule of perm maintenance that you're forbidden to wet your hair for at least 24 hours after getting a perm at the risk of deactivating the ammonium thioglycolate?"
The People vs. Larry Flint
As a lawyer, you don't always have to agree with your client. Instead, it's your job to protect their rights and defend them. In The People vs. Larry Flint, a film about the Hustler magazine publisher's battle for free speech, Flint's lawyer, Alan Isaacman, states plainly: "I'm not trying to convince you to like what Larry Flynt does. I don't like what Larry Flynt does." The quote hits the nail on the head. We don't have to like what our clients do or might have done, but we have to defend them.
Erin Brockovich
Erin Brockovich, starring Julia Roberts as the title character, is another based-on-a-true story law movie. In it, Brockovich is hired by an attorney, Ed Masey, after losing a personal injury lawsuit. She then plays a major role in winning a large sum in a lawsuit against an electric company that polluted the town's water supply.
Throughout the film, the plucky Brockovich clashes with Masey, until the end when the two are happy to have won. Masey hands her a huge check and says, "Do they teach beauty queens to apologize? Because you suck at it!" His quote is reference to a question she asked him earlier: "do they teach lawyers to apologize? Because you suck at it!"
Inherit the Wind
The 1960 movie Inherit the Wind is one of the greats. Not just a great courtroom movie, but also a great film that explores the divide between religious belief and science. The themes of the movie are still relevant today. My favorite quote from it is "the Bible is a book. It's a good book, but it is not the only book." I think it sums up the way people tend to limit their thinking, often with negative effects.
Witness for the Prosecution
A film directed by Billy Wilder and written by Agatha Christie? Really, what more could you ask for? "Witness for the Prosecution" is full of intrigue and secrets. My favorite line from the film is spoken by Barrister Sir Wilfrid Robarts, the attorney for the accused. After his client is found not guilty, he states "We've disposed of the gallows, but there's still that banana peel somewhere."
Philadelphia
Yet another legal movie based on a real story (are you noticing a theme?), Philadelphia is the story of a gay man with AIDS who is fired by his law firm, out of fear that he'll spread the disease to others in the firm. Andrew Beckett, the attorney with AIDs, is turned down by nine attorneys before finding Joe Miller, the one lawyer who will defend him. Beckett asks Miller, "what do you call a thousand lawyers chained together at the bottom of the ocean? . . . A good start."
The Verdict
The late, great Paul Newman stars in The Verdict as an alcoholic lawyer given a case that he sees as his last chance. He's about to agree to settle when he realizes going to court would be the right thing to do for his client and his career. My favorite quote from the movie comes as Newman's character, Frank Galvin, is giving his final speech to the jury: "if we are to have faith in justice, we need only to believe in ourselves. And ACT with justice. See, I believe there is justice in our hearts."
The Client
The Client isn't based on a true story, but rather on a novel by lawyer turned writer John Grisham. 11-year-old Mark Sway witnesses the suicide of a mob attorney, after the attorney reveals some secret details to Sway. Sway hires Reggie Love, a lawyer to defend and protect him. In her negotiations with the US attorney, played by Tommy Lee Jones, Love, played by Susan Sarandon, asks to put Sway and his mother in Witness Protection, "with a fair income, and a nice little house. White, with a walk-in closet." It's a quote that sees a lawyer getting exactly what her clients need and want.
The Firm
The Firm is another movie based on a Grisham novel. In the movie and book, Mitch McDeere takes his first job as an attorney at a law firm that is more than it seems. One of the best lines in the film is spoken by Mitch to his brother, Ray, who happens to be in jail: "Hey Ray, wouldn't it be funny if I went to Harvard, you went to Jail and we both ended up surrounded by crooks."
A Man for All Seasons
A Man for All Seasons is a historical movie about Sir Thomas More, the chancellor in England who stood against Henry VIII when the king wanted to annul his marriage to Catherine of Aragon. In defense of his position, More tells the Duke of Norfolk, "And when we die, and you are sent to heaven for doing your conscience, and I am sent to hell for not doing mine, will you come with me, for fellowship?"
Chicago
It's not every day that a lawyer gets to do a complete song and dance routine in the courtroom. In the movie version of the musical Chicago, lawyer Billy Flynn, played by Richard Gere, gets to do just that. In his song, Flynn sings "Give 'em a show that's so splendiferous, row after row will grow vociferous," accurately summing up the way celebrity trials tend to lose focus on the actual law, instead focusing on the spectacle of the matter.
What are you favorite quotes from legal movies?
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HuffPo: Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit 'Radicalizers'
HuffPo: Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit 'Radicalizers' by Glenn Greenwald, Ryan Gallagher, and Ryan Grim (link won't imbed:
http://www.huffingtonpost.com/2013/11/26/nsa-porn-muslims_n_4346128.html):
[...] Read more!
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Black Friday Safety Tips for Michigan Shoppers
Black Friday is an exciting and much-anticipated day for Michigan shoppers who cannot wait to get their hands on those great deals that only roll around once each year. If you have been through it before, you know how frenzied it can be; people lined up outside the door, even around the block to make sure they get their hands on those unbelievable bargains. It can be fun, exciting, even stressful if you don't really enjoy the crowded atmosphere - but it can also be dangerous.
Unfortunately, Black Friday is the day many thieves and pick pockets choose as their best opportunity of the year to make a few "hauls" of their own. Here are a few tips to help ensure both yourself and your purchases make it safely home on Black Friday 2013:
Take steps to ensure you're not the victim of a pickpocket. Wear your purse across your body so it cannot be easily removed, or better yet, leave it at home. Considering carrying your wallet in a pants pocket or inside coat pocket.
Don't purchase more than you can carry. If you intend to buy out the store, take a friend or family member along who can help you carry your purchases to the car, or ask an employee for help.
Park as close as possible to the entrance of the store; at night, park under a light if possible. Always have your keys in your hand when walking to or from your car.
Before entering your car, take a close look around it and peer inside (particularly the back seat) before getting in.
Never place your purchases where they are visible through the windows of your vehicle, such as in the back seat. Put them inside the trunk for safe keeping.
Be safe at the check-out by leaving your credit card or checkbook in your purse/wallet until the cashier asks for it. Would-be criminals would like nothing better than to look over your shoulder and get account information!
Make sure your cell phone is fully charged, turned on, and easily accessible. Keep it close to your body so that if you're in a noisy crowd you can feel it vibrate. If shopping with a group of people who will meet up later, make sure everyone has all of the others' phone numbers programmed into their phones.
Decide on a specific place to meet at a designated time if shopping with a group.
Shopping online this Black Friday? You still need to be safe. Shop only with companies you trust and have dealt with before. Save all of the receipts for items you purchase online by printing them out and keeping them together in a file folder. Instead of using your regular credit/debit card, consider a disposable credit card or money order instead.
Black Friday is the biggest day of the year for getting your hands on those unbelievable bargains and Christmas gifts, but be cautious!
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WaPo: Microsoft, suspecting NSA spying, to ramp up efforts to encrypt its Internet traffic
WaPo: Microsoft, suspecting NSA spying, to ramp up efforts to encrypt its Internet traffic by Craig Timberg, Barton Gellman, and Ashkan Soltani:
[...] Read more!
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Fran Keller released based on refuted junk science
Jordan Smith at the Austin Chronicle reports on another case where Texas' new junk-science writ has been used to free a defendant - this time Fran Keller, accused of abusing kids via satanic rituals at an Austin daycare - who was convicted based on false forensic science testimony. Reported Smith:That [emergency room Dr. Michael] Mouw provided false medical testimony for the state at the 1992 trial was among the claims included in an exhaustive appeal filed on Fran Keller's behalf in January by Austin defense attorney Keith Hampton. A hearing on the issue was held in district court in August, leading Travis County District Attorney Rosemary Lehmberg earlier this month to agree with Hampton that Keller received an unfair trial, Hampton said. (An appeal raising the same claims was filed last week for Dan, and the agreed findings related to Mouw's testimony are also applicable to Dan.) The agreed findings have not yet been officially filed, Hampton said, because he was waiting for Lehmberg to sign a second copy that will be filed under Dan's name. In short, the state has agreed that the medical testimony presented at the Kellers' trial was false, was material, and likely affected the outcome of the Kellers' trial. As such, its inclusion violated their right to due process. In a press release late Tuesday afternoon, Lehmberg said that she agreed to the relief because of the "crucial nature" of Mouw's testimony, and the "reasonable likelihood that his false testimony affected the judgment of the jury and violated Frances Keller's right to a fair trial."The fact that Lehmberg and Hampton have agreed to that finding, and to the fact that the Kellers conviction should be overturned, triggers a provision of state law that allows a district judge to grant a personal bond to release them from prison while the appeal continues to move through the process. The agreed findings will be forwarded to the Court of Criminal Appeals for final approval; once that happens, the case will be kicked back to Lehmberg to decide whether to retry the case. As in the case of the San Antonio Four, prosecutors won't agree to Keller's actual innocence claim but have agreed to a new trial which, assuming the Court of Criminal Appeals signs off on her writ, will almost certainly never occur. (It's a rare prosecutor indeed who's willing to admit mistakes in such cases.) The main witness in the case, who was three at the time she was allegedly abused and four when the Kellers were convicted, was not a very credible witness and it was the forensic testimony that secured the conviction. At first, she accused the Kellers only of spanking her. But then, reported Smith:With a bit of pressing, first by her mother and then by therapist Donna David Campbell, that initial allegation soon morphed, first into an allegation of sexual abuse and then, by the fall, into far more fantastic allegations – including that the Kellers took [her] and other children on plane rides to Mexico where they were abused by various individuals, that Fran cut off the arm of a gorilla at Zilker Park, that the Kellers performed a satanic bone-replacing ritual on one child, and that the Kellers forced the children to watch them sacrifice babies and small animals. Ultimately, Campbell concluded that [she] was a victim of "ritual abuse."No way Rosemary Lehmberg will take the case back to court based solely on that sort of garbage testimony. Noted Smith, "The Kellers were among hundreds of child-care workers across the nation who, in the Eighties and Nineties, were accused of being part of a network of satan worshippers who abused children taken to daycare."Keller's husband, "Dan, who will turn 72 in prison on Friday, is slated to be returned to Travis County and finally released in early December," Smith reported.MORE: From the Austin Statesman.
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Eleventh Circuit Upholds Verdict Reached Without Defendant Present at Trial – U.S. v. Sterling
Criminal defendants have a right to be present at their own trials. This is part of everyone’s Sixth Amendment rights, and it’s an important part of our country’s guarantee of a free and fair trial. In U.S. v. Sterling, defendant Ronn Sterling argued that his right to be present at his trial was violated when the judge removed him from the courtroom, citing repeated outbursts that may be connected to the “sovereign citizens” movement. After Sterling was convicted of bank robbery, possession of firearm by a felon and use of a firearm during a robbery, he asked the Eleventh U.S. Circuit Court of Appeals to overturn the convictions. He and an alleged accomplice, Cornell Brumfield, also argued that evidence of their prior convictions was not admissible. The Eleventh U.S. Circuit Court of Appeals rejected both arguments, saying Sterling voluntarily waived his right to be present.
Sterling was accused of robbing a bank at gunpoint; Brumfield allegedly drove the getaway car. Both men had prior convictions stemming from the same 1995 bank robbery in Oklahoma; evidence of these was admitted over their objections. Sterling participated in the pretrial hearing but refused to have anything to do with the trial; he agreed to speak to the judge in an interview room. There, the judge explained that Sterling had a right to be present but would be removed as disruptive if he kept interrupting. Sterling continued to say “I do not understand what’s going on. I do not accept no offers of the court,” causing the judge to remove him and deem him to have waived his right to be present. Sterling watched via live video feed but “remained non-responsive” and wouldn’t testify. They were found guilty in the end; Sterling got 562 months in prison and Brumfield got 363. The court denied Sterling’s motion for a new trial based on his removal from the courtroom. Both men appealed.
The Eleventh Circuit started by noting that Rule 43 of the Federal Rules of Criminal Procedure permits defendants to waive their right to be present after an initial appearance. Past decisions establish that the initial appearance can be at jury selection, before the trial has truly begun, the court said. The Eleventh also found that Sterling’s waiver of his right to be at trial was “voluntary” because he was repeatedly informed of the consequences of his repeated inappropriate remarks. The record shows that Sterling appeared to understand what was going on, the court said, and that he refused to respond to the court. Thus, the Eleventh concluded, Sterling “constructively waived” his right to be present. Indeed, Sterling repeatedly said he wanted no part of the trial. The court also ruled that both men’s prior convictions were properly included as evidence, saying the evidence’s probative value outweighed any prejudicial effect.
Whether a criminal defendant like Sterling waives his rights by being disruptive is an interesting and important issue. “Disruptive” is in the eye of the beholder, which means judges could abuse their power by deciding someone they don’t happen to like the looks of is disruptive. Waiving one’s constitutional right to be at trial must be voluntary, as the Eleventh pointed out—but Sterling would probably not agree that his “waiver” was voluntary. This is one reason why having an experienced attorney (and listening to that attorney’s advice) is so important. Even for defendants who don’t believe the court is legitimate, there’s value in working with someone who understands and knows how to use the system—because as Sterling’s sentence shows, criminal charges can land you in prison for decades.
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Drunk Driver Blamed for Death of Elderly Man in Breakdown Lane
In a recent Reading drunk driving accident, a 71-year-old man was killed while stopped in the breakdown lane of Route 95 North. According to CBS Boston, a 32-year-old driver from Brockton faces charges of vehicular homicide.
Accident reports indicate that it is unclear why the elderly man was stopped in the breakdown lane. But he was struck by the intoxicated driver. The female driver was reportedly on her way home from work when the accident happened, but was unable to explain why she was in the northbound lane if she was heading back to Brockton. Although she claimed only to have had one beer, she failed a number of sobriety tests, according to auhtorities. She was held on $10,000 cash bail.
In the state of Massachusetts, there were close to 115 people killed in alcohol-related traffic accidents in 2011. These accidents accounted for about 40 percent of the total number of traffic accident fatalities throughout the year. More than 15 percent of these accidents involved drivers who had a BAC of .15 of higher, which is about twice the legal limit.
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Ohio Supreme Court: Confrontation Clause Does Not Require An Expert To Testify When Defendant Stipulates To Report
The Ohio Supreme Court has held that When a defendant has stipulated to the admissibility and content of a nontestifying analyst’s scientific report, the testimony of a witness who relied on that report does not violate the defendant’s right to confrontation. The case is State v. Keck, Slip Opinion No. 2013-Ohio-5160.] In 2009 the defendant […]
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O.J. Simpson Loses Bid for New Trial
A Las Vegas judge has denied O.J. Simpson's bid for a new trial. Lawyers for Simpson argued at a hearing held months ago that his trial counsel was ineffective and had a conflict of interest. From the opinion:
“Mr. Simpson failed to...
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New Jersey DWI Defense Update: More Sobriety Checkpoints Expected across the Garden State
Any time a driver is pulled over by the police, the episode can certainly be an unsettling and even an intimidating experience to the individual behind the wheel. The mere presence of a patrolman at one's driver's side window can result in a person looking nervous and perhaps even acting out of character. Becoming flustered in front of a law enforcement officer, especially for the average law-abiding citizen, is not unheard of.
Because the typical driver has on only rare occasions the chance to interaction with an authority figure such as a municipal cop or state trooper, there can be a range of potential explanations for why a driver appears to be anxious, confused or disturbed during a traffic stop; espesically one that may be rapidly turning into a potential drunken driving stop. As DWI-DUI defense attorneys, we know that certain mannerisms coupled with other, so-called evidence of alcohol consumption can easily lead to a DWI arrest.
As New Jersey drunk driving attorneys and experienced trial lawyers, my colleagues and I know just how quickly things can go south for an individual who may have had a drink or two before heading home from a restaurant or friend's home. Once stopped for a traffic violation, a driver may find himself accused of driving under the influence of beer, wine or hard liquor, or occasionally drug DUI if that individual is taking doctor-prescribed medications that may have interacted unexpectedly with each other.
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Do Not Take Advice from Prosecutor
I always thought it was self-explanatory, but do NOT take advice from the prosecutor. Video Transcription Hello, my name is Andrew Flusche. I’m a Virginia misdemeanor and traffic lawyer. One question that comes up when I’m speaking with potential clients sometimes and they’re thinking about going to court themselves, is they’re thinking about whether or […]
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"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"
The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract: Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices...
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Attorney Convicted of Mortgage Fraud Involving 13 Fraudulent Transactions
Charles R. Sammon, 37, West Pittston, Pennsylvania, formerly an attorney practicing in Boston, Massachusetts, was convicted of mortgage fraud. The defendant pleaded guilty before U.S. District Judge Richard G. Stearns to 13 counts of wire fraud, mail fraud and money laundering, all in connection with the mortgage fraud scheme that occurred in 2006 and 2007. […]
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Extra DUI Patrols In Store For Thanksgiving Weekend
The Minnesota State Patrol announced that police will be out in greater force over Thanksgiving break as the holiday is one of the deadliest weekends for drunk driving accidents. According to the Department of Traffic Safety, the extra DUI patrols will begin Wednesday evening and last through Sunday night. The night before Thanksgiving is often […]The post Extra DUI Patrols In Store For Thanksgiving Weekend appeared first on The Appelman Law Firm Law Blog
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Husband and Wife Plead Guilty to Short Sale Fraud
Cynthia Hosbrook, 41, and Robert Hosbrook, 52, both of Henderson, Nevada, a husband and wife who worked as real estate agents in southern Nevada, have pleaded guilty to bank fraud charges in connection with several residential short sale transactions that resulted in over $350,000 in losses to Wells Fargo and Freddie Mac. The defendants pleaded […]
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Thanksgiving OVI Checkpoints in the Miami Valley
There will be multiple Thanksgiving OVI checkpoints tonight throughout the Miami Valley. Stay tuned to this post and to our Facebook page as it will be continuously updated throughout the day. Here is what we have so far:
Montgomery County: An OVI checkpoint will be operating in Harrison Twp. on Wednesday from 7 to 11 p.m.
Clark County: An OVI checkpoint will take place on Wednesday in Clark County
Miami Valley: Throughout the Miami Valley, along I-75, [Read the full post. . .]
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DC Hit and Run Laws: What you should know.
In August of 2012, the District of Columbia City Council amended the city’s drunk driving laws to include increased maximum penalties, increased mandatory minimums, and a whole host of other changes. One important change that’s not talked about a lot is the change to the city’s hit and run laws. Most people think if you […]
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