Issue summaries are from ScotusBlog, which also links to papers: Monday U.S. v. Davila: Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1),...
Next week's criminal law/procedure arguments
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NY U.S. Attorney and John Yoo Banned From Russia
Russia has responded to the U.S. issuing a list of sanctioned Russians yesterday by putting out its own list of U.S. officials engaged in human rights violations.
The list includes Bush torture memo author John Yoo and Dick Cheney's former...
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Massachusetts Marijuana Drug Arrests Waste Police & Court Resources
As a Boston, Massachusetts drug crimes lawyer, I believe quite strongly that the Massachusetts court system, and our Massachusetts law enforcement operations, waste their time and resources when it comes to making arrests over the possession of marijuana. In my professional opinion, marijuana is a harmless drug that’s non-addictive – and yet, the court system, and law enforcement, continue to pursue Massachusetts marijuana drug arrests, a “Class D” substance, as though it were a “Class A” substance such as heroin or morphine, or a “Class B” substance such as cocaine, LSD, PCP, or Ecstasy.
In the latest example of this, consider this following story from FOX25 in Boston.
This past Friday, April 12, in Everett, Mass., a 28-year-old Arizona man was arrested after police discovered more than 2,000 pounds of marijuana inside his rented truck. Police offers charged Mr. Luis Barrios, of Tuscon, Arizona, with Massachusetts marijuana trafficking, as well as the crime of operating a motor vehicle without authority. According to police reports, after being stopped, Mr. Barrios showed difficulty in locating his motor vehicle registration, as well as the signed rental agreement for the Ryder truck he was sitting in, and driving. A K-9 team was also used to determine the presence of drugs in the Ryder truck. Mr. Barrios will be arraigned next week, and will undoubtedly, require the services of a Boston marijuana arrest lawyer.
But is where I roll my eyes. I don't care how much pot was discovered in this truck: 2 pounds or 2,000 pounds. This is NOT an addictive, or "destructive" substance (bearing in mind that any substance can technically be "destructive" - even water.) Why do we waste the time and resources of police and the courts, on something that is dozens of times less harmful than alcohol, which anyone over the age of 21 can legally buy and consume, anywhere? This is a MASSIVE waste of public money and resources.
Massachusetts courts are overcrowded enough, without wasting more time and resources prosecuting people for possession of a harmless drug such as pot. I believe marijuana should be legalized, regulated and taxed, just like alcohol and cigarettes. In fact, the failure of our laws to do just that – legalize marijuana – only serves to spawn a thriving black market for marijuana. Black markets are what create drug rings - period. If the government outlawed milk today, crime rings would spring up tomorrow to control it, price it, smuggle it and profit from it. Marijuana itself isn't harmful - but its prohibition IS, because that's what creates crime. Our government - federal and too many of the states - learned nothing from 1930's prohibition of alcohol, and Al Capone.
Study after study, report after report, has concluded that marijuana is essentially a harmless drug that should be legalized, regulated, and taxed. The most recent? A highly authoritative report on why marijuana should be legalized in the USA, endorsed by 500 top economists such as Milton Friedman. This report, like so many others on this subject, is stunning. The statistics within it show that legalizing marijuana with resulting regulation and taxation could save an estimated $7.7 billion annually in federal and state spending on enforcement of marijuana prohibition. This authoritative economic report states that if marijuana were to be subject to taxes, like other consumer products, it could probably generate tax revenues of $2.4 billion per year. Furthermore, the economists endorsing the report believe that if marijuana were taxed in the same way as are tobacco and alcohol, the taxes could result in as much as $6.2 billion per year.
But don't tell that to government. They're too busy with their heads somewhere they can't be seen. Are you listening, President Obama? Because a lot of the states are talking, and very loudly.
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***UPDATE*** I86 is now opne ***Multiple vehicle pile up on Interstate 86
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
---------------------------------------------------------------------------
Idaho State Police
District 5 5205 South 5th Ave.
Pocatello, Idaho 83204-2299
(208) 236-6466 FAX: (208) 236-6068
For Immediate Release: April 13, 2013 at 4:29 pm
***Update***
East and west Interstate 86 is now open to all traffic.
***Update***
At this time, traffic is completely blocked from milepost 49 to 61 on the eastbound and westbound sides of Interstate 86 and will not be diverted due to the lack of visibility on side roads.
***End of Update***
Idaho State Police is currently on location of a multiple vehicle crash on Interstate 86, west of Pocatello, between mileposts 51 and 52. Eastbound and westbound lanes of travel are currently blocked. Due to blowing dust, there is zero visibility in the area. Traffic is being diverted from Rainbow Rd, Exit 49, to the Chubbuck exit, Exit 61. All motorists are requested to avoid the area at this time. Updates will be released as they become available.
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M.D.Tenn.: Even the allegedly delusional can consent to a search
Defendant’s allegedly being delusional did not prevent him from being able to grant effective consent. He seemed perfectly fine when he was talking to the officers about his child pornography collection which he then consented to a search of. United States v. Smith, 2013 U.S. Dist. LEXIS 51841 (M.D. Tenn. April 10, 2013):
[...] Read more!
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N.D.W.Va.: Smell of meth lab during a knock-and-talk justified entry
Three officers went to defendant’s mobile home for a knock-and-talk about his overpurchase of pseudoephedrine. Three went because they suspected a meth lab and they didn’t know what to expect. One officer went to the rear and called the others on the cell phone. When the knock and talk occurred, he could see scrambling inside hiding stuff in the kitchen. The unmistakable smell of the meth lab was exigency. [The court doesn’t mention the potential violation of curtilage, but it didn’t seem to matter anyway. They had exigency no matter what.] United States v. Richardson, 2013 U.S. Dist. LEXIS 52349 (N.D. W.Va. April 11, 2013).
Defendant was on supervised release, and he posted a naked picture of himself online portraying in a Santa hat. Five POs, local deputies, and a forensic examiner did a warrantless “parole search” (supervised release, actually) of his place and found pictures on his phone. The PO had reason to conduct the search, and it wasn’t arbitrary. United States v. Hilton, 2013 U.S. Dist. LEXIS 51777 (E.D. Mich. April 10, 2013).*
The consent to search here was limited to entering to retrieve a .410 shotgun. The officer also seized a 20 gauge shotgun, and that violated the terms of the consent and was not otherwise justified. United States v. Gillotti, 2013 U.S. Dist. LEXIS 52402 (D. Me. March 21, 2013).*
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CA7: Defendant not seized when he ignored officer rapping on window
Defendant was not seized when the officer rapped on the window to get defendant to roll it down and defendant ignored him and tried to dispose of evidence. United States v. Brissey, 2013 U.S. App. LEXIS 7322 (7th Cir. April 11, 2013):
[...] Read more!
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CA6: It is clearly established that gratuitous violence can't be used on arrestees; this one died
It was clearly established law that officers could not use gratuitous violence against a mentally unstable unarmed arrestee. Martin v. City of Broadview Heights, 2013 U.S. App. LEXIS 7094, 2013 FED App. 0101P (6th Cir. April 9, 2013):
[...] Read more!
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D.Minn.: Hospital's consent form was all that was shown; consent to blood draw voluntary
Defendant was charged with vehicle manslaughter under federal law. His blood and urine were tested at a hospital based on the hospital’s consent form. There’s nothing that indicates that the consent was not voluntary. United States v. Johnson, 2013 U.S. Dist. LEXIS 52078 (D. Minn. March 7, 2013).* (The blood and urine were sought by the police, so this is not a private search issue.)
“While it is a close call, considering the factors in combination, I FIND Officer Duggan had an articulable and reasonable suspicion that criminal activity was afoot to warrant a brief investigation by deploying the readily-available [drug dog] Red.” United States v. Winters, 2013 U.S. Dist. LEXIS 52374 (E.D. Tenn. January 22, 2013).*
The encounter was consensual, not requiring reasonable suspicion, and reasonable suspicion developed during the encounter. United States v. Senator, 2013 U.S. Dist. LEXIS 52689 (D. Ore. April 11, 2013).*
The driver’s nervousness and not inconsistent versions of travel plans was reasonable suspicion for getting the drug dog out. United States v. Winters, 2013 U.S. Dist. LEXIS 52374 (E.D. Tenn. January 22, 2013).*
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Strafverteidiger will im Fall Peggy Antrag auf Wiederaufnahme stellen
Ein geistig behinderter Angeklagter gestand ein seit 2001 vermisstes Mädchen getötet zu haben. Obwohl er das Geständnis später widerrief, wurde er vom Landgericht Hof im Jahr 2004 wegen Mordes zu lebenslanger Freiheitsstrafe verurteilt. Nach Überzeugung des Gerichts soll der Angeklagte mit dem Mord versucht haben, einen zuvor begangenen sexuellen Missbrauch an dem 9-jährigen Mädchen . . . → Read More: Strafverteidiger will im Fall Peggy Antrag auf Wiederaufnahme stellen
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TX: Exigency of destruction of evidence no long assumed from smell of MJ during knock-and-talk
Texas Court of Criminal Appeals refuses to assume exigency that the occupant will destroy marijuana just because an officer smelled it during a knock and talk. Turrubiate v. State, 2013 Tex. Crim. App. LEXIS 635 (April 10, 2013) (dissent here):
[...] Read more!
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***UPDATE***Multiple vehicle pile up on Interstate 86
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
---------------------------------------------------------------------------
Idaho State Police
District 5 5205 South 5th Ave.
Pocatello, Idaho 83204-2299
(208) 236-6466 FAX: (208) 236-6068
For Immediate Release: April 14, 2013 at 3:38 a.m.
***Update***
On April 13, 2013, at approximately 4:00 p.m., Idaho State Police investigated multiples crashes on Interstate 86, at milepost 50, west of Pocatello, ID. Due to blowing dust, visibility was at zero to near zero conditions. Vehicles piled up in both the eastbound and westbound lanes of travel. Injured subjects were transported by ground ambulance to either Portneuf Medical Center in Pocatello, ID., or Harms Memorial Hospital in American Falls, ID.
At this time, names and vehicle information is still being gathered. When complete information is available, a full media release will be issued.
***Update***
East and west Interstate 86 is now open to all traffic.
***Update***
At this time, traffic is completely blocked from milepost 49 to 61 on the eastbound and westbound sides of Interstate 86 and will not be diverted due to the lack of visibility on side roads.
***End of Update***
Idaho State Police is currently on location of a multiple vehicle crash on Interstate 86, west of Pocatello, between mileposts 51 and 52. Eastbound and westbound lanes of travel are currently blocked. Due to blowing dust, there is zero visibility in the area. Traffic is being diverted from Rainbow Rd, Exit 49, to the Chubbuck exit, Exit 61. All motorists are requested to avoid the area at this time. Updates will be released as they become available.
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wired.com: Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight
wired.com: Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight by Kim Zetter:
[...] Read more!
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Should Silence Convict
<font style="FONT-SIZE: 12px" face="Arial">The most common piece of advice given by criminal defense lawyers, even more than don't try this at home, is that you have the right to remain silent.
Use it. But in <a href="http://www.scotusblog.com/case-files/cases/salinas-v-texas/" target="">Salinas v. Texas</a>, scheduled for oral argument on April 17, 2013, the Supreme Court will
consider whether silence in response to police questioning can be offered as evidence of guilt. The Texas Court of Criminal Appeals held it could.<br>
<br>
...</font>
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Reinvent BigLaw Into, well, Us
<font style="FONT-SIZE: 12px" face="Arial">When I saw that Bruce McEwen of Adam Smith, Esq., had posted <a href="http://www.adamsmithesq.com/2013/04/reinvent-law-you-have-spoken/2/" target=
"">"Reinvent Law:" You have spoken</a>, I was ready to hate it. I was geared up to argue why it was more nonsense, more of the same old new normal future of the law fluffery that's been
the darling of the game-changers. I was stoked.<br>
<br>
Except that in reading Bruce's post, I realized that he made a critical distinction ...</font>
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Top-Ten Recent SSRN Downloads
in criminal law and procedure ejournals are here. The usual disclaimers apply. RankDownloadsPaper Title 1 3334 The Dangers of Surveillance Neil M. Richards, Washington University in Saint Louis - School of Law, Date posted to database: March 25, 2013 2...
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Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done
Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013): The drug kingpin is a familiar figure in movies and televisions shows about the drug trade. And in the movies, the kingpin is usually easy...
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Two Florida Men Accused of Stealing and Dumping ATM Machine
Kevin Bass of Davie, Florida and Gary Hrinda of Melrose, Florida are charged with one count of grand theft and another count of littering in a canal. The two men were caught stealing an ATM from a Pembroke Pines fair, then using the money inside to gamble some more at The Seminole Hard Rock Hotel and Casino in Hollywood, Florida. Witnesses saw the two men dropping the mangled ATM into a Davie canal, and tipped off police.
Jacksonville theft crimes from time to time involve some sort of innovation on the part of the suspect, and normally stealing the entire ATM itself is unheard of. However, many thieves throughout Florida that use an ATM at all during the process of the theft will remove and destroy the entire ATM in order to obtain, sometimes, little cash at all. To the detriment of the accused is that technology such as security cameras and random witness statements, can be used to keep up with the criminal’s new tricks. These advances help the State when attempting to find a perpetrator, as well as increase the evidence against the one should one be charged. ![imagesatmtheft.jpg]()
There are many different types of crimes that involve use of an ATM in a theft crime, including stealing information used in ATM machines such as debit card information, breaking into the machine and taking the cash, or stealing the ATM machine itself. Because ATM's are part of the banking system, the federal government will usually take jurisdiction of the matter and prosecute the case in federal court. However, similar Florida state charges may be filed as well.
A very common crime with the increase in technology that is available to thieves and scammers is a practice called “skimming.” Skimming is not only limited to ATM machines, but may be used in practice to obtain any credit card or debit card information typed in or swiped into an computer system. In cases of skimming, the accused has allegedly attached a small machine that resembles a card reader into an ATM or vending machine. The thief may then read and store the information that is contained within the card, including one’s PIN. With this information, the accused may either proceed with normal identity theft actions, such as buying items online, emptying one’s accounts, or making a duplicate, or "clone," of the card.
Another very common crime that may end up in one being falsely accused of check fraud in one’s own bank account is ATM Deposit Fraud. This type of ATM related-theft charge targets the bank and the victim. Many banks will credit a bank account a certain dollar ($) amount pending approval of the check, depending on the type of account. Many times, the accused will have opened sometimes multiple accounts at a bank either under a completely fictious name or a known victim’s name, making fraudulent transactions with the back, including fake cash, forged or otherwise false checks that take sometimes two or three days to process, particularly on weekends or holidays. Once deposited, the suspect will make a withdrawal based on the deposited checks with the knowledge that the check is invalid.
Sometimes, thieves think that dealing with a bank account is too difficult, and, using either a truck or other heavy vehicle, will tear the ATM out of the ground or wall of banks, supermarkets, and sometimes, stand-alone ATM’s in local parking lots. In this case, one must steal the ATM machine itself or breaking into the machine to remove cash and other deposits. One cannot be charged with stealing the ATM machine if it does not actually move or has its contents removed.
Many times, when stealing ATMs, people think that they cannot be found because they themselves were not on camera. However, the State, as well as the Jacksonville police, will attempt to show through video footage as well as image enhancement software, the possible license plate numbers of the vehicle in order to yield positive results as to the actual offender. However, the improbability of finding proper conclusive evidence to convict someone of such a crime is difficult and limited, and is simply not conclusive to prove that someone committed a crime such as robbery of an ATM.
Many times, when suspected of a crime, the State or police may attempt to distill fear or coerce identifying testimony that will be used to convict one of a crime. However, one should not speak to the police or anyone else. The only person that one should confide anything in is one’s experienced Jacksonville theft crimes defense attorney, who will be fighting the case and making sure that the legal system does not make the accused the victim.
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There are many different types of crimes that involve use of an ATM in a theft crime, including stealing information used in ATM machines such as debit card information, breaking into the machine and taking the cash, or stealing the ATM machine itself. Because ATM's are part of the banking system, the federal government will usually take jurisdiction of the matter and prosecute the case in federal court. However, similar Florida state charges may be filed as well.
A very common crime with the increase in technology that is available to thieves and scammers is a practice called “skimming.” Skimming is not only limited to ATM machines, but may be used in practice to obtain any credit card or debit card information typed in or swiped into an computer system. In cases of skimming, the accused has allegedly attached a small machine that resembles a card reader into an ATM or vending machine. The thief may then read and store the information that is contained within the card, including one’s PIN. With this information, the accused may either proceed with normal identity theft actions, such as buying items online, emptying one’s accounts, or making a duplicate, or "clone," of the card.
Another very common crime that may end up in one being falsely accused of check fraud in one’s own bank account is ATM Deposit Fraud. This type of ATM related-theft charge targets the bank and the victim. Many banks will credit a bank account a certain dollar ($) amount pending approval of the check, depending on the type of account. Many times, the accused will have opened sometimes multiple accounts at a bank either under a completely fictious name or a known victim’s name, making fraudulent transactions with the back, including fake cash, forged or otherwise false checks that take sometimes two or three days to process, particularly on weekends or holidays. Once deposited, the suspect will make a withdrawal based on the deposited checks with the knowledge that the check is invalid.
Sometimes, thieves think that dealing with a bank account is too difficult, and, using either a truck or other heavy vehicle, will tear the ATM out of the ground or wall of banks, supermarkets, and sometimes, stand-alone ATM’s in local parking lots. In this case, one must steal the ATM machine itself or breaking into the machine to remove cash and other deposits. One cannot be charged with stealing the ATM machine if it does not actually move or has its contents removed.
Many times, when stealing ATMs, people think that they cannot be found because they themselves were not on camera. However, the State, as well as the Jacksonville police, will attempt to show through video footage as well as image enhancement software, the possible license plate numbers of the vehicle in order to yield positive results as to the actual offender. However, the improbability of finding proper conclusive evidence to convict someone of such a crime is difficult and limited, and is simply not conclusive to prove that someone committed a crime such as robbery of an ATM.
Many times, when suspected of a crime, the State or police may attempt to distill fear or coerce identifying testimony that will be used to convict one of a crime. However, one should not speak to the police or anyone else. The only person that one should confide anything in is one’s experienced Jacksonville theft crimes defense attorney, who will be fighting the case and making sure that the legal system does not make the accused the victim.
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Why Is My NYC Business Facing Enterprise Corruption Charges?
A New York City business owner who uses his or her company as a front for criminal activity or as a resource for laundering proceeds of criminal activity, can be charged with a number of offenses, including enterprise corruption and money laundering. Enterprise corruption is the New York State version of the federal RICO statute, [...]
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When Adoption Goes Awry
South Carolina couple Matt and Melanie Capobianco were over the moon when they adopted new-born baby Veronica in 2008. But their joy turned to grief, when at the age of three, Veronica was removed from their home and placed with her biological father, a person Veronica had never met, but whose ancestory trumped the Capobianco’s [...]![]()
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