As I watched the unfolding of events in Boston this past week, I have several thoughts on my mind. Two have been pre-eminent: I feel deeply for those who have suffered losses of life, and limb, which means those directly touched by the bombs’ effects. I fear deeply for those who have suffered a loss [...]
Life in a Post-Constitutional World
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Boston Bombing Developments: Saturday
Here's a thread to discuss continuing developments in the Boston Marathon Bombing case and Dzhokhar Tsarnaev. The Federal Defender in MA today said it expects its office to be appointed to be appointed.
What I've been reading: ...
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Shots Fired at Denver's 4/20 Marijuana Rally
The 4/20 marijuana celebration at Denver's Civic Center Park ended abruptly at around 4:40 pm when shots rang out and one or two people were injured. One appears to have been stabbed (photo here, name being withheld), so it's not clear if...
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"Effective Plea Bargaining Counsel"
The title of this post is the title of this new piece by Jenny Roberts now available via SSRN. Here is the abstract: Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon...
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"Legal Questions Riddle Boston Marathon Case
From the New York Times: The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of Sept. 11, including whether he should be read a Miranda warning, how...
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Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog, which also links to papers: Tuesday Sekhar v. U.S.: Whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the...
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Freispruch für Handwerker nach angeblicher Drohung
Ein Handwerker soll einer Kundin damit gedroht haben, ihr das Nasenbein zu brechen, sollte sie die Rechnung nicht bezahlen. Der 47-jährige Elektriker hatte zuvor mehrere Steckdosen in der Wohnung der Frau installiert. Der Angeklagte räumte zwar ein, dass er die Frau verbal anging, jedoch bestreitet er die Drohungen. Die 24-jährige Kundin gab zu, dass . . . → Read More: Freispruch für Handwerker nach angeblicher Drohung
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My Closing Keynote Address at Lawyernomics 2013
<font style="FONT-SIZE: 12px" face="arial">Frankly, I was quite surprised when <a href="http://www.avvo.com/about_avvo/boards_and_bios">Mark Britton</a>, Avvo's CEO, <a href=
"https://twitter.com/Mark_Britton/statuses/278274715326488576">asked me</a> to give the closing keynote address at this year's <a href=
"http://ignite.avvo.com/lawyernomics-conference.html">Lawyernomics</a> conference. The reception for <a href="http://blog.simplejustice.us/2012/05/05/my-talk-at-avvocating.aspx">my
presentation</a> at Avvo's last effort at a marketing conference, Avvocating, was luke warm, at least from Avvo's general counsel, <a href=
"http://blog.simplejustice.us/2012/05/05/my-talk-at-avvocating.aspx?ref=rss#comment-17101108">Josh King</a>. who thought it was a bit on the "screed" side. ...</font>
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Bad News for IANAL
<font style="FONT-SIZE: 12px" face="Arial">Over at <a href="http://www.popehat.com/2013/04/20/brave-new-world-miranda-roundup/" target="">Popehat</a>, Ken White provides a "Miranda round-up"
following the <a href=
"http://www.bostonglobe.com/metro/2013/04/19/bombing-suspect-attended-umass-dartmouth-prompting-school-closure-college-friend-shocked-charge-boston-marathon-bomber/8gbczia4qBiWMAP0SQhViO/story.html"
target="_blank">Dzhokhar Tsarnaev</a> deluge of all the posts and reports he found worthwhile. It barely scratches the surface, which comes as no surprise given the vast interest that
inevitably follows a news event of such epic proportions, but it's necessary to exercise discretion under these circumstances lest one's ...</font>
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N.D.Ga.: Franks motion requires an offer of proof
Defendant’s Franks motion requires there be a specific showing of what the misrepresentation is, and that means including the affidavit and how it’s a misrepresentation. It’s easy to make an allegation; the court requires more. United States v. Gutierrez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013) (“Defendant's Motion makes allegations, but the record does not include the warrant application or any investigative memoranda, testimony or other evidence showing a discrepancy.”)
Defendant’s stop was reasonably extended because defendant didn’t remember her address, she admitted travel that likely violated parole, and she didn’t have the paperwork on the car allegedly just rented. United States v. Cornelius, 2013 U.S. Dist. LEXIS 54693 (D. Ore. April 11, 2013).*
Defendant had standing to challenge the stop but loses because the stop was justified for a seat belt violation, despite the alleged ulterior motive. He doesn’t have standing to contest the search of the car. United States v. Davis, 2013 U.S. Dist. LEXIS 54513 (N.D. Ill. April 15, 2013).*
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NY2: NY recognizes limited right to counsel before consent to BAC test
Defendant was charged with manslaughter under the influence. His attorney showed up before the chemical test could be performed and the police failed to tell him. There is a limited right to counsel in this situation in New York, and it was constitutional error for the police to not tell the defendant the lawyer was there before the test. People v Washington, 2013 NY Slip Op 2600, 2013 N.Y. App. Div. LEXIS 2539 (2d Dept. April 17, 2013).*
The court first was inclined to grant the suppression motion based on a lack of probable cause, but thinking about it more, the court concludes the government adequately showed probable cause and preserved it, but it could have done a better job fleshing out the argument. United States v. Harris, 2013 U.S. Dist. LEXIS 56130 (N.D. Ind. April 18, 2013).*
The tip to the officer was completely corroborated. When defendant got out of his car to buy drugs, he left his child unattended and that gave reasonable suspicion to approach. State v. Guillot, 2013 La. App. LEXIS 765 ((La.App. 4 Cir. April 17, 2013).*
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Utah Man Pleads Guilty To Running Two Separate Ponzi Schemes
A Utah man agreed to plead guilty for his involvement in two separate Ponzi schemes - while on parole for a previous conviction for a third Ponzi scheme - that took in more than $30 million from investors. Wayne Ogden, of Koosharem, Utah, was convicted earlier this year for his role in one of the Ponzi schemes, and in a deal with authorities, agreed to plead guilty to one count of wire fraud and one count of securities fraud in exchange for a recommended 10-year sentence to be served concurrently in both cases. As part of the deal, Ogden will also agree to an order of restitution exceeding $3 million for each scheme.
Ogden was originally indicted in December 2007 for running a real estate Ponzi scheme in Kiowa, Colorado, where investors were promised returns as high as 100% from the development of a 360-acre parcel of land. However, while awaiting trial on those charges, Ogden was charged with concocting a separate Ponzi scheme that solicited underwater homeowners to provide assistance with refinancing and restructuring mortgages. Ogden's company, Paradigm Acceptance LLC ("Paradigm"), promised short-term returns ranging from 20% to 100%, assuring investors their money was secured by property. In total, Paradigm raised more than $29 million from investors.
However, each venture was nothing more than an elaborate Ponzi scheme where new investor funds were used to pay older investors, thus creating the appearance of a successful operation. Of the $29 million Ogden raised from Paradigm investors, nearly $23 million was paid back to older investors, and nearly $2 million was paid in salaries to Ogden and his brother.
Not surprisingly, at the time Ogden began soliciting investors for his first scheme, he was on parole for a $7 million Ponzi scheme he operated from 1995 to 1997 that ultimately netted him a 15-year prison sentence. However, he was paroled after just 28 months,
Ogden was convicted of yet another similar scheme during the mid-1990's when five hundred investors lost approximately $7 million. He was sentenced to two consecutive terms of up to fifteen years, but was paroled after serving 28 months.
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Injury Crash On I15 Blocks Traffic North of Arimo
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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Idaho State Police
District 5 5205 South 5th Ave.
Pocatello, Idaho 83204-2299
(208) 236-6466 FAX: (208) 236-6068
For Immediate Release: 04/21/13 7:55 AM
Please direct questions to the District Office
At this time, the Idaho State Police is investigating a one-vehcle injury crash southbound on Interstate 15 near milepost 42, about 2 miles north of Arimo. Southbound travel lanes are blocked but traffic is getting by on the right shoulder. Motorists are encouraged to avoid the area if possible. More information will be relayed as it becomes available.
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CantonRep.com: Fourth Amendment: No unreasonable searches
CantonRep.com: Fourth Amendment: No unreasonable searches by Tim Botos:
How much do I track thee? Let me count the ways.
With a GPS-equipped smart phone in your pocket, you drive to work in downtown Canton; click. You zip by a traffic camera along I-77; click. You exit the highway, and pass a city crime control camera; click. You fill up at a gas station, where a security camera catches you paying with a credit card at the pump; click and click. Then, a quick stop at the ATM; click. You arrive in the office parking lot, where a security camera records you; click. You swipe a key card to enter the building; click.
Finally, out of the public eye.
Until that is, you log on to your computer.
. . .
Hall, the defense lawyer, and a former president of the National Association of Criminal Defense Lawyers, said it’s long overdue.
“All those old farts on the Supreme Court don’t even understand how a cellphone works,” he said, referring to the 2010 Ontario v. Quon case. “When you read [the oral argument], it’s clear that (Justice) Roberts didn’t understand that cellphones don’t talk directly to each other ... they go to towers first.”
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Update :Injury Crash On I15 North of Airmo
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: 04/21/13 8:45 AM
Please direct questions to the District Office
***Update***
The right lane of travel is open southbound on I15 at mile marker 42. The left lane is still being blocked as crews work to remove the wreckage.
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At this time, the Idaho State Police is investigating a one-vehcle injury crash southbound on Interstate 15 near milepost 42, about 2 miles north of Arimo. Southbound travel lanes are blocked but traffic is getting by on the right shoulder. Motorists are encouraged to avoid the area if possible. More information will be relayed as it becomes available.
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Legal Analogies to Boston Bombing Suspect Dzhokhar Tsarnaev
I mentioned in an earlier post that I think the case of Faisal Shahzad, who attempted to set off explosive devices in Times Square on May 1, 2010, may be an indicator of how the Government will proceed with Dzhokhar Tsarnaev. If so, he won't be...
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Do recent California prison reforms demonstrate Plata ruling was a success or a failure?
There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order"...
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What does it take to prove a defendant's possession of drugs in his co-defendant's house?
By Stevie Phillips![]()
In State v. Robinson, police had staked out the co-defendant's house after receiving a tip from a confidential informant. The defendant was seen leaving the co-defendant's house on the way to a drug deal in a Backyard Burger parking lot. Police took down the defendant and co-defendant at the Backyard Burger. The co-defendant subsequently consented to a search of his car as well as his house. The cops found large amounts of cocaine in both. Police also found some paraphernalia in plain view at the co-defendant's house. On basically this proof alone, a jury convicted the defendant of possession of the cocaine in both the car and the house. It's one thing to find that the defendant constructively possessed the cocaine in the co-defendant's car. But the co-defendant's house? The TN Supreme Court held this week that that requires substantially more compelling circumstantial evidence and reversed the jury verdict. It's simply not enough for the State to prove that a defendant had knowledge that drugs were present; the State must prove that the defendant had the power to exercise control over the drugs.Our Supreme Court rarely grants appeal to assess sufficiency of the evidence. Nor will it grant appeal for mere error correction. The Court will however grant appeal if there is an absence of case law on a particular issue. It appears that's why the Court granted appeal here. Before now, few TN courts have addressed whether a defendant's contact with another residence is sufficient to establish constructive possession. The Supreme Court therefore looked at cases from a number of other states. The following is a list of factors that, based on the Court's analysis, should be considered in the "totality of the circumstances" when determining whether a defendant's contact with another residence is sufficient to establish constructive possession: - the defendant's access to the residence, i.e. whether he resides in, leases, or has the right to enter without the co-defendant present- whether the defendant was present when the drugs were discovered by police- the frequency of the defendant's visits to the residence - the location of the drugs in the residence, i.e. whether the drugs are in plain view- whether the defendant's personal belongings are in the residence - whether the defendant receives mail at the residence - whether the defendant's fingerprints are present on paraphernalia in the residence Read the unanimous opinion in State v. Robinson.
In State v. Robinson, police had staked out the co-defendant's house after receiving a tip from a confidential informant. The defendant was seen leaving the co-defendant's house on the way to a drug deal in a Backyard Burger parking lot. Police took down the defendant and co-defendant at the Backyard Burger. The co-defendant subsequently consented to a search of his car as well as his house. The cops found large amounts of cocaine in both. Police also found some paraphernalia in plain view at the co-defendant's house. On basically this proof alone, a jury convicted the defendant of possession of the cocaine in both the car and the house. It's one thing to find that the defendant constructively possessed the cocaine in the co-defendant's car. But the co-defendant's house? The TN Supreme Court held this week that that requires substantially more compelling circumstantial evidence and reversed the jury verdict. It's simply not enough for the State to prove that a defendant had knowledge that drugs were present; the State must prove that the defendant had the power to exercise control over the drugs.Our Supreme Court rarely grants appeal to assess sufficiency of the evidence. Nor will it grant appeal for mere error correction. The Court will however grant appeal if there is an absence of case law on a particular issue. It appears that's why the Court granted appeal here. Before now, few TN courts have addressed whether a defendant's contact with another residence is sufficient to establish constructive possession. The Supreme Court therefore looked at cases from a number of other states. The following is a list of factors that, based on the Court's analysis, should be considered in the "totality of the circumstances" when determining whether a defendant's contact with another residence is sufficient to establish constructive possession: - the defendant's access to the residence, i.e. whether he resides in, leases, or has the right to enter without the co-defendant present- whether the defendant was present when the drugs were discovered by police- the frequency of the defendant's visits to the residence - the location of the drugs in the residence, i.e. whether the drugs are in plain view- whether the defendant's personal belongings are in the residence - whether the defendant receives mail at the residence - whether the defendant's fingerprints are present on paraphernalia in the residence Read the unanimous opinion in State v. Robinson.
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D.Utah: When dog failed to alert, defendant should have been let go; consent even coerced
Defendant was stopped for a traffic violation and the officer was going to give a warning. After the computer checks came back clean and a drug dog who had been immediately called for went around the vehicle and did not alert, the officers were stymied and conversed about how to get consent. The stop was unreasonably long [and only by two minutes] because the officers didn’t let him go. Instead, the sought consent which was coerced “to make sure there were no drugs in the van.” United States v. Rodriguez, 2013 U.S. Dist. LEXIS 56456 (D. Utah April 15, 2013):
After telling Defendants he wanted to make sure there were no drugs or weapons in the van and asking Defendants to exit the van, Nazer asked for consent to search. At that time, Defendants were moved away from the van and each placed with one of the other officers. There were three officers total and a canine at the scene. It was the middle of the night on a dark and secluded street. The officers were all in uniform, armed, and providing the only real light at the scene by holding flashlights. The officer gave no indication that Defendants could refuse consent and, in fact, had prefaced his request by stating that he wanted to make sure Herrada had given a truthful response. Under the circumstances, the court finds that no reasonable person would have felt free to refuse the officer's request to search. Therefore, the court concludes that Herrada's consent to the search was not freely given and the search violated Defendants' Fourth Amendment rights. Accordingly, the court suppresses all evidence seized in the search.
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NJ: Answering door smoking a joint in a knock-and-talk justifies entry
Answering door at a knock-and-talk smoking a joint creates cause for entry. State v. Walker, 2013 N.J. LEXIS 355 (April 10, 2013).
A cursory visual search through the windows of a car does not dissipate probable cause. A judge issuing a search warrant doesn’t need to know that already happened, and failure to put it in the affidavit is not a Franks violation. United States v. Johnson, 2013 U.S. Dist. LEXIS 55907 (W.D. Pa. April 15, 2013).*
After the hearing on the motions to suppress, the court asked for briefing, and the defendants didn’t file any. That means the motions are withdrawn. “In addition to be subject to denial for having been withdrawn, the motions lack merit.” United States v. Gutierrez-Martinez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013).*
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