A criminal defendant has a right to testify in his own defense. But exercising that right carries risks. He could make a bad impression. The government could conduct a damaging cross-examination. And if the jury’s verdict necessarily reflects a flat rejection of his testimony, he could be deemed to have sought to obstruct justice through perjury, triggering a sentence enhancement under Section 3C1.1 of the Sentencing Guidelines. But if that enhancement is too readily applied, it could “chill” defendants from giving even non-perjurious testimony, and thereby unduly infringe upon their right to testify. To guard against this, the Ninth Circuit held, in United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014), that the enhancement may not be applied unless the district court expressly finds that: (1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent. In Mr. Herrera-Rivera’s meth-possession…
United States v. Herrera-Rivera, — F.3d — (9th Cir. Aug. 12, 2016): Obstruction of justice enhancement vacated for failure to make supporting findings
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Theft Laws In California
NUTTY THIEVES My father always reminded me that “money doesn’t grow on trees.” Well, that’s not exactly true. In California’s Central Valley thieves with computer hacking skills have stolen millions of dollars of tree nuts. Yes, tree nuts — like almonds, pistachios, and cashews. These high-tech thieves hack into shipping chain databases and by changing or using the shipping information they are able to pick up nut cargo loads from unsuspecting nut growers or hijack the load, using no force at all, while the nuts are in transit. Continue reading →
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4 Ways Colorado’s Decision to Legalize Marijuana Has Changed the State Dramatically
By Staff Attorney The Gasper Law Group, PLLC On November 6, 2012, Colorado passed Amendment 64, which radically changed the state’s legal stance towards marijuana, reforming Colorado’s laws to allow for recreational use of the drug. At the time, critics warned of potential negative consequences of the legislation. On January 1, 2014, establishments throughout the state began to sell marijuana to the general public. Twenty-eight months into this new paradigm, let’s assess the impact the legalization has had on various aspects of public life. Were the critics right or not? Continue reading →
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"7 Scientific Effects of Marijuana That Experts Want to Study"
The title of this is the headline of this new Time article that serves as a somewhat fitting follow-up to the (big?) news the DEA delivered this week about marijuana scheduling and research. Here are excerpts: On Thursday the U.S. government announced that marijuana would continue to be classified as...<img src="http://feeds.feedburner.com/~r/MarijuanaLaw/~4/tEI2f-tVKq0" height="1" width="1" alt=""/>
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Sentencing and Plain Error Redux– trial court’s erroneous imposition of career offender enhancement requires vacation of lengthy sentence: United States v. Sheffield, _ F.3d _ (D.C. Circuit, No. 12-3013, August 12, 2016)
A unanimous panel of the D.C. Circuit (Millett, Ginsburg, Sentelle, JJ), vacated a 230-month sentence of incarceration, coupled with 96 months of supervised release, imposed following appellant’s conviction of a 21 U.S.C. § 841 PCP trafficking offense. After rejecting several merits-based arguments, including another thorough discussion of Rule 404b), F. R. EVID., standards (see this column’s recent blog on United States v. Burnett, _ F.3d _ (D.C. Circuit, No. 13-3075, July 8, 2016), the Court of Appeals found plain error in the Trial Judge’s conclusion that Dante Sheffield’s 2007 local conviction for attempted robbery justified a Career-Offender enhancement under the Sentencing Guidelines. Writing for the panel, Circuit Judge Millett noted that the Government – to its credit – agreed that the sentence enhancement was mistaken. (Slip Op. at 26). Judge Millett explained that “[t]he Guidelines define ‘crime of violence’…
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Don't consent to any search
The Georgia Court of Appeals recently determined that a driver can implicate himself, simply by honestly answering Officer Friendly’s questions. In State vs. Martin, deputies were responding to a noise complaint from a car. They found the car, parked in a driveway, with Martin and his buddy standing outside it. The deputy asked the men about the loud music and what they were doing. The deputy then asked Martin "if anything was in the vehicle that the deputy needed to know about or be concerned about." Martin responded, "yes." When the deputy asked what was in the car, Martin stated that there was "some marijuana and a pipe." The deputy asked Martin to retrieve the items, and Martin produced a small bag containing a green leafy substance and a glass pipe and placed them on the roof of the vehicle. The officer then arrested Martin for possession of marijuana and possession of a drug-related object. In this case, the deputy's…
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Cook on Police Reform and the Judicial Mandate
Julian A. Cook (University of Georgia Law School) has posted Police Reform and the Judicial Mandate (50 Georgia Law Review Online (2016)) In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December...
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New law review article: A Tactical Fourth Amendment
Brandon L. Garrett, A Tactical Fourth Amendment, 102 Va.L.Rev. __ (2016). Abstract: What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil and criminal and administrative rules governing police use of … Continue reading →
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Constructive Possession of Drugs in Florida
Constructive Possession of Drugs in FloridaWhat is Actual Possession of Drugs in Florida?One Florida court, Sasser v. State, 67 So. 3d 1150, 1152 (Fla. 2d DCA 2011) defined Actual Possession of Drugs in Florida as "[A]ctual possession is shown when contraband is found in the defendant's hand, or his person, or within reach and under the defendant's control." (quoting Bennett v. State, 46 So. 3d 1181, 1183-84 (Fla. 2d DCA 2010)). What is Constructive Possession of Drugs in Florida?To convict on a theory of constructive possession, the State is required to prove beyond a reasonable doubt (1) that the defendant had knowledge of the contraband and (2) that she had the ability to exercise dominion and control over the contraband. See Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016); Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008). What happens where drugs are found in a room with more than one occupant?"Where contraband is…
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Thanks to our friends at Answering Legal, our Traffic Ticket Defense Law Firm is open 24 / 7. Call us Anytime Toll Free 1-877-99-No-Tix (1-877-996-6849)
We know that people don’t get NY speeding tickets only between the hours of 9:00 a.m. – 5:00 p.m. Monday through Friday. In fact, often when you need a lawyer you need them at the oddest hours – 2:00 a.m. Thursday Morning, Midnight Sunday, 9:00 p.m. on a Monday. If YOU ever find yourself in need of a lawyer at anytime of the day or evening or on a holiday, do not hesitate to call us at either our toll free number 1-877-99-No-Tix, or our local number 914-777-2990, because we are open 24 / 7 365 days a year to service your needs. We don’t stay open around the clock just for the emergencies. We stay open around the clock because we know how frustrating it is to call a law office and have to wait days for call to be returned. We stay open around the clock for the convenience of our clients. We stay open around the clock because we appreciate your loyalty and the opportunity to service you. When people receive speeding tickets and want to explore their…
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BIG PHARMA OWNS OBAMA: DEA KEEPS POT CLASSIFIED WITH HEROIN
No, the title of this post not some Republican campaign slogan, and it’s not a joke, either. Barack Obama’s Drug Enforcement administration (DEA) today issued its final decision that marijuana is to remain on the federal government’s list of the most highly dangerous and regulated drugs, the Associated Press reported today. The decision followed a petition by the governors of Washington state and Rhode Island to reclassify pot into a far less severe category. Note: That petition by the governors of the above states was filed at the DEA in 2011 – yes, it has taken the DEA five years to arrive at not only any decision in this matter, but the most scientifically and socially unsupported decision possible. This is your tax dollars at work: Stonewalling, inefficiency, foot dragging. So why would the federal government take five years to reach this insulting and unsupportable decision? Two words: Politics and money –…
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The Olympics Of Race, Gender and Loathing
At first blush, this headline would seem inconceivable. It’s a horrible headline no matter how you twist it, but this wasn’t meant as some race-baiting white supremacist slant. Exactly the opposite. Simone Manuel accomplished a magnificent feat, taking the gold medal in the women’s 100 meter freestyle. Yet, the headline writer, given whatever limits of space imposed, made the choice of including the most important, most salient piece of information. It was not her name. Manuel, who on Friday qualified for Saturday’s 50-meter freestyle final, said she looked forward to the day when she is known simply as a champion. She didn’t win because of her race. She won because she spent countless hours in a pool. She won because of her skill, work ethic and dedication to her sport. And yet, in this moment in social justice history, she’s been reduced to her skin color. To the extent anyone doubted that a black swimmer could be great, you were…
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The Dilettante Judge
The Honorable Shelly Chapman is a federal judge, but of the bankruptcy type. Unlike district court judges, bankruptcy judges don’t hear criminal cases. They are usually bankruptcy lawyers who go on to sit on the bench hearing the same types of cases they knew as practitioners. It’s a specialty thing. And yet, they were lawyers once. And judges now. So how is this possible? I love going to court. There is drama. There is pathos. It is the place I go, as a bankruptcy judge for the Southern District of New York, to uphold the laws and Constitution of the United States, and to administer justice “without respect to persons.” No doubt there’s drama and pathos in bankruptcy court. Wherever people’s rights are in issue, drama and pathos follows. But with all due respect to Judge Chapman’s sensibilities, she’s experienced the breadth of legal drama and pathos of a cloistered nun. Welcome to the Bronx. The title of her Vice post was…
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ENTREVISTA A JORGE RAMOS RAYGADA SOBRE LAS AFP
Dìa 11 de junio, Diario: "Gestiòn" pàginas 1 y 2, Entrevista al señor Jorge Ramos Raygada Gerente de SURA, propietaria (hasta donde entiendo, de AFP Integra).Titular: "Hoy sòlo el 1% de los que se jubilan en AFP escoge una pensiòn completa" Conviene destacar la representaciòn del entrevistado, una , poderosa aseguradora y porquè es importante, sencillamente porquè estàn dejando de percibir ese 99%, tal vez un poquito menos considerando la modalidad de Retiro Programado en el que el dinero se queda en la AFP. El señor Ramos Raygada revela cifras "preocupantess" del destino que le dan al dinero los clientes de las AFP que deciden retirar el 95.5%, lo ùnico destacable para èl es que existe un 18% de ese universo que coloca la totalidad del retiro en la banca financiera "eso es positivo", luego declara: "...Pero estos retiros se vuelven una…
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DAVID PAULUS REMEMBERED
Every now and then we are brought back to earth and reminded that all of this is worthwhile and there are things more important than work. We received this amazing comment which is now posted in the blog post about her dad:I just found this blog after 4 years I am 13 now and I know its late but I wanted to say thank you to all the people who supported my family and wrote these things. He really was the best parent and lawyer and I still miss him everyday. I also wanted to give thanks to the people who worked at the Justice Building with my dad because you gave him the best years of his life working there and sometimes I still think he is gonna come back from there with his briefcase. I remember take your child to work day and walking around the office talking to his co workers and friends I remember looking through some files and playing with the badges he had in his office. I am really proud of the man he was and I wish he could have seen me now and helped protect the…
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WSJ Blog: Study Links Police Bodycams to Increase in Shooting Deaths
WSJ Blog: Study Links Police Bodycams to Increase in Shooting Deaths by Jacob Gershman: In the wake of high-profile police shootings, the Obama administration has encouraged local police departments to equip their officers with body-worn cameras. The devices, said Attorney … Continue reading →
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M.D.Fla.: Reliance on a state court tracking order years ago was entitled to good faith
Under the Stored Communications Act, one must still prove standing as an “aggrieved person.” A state court cell phone tracking order is entitled to good faith exception deference, particularly since it was issued prior to any cases on the subject. … Continue reading →
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Encouraging a Suicide Could Lead to Involuntary Manslaughter Charges
Involuntary Manslaughter Returning to the saga of Michelle Carter (an early blog post about her alleged crimes can be found here), the teen who allegedly encouraged her boyfriend, Conrad Roy, who was eighteen at the time, to commit suicide, can stand trial for the death of her friend, according to the Massachusetts Supreme Judicial Court. Boston.com recently reported that Carter will have to stand trial for involuntary manslaughter. The death of Conrad Roy occurred two years ago on July 13, 2014, but it has taken this long for the state courts to decide whether or not Carter should stand trial because her conduct merely involved the use of words of encouragement that lead to Roy taking his own life, rather than Carter having taken some action to prompt the death. Were Carter’s words free speech, or something criminal? Carter and Roy became a couple after meeting while on vacation in Florida. They engaged in a long distance relationship and communicated extensively through…
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Is Ride Sharing Reducing the Number of Drunk Driving Incidents?
These days, most people in Boston are familiar with Uber, Lyft, and possible other so-called ride sharing companies. For those that are not aware, you call for a ride on your smart phone via the company’s app and are told how long it will take for a driver to get to you. You generally have a choice as to whether you want a black car similar to what people take to the airport for business trips or if you want a regular marked taxi, or a private vehicle driven by one of the company’s non-professional drivers. As one might expect, this new business model makes licensed taxi drivers and other professional drivers and their respective employers very upset because it was costing them a lot of business. They were also arguing that the new drivers did not need to pass official background checks or show a knowledge of the area and how to get to places around the city. For example, many cab drivers are required to pass a map test whereas many Uber drivers…
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Can I give a friend marijuana if I have a medical marijuana card
As a medical marijuana prescription holder, you are one of Maine’s citizens for whom possessing marijuana is legal and growing a small limited number of marijuana plants for your own use is also legal. What if you want to be able to give some marijuana to a friend? The answer to the question (can I […] The post Can I give a friend marijuana if I have a medical marijuana card appeared first on The Nielsen Group.
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