Federal Criminal Law News

Berghuis v. Thompkins: U.S. Supreme Court Holds That One Must Speak to Invoke the Right to Remain Silent

June 2, 2010 | by Finch McCranie, LLP

The United States Supreme Court decided two important federal criminal cases yesterday. We discussed the reasonable opinion in U.S. v. Carr, a SORNA case, in this post yesterday. We must now address the disappointing decision in Berghuis v. Thompkins, which we briefly explained in this post last October.

The Court divided along traditional ideological lines, with Justice Kennedy issuing the majority opinion joined by the conservative bloc and Justice Sotomayor writing a lengthy dissent for the liberal justices. The majority held, counter-intuitively, that a person must make an unambiguous statement to invoke his right to remain silent.

In this case, Mr. Thompkins was in custody, awaiting transfer to another state. He was seated in a hard, straight-backed chair in a small room. With the exception of declining a peppermint and commenting on his chair’s discomfort, he remained silent for nearly three hours of interrogation, until asked whether he believed in God. He said, “Yes.” and began to cry. When asked if he prayed, he again said, “Yes.” He was then asked if he prayed to God for forgiveness “for shooting that boy down.” Again, he said, “Yes,” and looked away. He refused to sign a Miranda waiver form or make a written statement.

Carr: Federal Supreme Court Holds That Liability under 18 U.S.C. § 2250 Cannot Be Predicated on Pre-SORNA Travel

June 1, 2010 | by Finch McCranie, LLP

This morning the United States Supreme Court held that 18 U.S.C. § 2250, a part of of the Sex Offender Registration and Notification Act (SORNA), does not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date in July 2006. This case resolves a circuit court split in which the Eleventh Circuit, which hears appeals from federal cases in Georgia, Florida, and Alabama, took the opposite view.

In an opinion by Justice Sotomayor, the Court explained that the three elements of Section 2250 (requirement to register, interstate travel, and failure to register) “must be satisfied in sequence.” The interpretation that the statute does not impose liability unless a person travels and fails to register after becoming subject to SORNA’s requirements accords with the text of the statute, which sets forth the travel requirement in the present tense. The Court also noted that Section 2250 is just one of several provisions of SORNA and that SORNA’s overall structure also indicates that Section 2250 should be limited to its specific purpose, rather than expanded to tackle all of SORNA’s broader intent.

The Court noted that because Section 2250 liability could not be predicated on pre-SORNA travel, the Court needed not address whether the statute violated the Ex Post Facto Clause.

Lee: Eleventh Circuit Court of Appeals Upholds Conviction for Attempt to Entice a Minor Even Though All Communications Were With “Parent” of Fictitious Minors and Defendant Never Made Arrangements to Meet Minors

April 20, 2010 | by Finch McCranie, LLP

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in United States v. Lee. The Court held affirmed Mr. Lee’s convictions, holding that his communications with a “mother” of minors, absent any travel arrangements, were sufficient evidence of attempting to entice a minor. Judge Martin filed a vigorous dissent, arguing that the evidence failed to support that Mr. Lee took a substantial step toward that crime. She concurred with the majority in affirming Mr. Lee’s other federal criminal convictions.

Mr. Lee communicated with a postal inspector who was posing as a mother of two minor girls. He never communicated with anyone claiming to be a minor, although he asked the “mother” to share information and photographs with her daughters and requested photos in return. He discussed meeting them in general terms, but at one point noted that their first meeting would be as friends. He never made travel arrangements.

Judge Martin declared her “concern that the majority opinion does not clearly demarcate despicable but lawful talk from a criminal attempt punishable by up to 30 years in prison.” While the interaction was “disturbing,” no evidence showed that Mr. Lee took any steps to extend his relationship beyond his home. His actions should not count as a “substantial step toward enticing a child to engage in illicit sexual conduct.” For that reason, Judge Martin would have vacated the attempt conviction.

USSC Issues Press Release Regarding Amendments to Federal Sentencing Guidelines

April 19, 2010 | by Finch McCranie, LLP

As we reported last week, the United States Sentencing Commission (USSC) has been voting on proposed amendments to the Federal Sentencing Guidelines. Today the USSC issued a press release explaining additional amendments, including:

• Expanding the availability of alternatives to incarceration;

• Amending policy statements regarding age, mental and emotional conditions, physical condition, and military service to recognize their potential relevance;

Recency Criminal History Points to be Deleted from Federal Sentencing Guidelines

April 15, 2010 | by Finch McCranie, LLP

This Tuesday, the United States Sentencing Commission (USSC) voted to delete 4A1.1(e) from the Federal Sentencing Guidelines Manual. This Guideline addresses the recency of previous imprisonment in calculating the criminal history points that increase a defendant’s sentence.

4A1.1(e) currently reads:

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) [more than 60 days] or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d) [which adds points where the crime was committed while under a sentence, including probation, etc.], add only 1 point for this item.

Eleventh Circuit Holds No Expectation of Privacy in Delivered Email Messages

March 17, 2010 | by Finch McCranie, LLP

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.

Harrington v. Richter: Cert Granted in AEDPA Ineffective Counsel Case

March 9, 2010 | by Finch McCranie, LLP

The Supreme Court has granted certiorari in Harrington v. Richter, a federal habeas corpus case out of the Ninth Circuit. The Ninth Circuit held that Richter was prejudiced by his defense lawyer’s unreasonable failure to investigate and present expert testimony on blood evidence and that the state court’s determination that he was not denied effective assistance of counsel was an unreasonable application of clearly established federal law.

The question presented is whether the Ninth Circuit denied the state court the deference mandated by AEDPA and impermissibly enlarged the Sixth Amendment right to counsel by elevating the value of expert opinion testimony to virtually always require criminal defense attorneys to produce such testimony. In addition, the Court asked the parties to brief whether AEDPA deference applies to a state court’s summary disposition of a claim, including under the Strickland test for ineffective assistance of counsel.

The facts of this case would make for an interesting episode of CSI. Both parties agreed that two defendants, Richter and Branscombe, socialized for several hours in Johnson’s house with Johnson and Klein until 2:30 a.m., when they left but Klein decided to spend the night. The prosecution and defense presented divergent theories at trial of the events occurring later that morning, when Klein was killed and Johnson received gunshot wounds.

Bloate: Supreme Court Holds Time Granted to Criminal Defendants to Prepare Pretrial Motions is Not Automatically Excludable under Speedy Trial Act

March 8, 2010 | by Finch McCranie, LLP

This morning the Supreme Court issued its opinion in Bloate v. U.S. The Court resolved a circuit court split, holding that additional time granted to criminal defendants to prepare pretrial motions is not automatically excludable from the federal Speedy Trial Act’s 70-day limit under subsection (h)(1). The Eleventh Circuit Court of Appeals, which sits here in Atlanta, previously held the opposite, so this decision marks a change in the law of this circuit. We explained the issues in this case and the Eleventh Circuit case in this post last year.

The government argued that defendants could “lay a trap” for judges by requesting time to prepare motions. The Court noted that a district court judge may still exclude such time from the Speedy Trial Act under subsection (h)(7) if it finds “that the ends of justice served by [a continuance for time to prepare pretrial motions] outweigh the best interest of the public and the defendant in a speedy trial.” The judge need only place these reasons on the record.

The Speedy Trial Act is available here.

Supreme Court Criminal Case: Police May Reinterrogate a Suspect Two Weeks After He Requests a Lawyer, Even if He Remains in Prison, Lawyerless

February 26, 2010 | by Finch McCranie, LLP

This week, the United States Supreme Court handed down its opinion in Maryland v. Shatzer. The case examined the parameters of the protections afforded by Edwards v. Arizona regarding reinterrogation of a criminal suspect after he has requested counsel. The court held that 1) a break in custody lasting more than two weeks between attempts at interrogation is sufficient to avoid the coercive pressures against which Edwards protected and 2) a return to the general prison population amounts to a break in custody for the purposes of this rule.

Justice Scalia delivered the opinion of the Court. Justices Thomas and Stevens each concurred in the judgment but disagreed with the 14-day break in custody rule. Justice Thomas would prefer Edwards be limited to “the circumstances present in Edwards itself” whereas Justice Stevens did not find the bright-line rule to provide enough protection against coerced confessions. We agree with Justice Stevens.

The facts of the case involve allegations of sexual child abuse against Mr. Shatzer while he was incarcerated for another offense. In 2003 a detective attempted to interview Mr. Shatzer about sexual abuse of his 3-year-old son, but Mr. Shatzer declined to speak without an attorney. The investigation was closed.

Briscoe v. Virginia: Federal Supreme Court Upholds Recent Opinion Regarding Testimony By Forensic Analysts in Criminal Trials

February 4, 2010 | by Finch McCranie, LLP

Crime%20lab%20photo%20courtesy%20of%20U.S.%20Army Last week the Supreme Court vacated and remanded Briscoe v. Virginia for proceedings consistent with the decision in Melendez-Diaz v. Massachusetts. We discussed Melendez-Diaz last summer in this post.

In Melendez-Diaz, the Supreme Court held that crime lab reports are testimonial statements covered by the Confrontation Clause of the Sixth Amendment. For such reports to be admissible, the forensic analysts must testify as witnesses in criminal trials, both federal and state. Shortly after that decision, the Court granted cert in Briscoe, a case presenting the same issue. Justice Scalia criticized the grant of cert, asking, “Why is this case here except as an opportunity to upset Melendez-Diaz?”

He asked that question at oral argument less than one month ago. SCOTUSblog covered that oral argument thoroughly in this post. They also explained last week’s decision in the context of the changing Court in the first half of this SCOTUSblog post.