In an opinion published last week, (available here), the Court of Special Appeals decided whether a police department’s reliance on incorrect information provided by a third party should be subject to the exclusionary rule.
Previously, in State v. Ott, the Court of Appeals held that the good faith exception to the exclusionary rule did not apply when police officers relied on incorrect internal records of their own department. In Ott, a Sheriff’s Department had kept inaccurate records on the status of warrants, and a police officer who relied on these records was prohibited from invoking the good faith exception to the exclusionary rule. The Court stated that knowledge of the validity of a department’s internal records is imputed to officers of the police department, and that without exclusion, a department may have less of an incentive to keep accurate records (or to actually falsify records).
In this case, police officers pulled the defendant over after running his license plate number through their MVA records database, and finding that the tag was invalid. In fact, the tag was not invalid (or so it seems from the sparse record alluded to on appeal). The defendant argued that the stop was illegal because, under Ott, the police relied on inaccurate records and could not rely on the good faith exception to the exclusionary rule. The state argued that Ott did not apply, and that two recent Supreme Court cases, Evans and Herring, were more on point.
The Court held that the good faith exception to the exclusionary rule should apply to a police department’s reliance on inaccurate MVA records, because police departments have no control over the accuracy of these records, and the MVA has no conceivable interest in maintaining inaccurate records.
Posted by Brennan Sullivan and McKenna
Tuesday, September 7, 2010
Wednesday, July 7, 2010
Fourth Circuit Vacates Sentence – Alford Plea to Second Degree Assault Not ACCA Predicate
The opinion in United States v. Alston is available here.
In an opinion published last week, Judge Niemeyer wrote a unanimous opinion holding that where a defendant has previously been convicted of second-degree assault in Maryland state court, by way of an Alford plea, that conviction may not be used as an ACCA predicate.
There are other posts about ACCA on this blog, but in summary – certain crimes do not, on their face, qualify as violent felonies, because there are non-violent ways to commit the crimes. In Shepard and later cases, the Supreme Court has tailored the types of information courts can look to in determining whether a conviction qualifies as a “violent felony” so that it can be used as a predicated under the Armed Career Criminal Act. Generally, “Shepard prevents sentencing courts from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant.”
In Alston, the district court permitted the United States Attorney’s Office to prove that the defendant’s Alford plea satisfied the “violent felony” requirement by introducing the plea colloquy, during which the state court prosecutor laid out the evidence the state would have presented had the case proceeded to trial. Importantly, because the plea was made pursuant to Alford, the defendant did not admit guilt, nor did the defendant admit any of the facts the prosecutor said they could prove. The defendant simply admitted that the evidence the prosecutor claimed they would present, would be the evidence they presented – without any assertion as to whether the defendant agreed with the truth of such evidence.
The Fourth Circuit reversed the decision of the district court and held that in a case where the defendant entered an Alford plea to a crime that may or may not be a violent felony, this plea itself may not be used as a mechanism to qualify the crime as a predicate under the ACCA.
Posted by Brennan Sullivan and McKenna
In an opinion published last week, Judge Niemeyer wrote a unanimous opinion holding that where a defendant has previously been convicted of second-degree assault in Maryland state court, by way of an Alford plea, that conviction may not be used as an ACCA predicate.
There are other posts about ACCA on this blog, but in summary – certain crimes do not, on their face, qualify as violent felonies, because there are non-violent ways to commit the crimes. In Shepard and later cases, the Supreme Court has tailored the types of information courts can look to in determining whether a conviction qualifies as a “violent felony” so that it can be used as a predicated under the Armed Career Criminal Act. Generally, “Shepard prevents sentencing courts from assessing whether a prior conviction counts as an ACCA predicate conviction by relying on facts neither inherent in the conviction nor admitted by the defendant.”
In Alston, the district court permitted the United States Attorney’s Office to prove that the defendant’s Alford plea satisfied the “violent felony” requirement by introducing the plea colloquy, during which the state court prosecutor laid out the evidence the state would have presented had the case proceeded to trial. Importantly, because the plea was made pursuant to Alford, the defendant did not admit guilt, nor did the defendant admit any of the facts the prosecutor said they could prove. The defendant simply admitted that the evidence the prosecutor claimed they would present, would be the evidence they presented – without any assertion as to whether the defendant agreed with the truth of such evidence.
The Fourth Circuit reversed the decision of the district court and held that in a case where the defendant entered an Alford plea to a crime that may or may not be a violent felony, this plea itself may not be used as a mechanism to qualify the crime as a predicate under the ACCA.
Posted by Brennan Sullivan and McKenna
Tuesday, July 6, 2010
Failure to Request Informant Instruction = Ineffective Assistance
This past week, in United States v. Luck, the Fourth Circuit held that where the outcome of a criminal case might hinge on the credibility of the government's cooperating witnesses, a defense attorney's failure to request an "informant" jury instruction is ineffective assistance.
The opinion is available here.
During the defendant-appellant's trial, the government called to the stand a number of cooperating witnesses who testified that the defendant was a crack dealer, and that he had sold them crack. In addition to this testimony, there was evidence of a search warrant that had been executed at the defendant's house - where paraphernalia, but no drugs were recovered - and a grainy video allegedly depicting the defendant engaged in a drug transaction.
During his cross-examination of the government's cooperating witnesses, the defendant brought the witnesses' biases to the attention of the jury - the witnesses were receiving consideration for their testimony in the form of reduced sentences and monetary compensation. However, at the close of trial, the judge did not read the special "informant instruction" to the jury. This instruction highlights to a jury the need to carefully examine the testimony and credibility of informant witnesses, as these witnesses may have an incentive to tell a version of events that the government wants them to testify to - even if it is not the truth.
For some unknown reason, the defense attorney never requested that the judge instruct the jury in this manner -- even though the judge likely would have given such an instruction (probably without any objection from government, as such an instruction was clearly warranted).
In the end, the court held that the defendant's attorney was ineffective under Strickland, vacated his conviction and remanded his case for a new trial.
Posted by Brennan Sullivan and McKenna
The opinion is available here.
During the defendant-appellant's trial, the government called to the stand a number of cooperating witnesses who testified that the defendant was a crack dealer, and that he had sold them crack. In addition to this testimony, there was evidence of a search warrant that had been executed at the defendant's house - where paraphernalia, but no drugs were recovered - and a grainy video allegedly depicting the defendant engaged in a drug transaction.
During his cross-examination of the government's cooperating witnesses, the defendant brought the witnesses' biases to the attention of the jury - the witnesses were receiving consideration for their testimony in the form of reduced sentences and monetary compensation. However, at the close of trial, the judge did not read the special "informant instruction" to the jury. This instruction highlights to a jury the need to carefully examine the testimony and credibility of informant witnesses, as these witnesses may have an incentive to tell a version of events that the government wants them to testify to - even if it is not the truth.
For some unknown reason, the defense attorney never requested that the judge instruct the jury in this manner -- even though the judge likely would have given such an instruction (probably without any objection from government, as such an instruction was clearly warranted).
In the end, the court held that the defendant's attorney was ineffective under Strickland, vacated his conviction and remanded his case for a new trial.
Posted by Brennan Sullivan and McKenna
Monday, May 17, 2010
No LWOP for (non-homicidal) Juveniles
Graham v. Florida (08-7621)
The Supreme Court of the United States held today that a sentence of life without the possibility of parole (LWOP), for a juvenile defendant, violates the Eight Amendment as a cruel and unusual punishment. Justice Kennedy noted in the last portion of the Court's opinion that a sentence of less than LWOP gives offenders "a chance to demonstrate maturity and reform" over time.
"Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. . . . A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term."
"A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term."
The most interesting passage in the opinion (from a defense attorney's perspective) is the following:
"Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to to work effectively with their lawyers to aid in their defense. . . . Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense."
The opinion is available here. Discussion on Graham elsewhere here.
Posted by Brennan Sullivan and McKenna
The Supreme Court of the United States held today that a sentence of life without the possibility of parole (LWOP), for a juvenile defendant, violates the Eight Amendment as a cruel and unusual punishment. Justice Kennedy noted in the last portion of the Court's opinion that a sentence of less than LWOP gives offenders "a chance to demonstrate maturity and reform" over time.
"Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. . . . A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term."
"A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term."
The most interesting passage in the opinion (from a defense attorney's perspective) is the following:
"Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to to work effectively with their lawyers to aid in their defense. . . . Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense."
The opinion is available here. Discussion on Graham elsewhere here.
Posted by Brennan Sullivan and McKenna
Monday, February 8, 2010
Fourth Circuit Affirms Convictions for Wire Fraud and District Court’s Calculation of Loss
Last week, the Fourth Circuit issued an opinion in United States v. Jiten Mehta. The opinion is available here.
The defendant was charged with a variety of crimes relating to the preparation of false tax returns, including wire fraud. At trial, the government presented evidence that the defendant was a tax-preparer for many immigrant clients. He “repeatedly fabricated or exaggerated deductions” on many of the Schedule A returns for his clients. This produced less tax liability for his clients, and, according to the government, a loss to the IRS.
Mehta challenged his conviction and sentence on three grounds: (1) that the evidence offered at trial was insufficient to convict him, or that there was a variance of proof at trial, such that the evidence offered prejudiced him, (2) that the district court’s denial of his motion for Rule 17(c) subpoenas prejudiced him, and (3) that the district court’s tax-loss calculation was in error, and caused the miscalculation of his sentencing guidelines.
The Court’s discussion of the sufficiency and variance issues are brief and straight forward. The more important parts of the opinion are the other issues.
In affirming the defendant’s convictions for wire fraud, the Court states in a footnote:
The Court resolved the defendant’s entire argument regarding Rule 17(c) subpoenas in a footnote. The defendant, it seems, hoped that by using trial subpoenas for the tax records filed by testifying witnesses in the years prior to the defendant’s conduct, he could show that the clients had themselves claimed the same “fraudulent” deductions prior to his involvement. Because the defendant failed to meet the Nixon standard (the defendant provided “no support” and only “speculation” as to the contents of the returns sought), the Court held, the district court did not err in denying his motion for these subpoenas.
The remainder of the opinion details the vagaries of tax-loss calculation and models that are acceptable – or not – of estimating tax loss under the guidelines. Ultimately, the Court affirms the loss calculation under the harmless error standard.
Posted by Brennan Sullivan and McKenna
The defendant was charged with a variety of crimes relating to the preparation of false tax returns, including wire fraud. At trial, the government presented evidence that the defendant was a tax-preparer for many immigrant clients. He “repeatedly fabricated or exaggerated deductions” on many of the Schedule A returns for his clients. This produced less tax liability for his clients, and, according to the government, a loss to the IRS.
Mehta challenged his conviction and sentence on three grounds: (1) that the evidence offered at trial was insufficient to convict him, or that there was a variance of proof at trial, such that the evidence offered prejudiced him, (2) that the district court’s denial of his motion for Rule 17(c) subpoenas prejudiced him, and (3) that the district court’s tax-loss calculation was in error, and caused the miscalculation of his sentencing guidelines.
The Court’s discussion of the sufficiency and variance issues are brief and straight forward. The more important parts of the opinion are the other issues.
In affirming the defendant’s convictions for wire fraud, the Court states in a footnote:
Mehta also challenges the district court’s denial of his motion for a Rule 17(c) pre-trial subpoena of tax returns filed [during the three year period prior to the returns covered by their testimony] by the taxpayers who testified [against him]. [Mehta] failed to provide any support for his speculation as to the contents of the tax returns sought, [the Court affirms].
The Court resolved the defendant’s entire argument regarding Rule 17(c) subpoenas in a footnote. The defendant, it seems, hoped that by using trial subpoenas for the tax records filed by testifying witnesses in the years prior to the defendant’s conduct, he could show that the clients had themselves claimed the same “fraudulent” deductions prior to his involvement. Because the defendant failed to meet the Nixon standard (the defendant provided “no support” and only “speculation” as to the contents of the returns sought), the Court held, the district court did not err in denying his motion for these subpoenas.
The remainder of the opinion details the vagaries of tax-loss calculation and models that are acceptable – or not – of estimating tax loss under the guidelines. Ultimately, the Court affirms the loss calculation under the harmless error standard.
Posted by Brennan Sullivan and McKenna
Monday, January 4, 2010
Trial Court's Denial of a Motion for Mistrial Constituted Abuse of Discretion
“We conclude that the case before us presents one of those rare instances in which the denial of the motion for mistrial constituted an abuse of discretion.”
In an opinion filed last week, the Court of Special Appeals vacated a defendant’s conviction for retaliation against a witness and remanded the case for a new trial. The court’s decision recognizes the severe prejudice a defendant must endure when facts about the defendant’s criminal history are elicited to a jury. The opinion in Parker v. State, No. 1351, September Term, 2006. (Filed November 30, 2009) is available here.
The defendant was on trial for the crime of retaliation against a witness. He was convicted by a jury in Washington County, Maryland, and appealed. On appeal, he argued that the trial court erred by refusing to grant a mistrial. Here’s what happened at trial:
Prior to trial, defense counsel (who if I remember correctly was Brian Hutchison or Steve Musselman from the OPD) made a motion in limine to prevent the state from inquiring into the nature of the defendant’s previous “legal proceedings” (the defendant had been convicted of a drug conspiracy). The court granted the motion. Later, the state attempted to cross-examine the defendant on the nature of his prior criminal contacts. The court denied the state’s request.
During the state’s cross-examination of the defendant, this exchange took place:
Q: In fact, Detective Dunkle had investigated you, isn’t that true?
A: That’s correct.
Q: And that investigation led to you being convicted, isn’t that right?
Defense counsel promptly objected and moved for a mistrial. The objection was sustained, but the motion for a mistrial and request to approach the bench to argue the motion were denied.
The Court of Special Appeals held: the defendant’s “request for a mistrial was plainly stated, and the court’s refusal to permit counsel to approach the bench to argue the motion in greater detail effectively denied the motion.”
The Court specifically noted that the reference to the defendant’s prior conviction was an isolated statement intentionally made by the prosecutor despite the trial judge’s instructions and rulings on defense counsel’s motions in limine. In addition, although no curative instruction was requested, the prosecutor “making the reference was person of significant influence in the case.” Because the bulk of the jury’s findings would hinge on the defendant’s credibility, the court held that it could not “conclude beyond a reasonable doubt that the prosecutor’s reference to a prior conviction did not in any way unfairly influence the verdict.”
(This opinion is also notable for the court’s holding that a prosecutor’s cross-examination of a defendant using the “so the other witnesses are lying?” technique is not permitted. This is because these questions ask the defendant-witness to “stand in place of the jury by resolving contested facts.”)
Posted by Brennan Sullivan and McKenna
In an opinion filed last week, the Court of Special Appeals vacated a defendant’s conviction for retaliation against a witness and remanded the case for a new trial. The court’s decision recognizes the severe prejudice a defendant must endure when facts about the defendant’s criminal history are elicited to a jury. The opinion in Parker v. State, No. 1351, September Term, 2006. (Filed November 30, 2009) is available here.
The defendant was on trial for the crime of retaliation against a witness. He was convicted by a jury in Washington County, Maryland, and appealed. On appeal, he argued that the trial court erred by refusing to grant a mistrial. Here’s what happened at trial:
Prior to trial, defense counsel (who if I remember correctly was Brian Hutchison or Steve Musselman from the OPD) made a motion in limine to prevent the state from inquiring into the nature of the defendant’s previous “legal proceedings” (the defendant had been convicted of a drug conspiracy). The court granted the motion. Later, the state attempted to cross-examine the defendant on the nature of his prior criminal contacts. The court denied the state’s request.
During the state’s cross-examination of the defendant, this exchange took place:
Q: In fact, Detective Dunkle had investigated you, isn’t that true?
A: That’s correct.
Q: And that investigation led to you being convicted, isn’t that right?
Defense counsel promptly objected and moved for a mistrial. The objection was sustained, but the motion for a mistrial and request to approach the bench to argue the motion were denied.
The Court of Special Appeals held: the defendant’s “request for a mistrial was plainly stated, and the court’s refusal to permit counsel to approach the bench to argue the motion in greater detail effectively denied the motion.”
The Court specifically noted that the reference to the defendant’s prior conviction was an isolated statement intentionally made by the prosecutor despite the trial judge’s instructions and rulings on defense counsel’s motions in limine. In addition, although no curative instruction was requested, the prosecutor “making the reference was person of significant influence in the case.” Because the bulk of the jury’s findings would hinge on the defendant’s credibility, the court held that it could not “conclude beyond a reasonable doubt that the prosecutor’s reference to a prior conviction did not in any way unfairly influence the verdict.”
(This opinion is also notable for the court’s holding that a prosecutor’s cross-examination of a defendant using the “so the other witnesses are lying?” technique is not permitted. This is because these questions ask the defendant-witness to “stand in place of the jury by resolving contested facts.”)
Posted by Brennan Sullivan and McKenna
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