Justice for All

William Wilton Morrisette, III, who who made Virginia legal history by persuading the state supreme court that he had been denied effective representation at his 2001 trial, recently reached a sentencing agreement with the Commonwealth that will spare him the death penalty.

In 2001, Morrisette was convicted of the 1980 capital murder and rape of Dorothy White in Hampton, Virginia.  The case had gone unsolved for 19 years.  In 1999, testing of Ms. White's PERK developed a foreign DNA profile that, when submitted against Virginia's DNA database, resulted in "cold hit" implicating Mr. Morrisette in the crime.  In 2001, a Hampton jury convicted Mr. Morrisette of capital murder and rape, and sentenced him to death for murder and life imprisonment for rape.

In 2005, the Supreme Court of Virginia ruled that Mr. Morrisette had been denied the effective assistance of counsel at the penalty phase of his 2001 trial when his attorneys failed to object to verdict forms that did not accurately reflect Virginia law.  The Court granted a limited writ of habeas corpus and remanded the case to the Hampton Circuit Court for re-sentencing before a new jury.  This represented the first contested capital case in Virginia history in which the state supreme court had sustained a claim of ineffective assistance.

On remand for resentencing, a circuit judge initially reappointed the same lead counsel whom the Virginia Supreme Court had found to have been ineffective, but  the attorney withdrew when Mr. Morissette vehemently objected.

Subsequently, after more than three years of negotiation, Mr. Morrisette entered into a sentencing agreement with the Office of the Commonwealth's Attorney in Hampton.  Under the terms of the agreement, Mr. Morrisette would be sentenced to two consecutive terms of life imprisonment for the murder and rape of Ms. White.  As part of the agreement, Mr. Morrisette agreed to withdraw his federal habeas petition challenging his convictions, and to forego any further appeals or collateral litigation related to his convictions and sentences.  Mr. Morrisette also waived his right to be considered for parole and agreed not to petition for parole.  Effectively, Mr. Morrisette was sentenced to life imprisonment without parole, a sentence that was technically unavailable at the time of the murder.

In a hearing on Wednesday, August 18, 2010, Judge Louis R. Lerner accepting the sentencing agreement and imposed two life sentences.  Mr. Morrisette will be transferred off of death row and into general population to serve his life sentences.

During his re-sentencing trial, Mr. Morrisette was represented by Jeff Russell, Doug Ramseur and Joel Mandelman of the Office of the Capital Defender for Southeast Virginia, Les Smith of Hampton, Michele Brace of the Virginia Capital Representation Resource Center, and Matthew Engle of the Office of the Capital Defender for Northern Virginia.  Matt Engle had argued Mr. Morissette's successful habeas challenge in the Virginia Supreme Court, and stayed with the case despite two subsequent job changes until last week's successful conclusion.  Substantial mitigation investigation was conducted by Jennifer Schweizer of the Southeast Virginia CDO, Ellen Shultz of the Northern Virginia CDO, and Deirdre Enright of the Virginia Capital Representation Resource Center.

Congratulations to the entire Morissette team for guiding this case to a successful conclusion after so many years of effort.

    The defense bar went 2-1 today in a trio of cases further explaining a criminal defendant’s rights in different contexts.   1.      First, one of the two “wins” for the defense.  In a 7-2 decision (Alito and Roberts dissenting) in Spears v. United States, the Court sought to uphold the holding in Kimbrough (the crack cocaine sentencing case).   The Court upheld a federal sentencing court’s right to reject...

Read More "Supreme Court Review January 21, 2009"

In reading through some cases last week, I came across an “oldie but goodie” in State v. Breit.   The expression “extreme prosecutorial misconduct” caught my eye.

In Breit, the New Mexico Supreme Court sets forth a veritable catalogue of forbidden prosecutorial arguments.  The Breit court found the misconduct to be so severe and pervasive that it reversed the convictions and found that double jeopardy barred re-trial of the defendant.  

The Breit court provides a catalogue of errors made by the prosecutors.  The Breit court called the following conduct “extreme misconduct” and “reprehensible conduct of the prosecutor”:

1.      The prosecutor's misconduct began "[b]arely into his opening statement." In his opening, he attempted to inflame the jury with allegations that were irrelevant, matters that could not permissibly be presented as evidence, and exaggerated claims that no evidence could ever support.

a.       When objections were raised and sustained he expressed sarcasm and scorn toward opposing counsel and the court.

2.      During the questioning of witnesses he engaged in improper arguments with witnesses.

a.       On cross-examination, even after direct admonition from the court, he attempted to solicit irrelevant comments from the defendant on the testimony of other witnesses.

3.      He directed belligerent remarks at opposing counsel.

a.       Apparently referring to defense counsel's hand movements as he held an item of evidence, the prosecutor, during a bench conference, uttered an implied threat without provocation: "You wave that at me one more time, sweetheart--" Id. at 8 (Appendix para. 80).

4.      Throughout the trial, in front of the jury, both his tone of voice and nonverbal conduct were highly prejudicial.

a.       He displayed "sarcasm, sneering, rolling of eyes and exaggerated expressions." Id. at 5 (Appendix para. 66).

5.      So pervasive was the prosecutorial misconduct that, had the defense counsel objected at every opportunity, he would have been placed "in the untenable position of appearing to hamper the proceedings and hide evidence from the jury."

6.      The misconduct continued through the closing, even through the rebuttal arguments.

a.       During closing the prosecutor made direct appeals to the sympathies and prejudices of the jury, making comments utterly irrelevant to the facts as they applied to the elements of the alleged crime.

b.      He belittled the defendant's fundamental right to remain silent, and

c.       portrayed his right to counsel as a ploy to avoid punishment.

(i)      In numerous comments he suggested that opposing counsel had engaged in perjury, lying, and collaborating with the defendant to fabricate a defense.

(ii) At one notable moment during closing he declared, "It is not up to the State to show self-defense. That is a legal theory concocted by the defendant and his lawyers to sell to you."

7.      He made numerous statements expressing or implying his personal belief in the guilt of the defendant, the veracity of the witnesses, and the competency and honesty of opposing counsel.

8.      The prosecutor's inappropriate conduct continued even after a new trial was granted. He submitted a motion asking the court to reconsider and withdraw its holding that double jeopardy barred any further prosecution of Breit. Accompanying this motion were affidavits from eleven jurors in which they alleged the prosecutor's actions did not prejudice their decision. Judge Grisham, in a memorandum opinion on this motion, was appropriately outraged.
The most disturbing element of the State's motion is the use of affidavits by jurors in this case. At least by the beginning of this century, if not earlier, there was a near-universal and fairly established common-law rule in the United States which flatly prohibited the admission of jury testimony concerning their verdict. The affidavits filed in this action do not address the issue of whether Mr. Van Arnam's conduct was designed to avoid an acquittal.
She noted that such use of affidavits is forbidden by our rules of evidence. See SCRA 1986, 11-606(B) (1996) (precluding an affidavit by a juror concerning whether the verdict was influenced by anything affecting any juror's mental processes or emotions). By use of such affidavits the prosecutor was trying "to show an absence of manipulation from the very persons who were manipulated."

9.      Moreover, the prosecutor's actions extended beyond the incidents that are recorded in the transcript. As the trial court indicated, the transcript alone cannot "convey the overall atmosphere" of a trial infected by wordless misconduct that would never appear in a court record. The cumulative effect was to deny the defendant a fair trial.

"By destroying the credibility of the defendant and his counsel through unfair, unethical and constitutionally impermissible trial tactics, the prosecutor was attempting to avoid an acquittal at any cost."

Breit moved for new trial based upon the prosecutors’ conduct.   The trial court granted Breit’s Motion for a New Trial and then held that New Mexico principles of double jeopardy would preclude another trial.  

In discussing whether double jeopardy would bar Breit’s retrial the NM Supreme Court wisely adopted the looser Day standard for when prosecutorial misconduct bars a retrial.   Under the Federal double jeopardy standard, set forth in Oregon v. Kennedy, 456 U.S. 667, Breit’s retrial would have been barred only when the “defendant is intentionally goaded into moving for a mistrial.”  Under the double jeopardy protections of the New Mexico Constitution the standard was somewhat different, and forbid Breit’s retrial only in those situations in which “the prosecutorial engaged in any misconduct for the purpose of precipitating a motion for mistrial, gaining a better chance for conviction upon retrial, or subjecting the defendant to the harassment and inconvenience of successive trials.”  State v. Day, 94 N.M. 573 (1980). 

The court went on to point out that under the Federal Kennedy standard, a defendant’s retrial would not be barred unless the prosecutor had engaged in behavior meant (subjectively intended) to make the defendant move for a mistrial.  To the New Mexico Supreme Court the “narrow” Kennedy rule foreclosed a defendant from even being able to argue that he should not be retried if the prosecutorial misconduct did not cause him to move for a mistrial.  This result seemed unjust to the New Mexico Supreme Court. 

The New Mexico Supreme Court explained “we believe, however, that the Kennedy Court improvidently failed to weight the effects of the misconduct of prosecutors who do not subjectively intend to provoke a mistrial.”  Id. at 798. 

The Supreme Court posited an entire series of misconduct that could be hypothetically undertaken by a prosecutor that would not result in the defendant being forced to move for a mistrial.   (Think Brady violations for example).   In these instances, even if the prosecutor was deemed to have committed misconduct, Kennedy would allow for the re trial of the defendant.   The New Mexico Supreme Court believed in these instances “there was no intent to goad the defendant into moving for a mistrial.  In fact, the intention was just the opposite: to prevent the defendant from moving for a mistrial by concealing how he had been wrongfully convicted.” 

The New Mexico Supreme Court echoed Justice Stevens in listed these potential instances where evidence of prosecutorial intent to goad the defendant into moving for a mistrial may be lacking:

(1)                           “a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction.”

(2)                           “another example is when the prosecutor seeks to inject enough unfair prejudice into the trial to ensure a conviction but not so much as to cause a reversal of that conviction.”

The New Mexico Supreme Court held that “Defendants should be protected from re-prosecution once a prosecutor’s actions regardless of motive or intent, rise to such an extreme that a new trial is the only recourse.”  In these instances, the double jeopardy clause of the New Mexico Constitution bars retrial of the defendant, even where the Federal double jeopardy clause, as interpreted in Kennedy, may not. 

Fashioning a new test the New Mexico Supreme Court stated:

When a defendant moves for a mistrial, retrial or reversal because of prosecutorial misconduct: retrial is barred under [the double jeopardy clause of the New Mexico Constitution] when improper official conduct is so unfairly prejudicial to the defendant that is cannot be by means short of a mistrial or a motion for a new trial, and if the official knows that the conduct is improper and prejudicial, and if the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or chipesq@hotmail.com.

In US v. Francisco Medina Castaneda, the Ninth Circuit applied Kimbrough and held that a district court erred when it stated that it could not properly consider the 100:1 sentencing disparity between crack cocaine and powder cocaine.   The Ninth Circuit held that the judge could properly consider the 100:1 disparity in sentencing the defendant and it was error for the judge to state otherwise. 

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or chipesq@hotmail.com.

The USSC announced today that the new rule regarding crack cocaine sentencing has been made retroactive to offenders sentenced before November 1, 2007.  That means that almost 20,000 federal crack cocaine defendants or prisoners are eligible for a re-sentencing and possibly less time. 

It does not mean that a reduction is automatic, nor that someone will file the necessary paperwork, i.e. a Motion pursuant to 18 USC 3582(c)(2) so that the offender may obtain the reduction.

Starting March 3, 2008, offenders will be able to apply for this reduction through the section 3582(c)(2) motion procedure described above.    (The sentencing commission alotted this extra time to deal with the expected deluge of motions).  The public defenders may not have the time or resources to deal with all of these cases, although many seem willing to try.

I am wiling and able to help you or your loved one obtain a re-sentencing on a federal crack cocaine case.  Time is of the essence, if you want the best chance to get a re-sentencing, and maybe to get out soon, you need to start gathering materials to assist the attorney and the attorney needs to begin work on the case, right away.  Call now: 505-766-9000, or in California 619-235-8300.  

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com.

December 12, 2007

The U.S. Sentencing Commission voted unanimously yesterday to give federal inmates incarcerated for crack cocaine offenses a chance to reduce their sentences, paving the way for about 3,800 prisoners to petition for an early release in the next year.

According to an analysis by the commission, 19,500 inmates will be eligible to petition the courts to reduce their sentences. The largest number of those -- more than 1,400 -- were convicted in the U.S. District Court for the Eastern District of Virginia, covering Northern Virginia and the Richmond and Tidewater areas. About 280 inmates convicted in federal courts in Maryland will be eligible, as well as almost 270 prisoners convicted and sentenced in the District.

"Crack cocaine sentences have generally been excessive and unwarranted," said William K. Sessions III, a vice chair of the commission. He went on to quote Judge Reggie B. Walton, who appeared before the commission last month: "I just don't see how it's fair that someone sentenced on October 30th gets a certain sentence when someone sentenced on November 1st gets another."

The commission's vote came a day after the Supreme Court decided that federal district judges are not bound by commission guidelines that created a large disparity in punishments meted out to crack and powder cocaine offenders. The 7 to 2 decision cut across the court's typical ideological divide.

The commission's decisions are its attempts to narrow that gap. That disparity, first written into federal law by Congress in 1986, has long been criticized by some jurists and civil rights advocates because it meant crack cocaine offenders, who tend to be African American, often get longer prison sentences than those convicted of crimes involving powder cocaine, who more often are white.

In March, crack cocaine offenders will be eligible to petition the courts that originally sentenced them to have their prison time reduced. Many could be denied by judges based on certain factors, such as whether they represent a public danger or were convicted for other crimes.

But the change is not a "get out of jail free" card, said commissioner Michael E. Horowitz. "Not everybody is automatically entitled to this reduction," he said, explaining that federal judges, many of whom supported making the guidelines retroactive, will decide cases individually on merit.

What does this all mean?  It means that if you or your loved ones were convicted in federal court of crack cocaine offenses, the time is NOW to petition for a reduction in your sentence.   There are almost 20,000 people who are eligible for this type of reduction.  Do not rot in prison when you do not have to.  Act now!

On March 3, 2008, the first inmates will be eligible to begin applying for reductions.  The average reduction is expected to be around 27 months.   Over 3000 people are eligible to be released in 2008 alone. 

Judges will decide the cases individually.  For that reason, it is important to start gathering materials that will be helpful to the attorney who petitions the court for the reduction. 

Call now for help: 505-766-9000

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com.

Bullet Lead Analysis is Junk Science

Bullet lead analysis, in other words, attempting to match the metallurgic content from one “batch” of bullets to another is almost a totally discredited means of forensic analysis. 

On November 19, 2007, the FBI and criminal defense lawyer groups announced that they will review cases where the bureau used a forensic technique known as compositional analysis of bullet lead (CABL) to secure convictions in criminal cases, particularly murder prosecutions. The technique, which matches bullets from a crime scene to those in a suspect’s possession, was abandoned by the FBI after a 2004 National Research Council report concluded that the technique was flawed in part and that its limitations should be clearly conveyed in court.

Different from ballistics techniques that compare striations on the barrel of a gun to those on a recovered bullet, CABL is used when no gun is recovered, or when bullets are too small or mangled to observe striations. Since the 1960s, expert witnesses have used CABL evidence to testify that bullets found to be analytically indistinguishable probably come from the same “box” or “source.”

CABL has three distinct steps: first, chemical analysis of trace elements in the bullets’ lead ; second, statistical comparison of the lead compositions ; and third, the legal interpretation of data derived from the first two steps. The Research Council report Forensic Analysis: Weighing Bullet Lead Evidence found that the technique the FBI uses for chemical analysis is accurate and reliable but that the statistical tests used to say that two samples of bullets are indistinguishable should be improved.

Variations in the manufacturing process for bullets also sharply limit how CABL findings can be used in court. Every step from smelting the lead to buying the ammunition in a store provides opportunities for bullets with different compositions to be mixed and for bullets with the same composition to be shipped separately to different outlets in a region or to different regions. In fact, the FBI’s own research shows that a single box of ammunition can contain as many as 14 distinct compositional groups.

The report concludes that it is important that criminal justice and legal professionals, as well as juries, understand both the capabilities and limitations of this forensic technique.

An excellent article about bullet lead ‘science’ and its flaws:

From the Washington Post:

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/18/AR2007111801539.html?wpisrc=newsletter

From CBS News:

http://www.cbsnews.com/stories/2007/11/16/60minutes/main3512453.shtml

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com.

The Ninth Circuit Gives Teeth to Chambers and Brecht.

In a remarkable holding, the Ninth Circuit reversed a murder conviction because of the cumulative effect of multiple errors in a trial, when each one of the errors, individually may not have been reversible error. 

In Parle v. Runnells, the Ninth Circuit, reversed Mr. Parle’s conviction for killing his wife.  Parle did not contest that he killed his wife, the only issue was his state of mind at the time of the killing.    The trial court excluded certain key evidence about his wife’s violent nature, and excluded key expert testimony about the effect of bi-polar disorder on the issue of ability to premeditate and premeditation itself.   The trial court made matters worse when it admitted certain privileged psychotherapist-patient communications against Parle. 

Parle was convicted of first degree murder for the killing of his wife. The only issue in dispute was Parle's state of mind, Parle's defense being that, at most, the killing was second degree. At trial, the court improperly admitted damaging testimony from Parle's psychiatrist but excluded evidence of an expert psychiatric witness and admitted evidence of Parle's threat to a peace officer five years prior but excluded evidence of his wife's verbalized threats against Parle a few days before the killing. The California Court of Appeal agreed that there were numerous and serious errors but upheld the conviction, concluding that the errors, both individually and collectively, were harmless because the included/excluded evidence was essentially cumulative and it was not probable a different verdict would have occurred but for the errors. The Court of Appeals here observed that the improperly admitted evidence bolstered the theory offered by the prosecution whereas Parle's defense was rendered less persuasive as a result of evidence being erroneously excluded. As a result of this denial of due process, it affirmed the district court's granting of Parle's habeas petition, noting that although the California Court of Appeal's decision identified the correct governing legal principle, it unreasonably applied it to the facts of the case.

The Ninth Circuit held:

cumulative error warrants habeas relief only where the errors have ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ [citations] Such ‘infection’ occurs where the combined effect of the errors had a ‘substantial and injurious effect or influence on the jury’s verdict.’ [citations]

…

The fundamental question in determining whether the combined effect of trial errors violated a defendant’s due process rights is whether the errors rendered the criminal defense ‘far less persuasive”, and thereby had a “substantial and injurious effect or influence” on the jury’s verdict.” 

The Ninth Circuit had little difficulty finding the Brecht standard met.  The court explained:

“[A] unique and critical thread runs through the trial errors in this case: all of the improperly excluded evidence in Parle’s case – i.e. expert testimony about the effects of a bipolar manic episode on one’s state of mind, the victim’s previous threats and history of violence, and Parle’s father’s testimony about Parle’s appearance and demeanor immediately before and after the crime – supported Parle’s defense that he lacked the requisite state of mind for first degree murder; at the same time all of the erroneously admitted evidence –i.e. Parle’s psychiatrist’s testimony in violation of privilege about Parle’s minor bipolar disorder and relative stability in treatment, and evidence of Parle’s violent threats to a police officer – undermined Parle’s defense and credibility and bolstered the State’s case . . . given the plainly one-sided prejudice resulting from these errors and their direct relevance to the only contested issue before the jury, the state’ court’s conclusion to the contrary was objectively unreasonable. ”

This is a great case setting for the standard for a Chambers Brecht combined error.  The Chambers doctrine is one that is infrequently dusted off.    Keep objecting trial counsel, maybe all of the errors combined, while not individually will get your client a new trial if convicted. 

The full case may be found at:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D32632775752B5048825737000539587/$file/
0616780.pdf?openelement

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com.

Late on Halloween night, the United States Supreme Court stepped in and issued an order stopping a Mississippi defendant's execution by lethal injection.  This move has been hailed as a virtual moratorium on the carrying out of a death penalty by lethal injection in the United States. 

The Supreme Court has already agreed to review the Constitutionality of the lethal injection method of carrying out the death penalty.  The Court will review whether the three drug "cocktail" that is currently in use across the United States is itself cruel and unusual punishment forbidden by the 8th Amendment.   The Case in which they will review the lethal injection protocol is called Baze v. Rees. 

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

As reported in the Washington Post:

Federal defendants sentenced to mandatory minimum sentences for crack offenses may be given a chance to apply for reduced sentences.    This Spring, the United States Sentencing Commission, which establishes guidelines for offenders in federal cases, established more lenient guidelines for future crack cocaine offenders.  The commission is currently meeting to discuss whether these new guideline will be made retroactive to defendants already in prison. 

Read full article here:

http://www.washingtonpost.com/wp-dyn/content/article/2007
/11/12/AR2007111201745.html?hpid=topnews

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

http://www.blacklistednews.com/view.asp?ID=4596

The U.S. House of Representatives recently passed HR 1955 titled the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007. This bill is yet another attack against the Constitution yet and actually defines thought crimes as homegrown terrorism. If passed into law, it will also establish a commission and a Center of Excellence to study and defeat so called thought criminals. Unlike previous anti-terror legislation, this bill specifically targets the civilian population of the United States and uses vague language to define homegrown terrorism. Amazingly, 404 of our elected representatives from both the Democrat and Republican parties voted in favor of this bill. There is little doubt that this bill is specifically targeting the growing patriot community that is demanding the restoration of the Constitution.

First let’s take a look at the definitions of “violent radicalization” and “homegrown terrorism” as defined in Section 899A of the bill.

The definition of “violent radicalization” uses vague language to define this term of promoting any belief system that the government considers to be an extremist agenda. Since the bill does not  specifically define what an “extremist belief” system is, it is entirely up to the interpretation of the government.  The government according to this definition can define whatever they want as an extremist belief system. Essentially they have defined violent radicalization as thought crime. The definition as defined in the bill is shown below.

`(2) VIOLENT RADICALIZATION- The term `violent radicalization' means the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.

The definition of “homegrown terrorism” uses equally vague language to further define thought crime. The bill includes the planned use of force or violence as homegrown terrorism which could be interpreted as thinking about using force or violence. Not only that but the definition is so vaguely defined, that petty crimes could even fall into the category of homegrown terrorism. The definition as defined in the bill is shown below.

`(3) HOMEGROWN TERRORISM- The term `homegrown terrorism' means the use, planned use, or threatened use, of force or violence by a group or individual born, raised, or based and operating primarily within the United States or any possession of the United States to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives.

Section 899B of the bill goes over the findings of Congress as it pertains to “homegrown terrorism.” Particularly alarming is that the bill mentions the Internet as a main source for terrorist propaganda. The bill even mentions streams in obvious reference to many of the patriot and pro-constitution Internet radio networks that have been formed. It also mentions that homegrown terrorists span all ages and races indicating that the Congress is stating that everyone is a potential terrorist. Even worse is that Congress states in their findings that they should look at draconian police states like Canada, Australia and the United Kingdom as models to defeat homegrown terrorists. Literally, these findings of Congress fall right in line with the growing patriot community.

The biggest joke of all is that this section also says that any measure to prevent “violent radicalization” and “homegrown terrorism” should not violate the constitutional rights of citizens. However, the definition of violent radicalization and homegrown terrorism as they are defined in section 899A are themselves unconstitutional. The Constitution does not allow the government to arrest people for thought crimes, so any promises not to violate the constitutional rights of citizens is already broken by their own definitions.

`SEC. 899B. FINDINGS.

`The Congress finds the following:

`(1) The development and implementation of methods and processes that can be utilized to prevent violent radicalization, homegrown terrorism, and ideologically based violence in the United States is critical to combating domestic terrorism.

`(2) The promotion of violent radicalization, homegrown terrorism, and ideologically based violence exists in the United States and poses a threat to homeland security.

`(3) The Internet has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens.

`(4) While the United States must continue its vigilant efforts to combat international terrorism, it must also strengthen efforts to combat the threat posed by homegrown terrorists based and operating within the United States.

`(5) Understanding the motivational factors that lead to violent radicalization, homegrown terrorism, and ideologically based violence is a vital step toward eradicating these threats in the United States.

`(6) The potential rise of self radicalized, unaffiliated terrorists domestically cannot be easily prevented through traditional Federal intelligence or law enforcement efforts, and requires the incorporation of State and local solutions.

`(7) Individuals prone to violent radicalization, homegrown terrorism, and ideologically based violence span all races, ethnicities, and religious beliefs, and individuals should not be targeted based solely on race, ethnicity, or religion.

`(8) Any measure taken to prevent violent radicalization, homegrown terrorism, and ideologically based violence and homegrown terrorism in the United States should not violate the constitutional rights, civil rights and civil liberties of United States citizens and lawful permanent residents.

`(9) Certain governments, including the United Kingdom, Canada, and Australia have significant experience with homegrown terrorism and the United States can benefit from lessons learned by those nations.

Section 899C calls for a commission on the prevention of violent radicalization and ideologically based violence. The commission will consist of ten members appointed by various individuals that hold different positions in government. Essentially, this is a commission that will examine and report on how they are going to deal with violent radicalization and homegrown terrorism. The bill requires that the commission submit their final report 18 months following the commission s first meeting as well as submit interim reports every 6 months leading up to the final report. Below is the bill’s defined purpose of the commission. Amazingly they even define one of the purposes of the commission to determine the causes of lone wolf violent radicalization.

(b) Purpose- The purposes of the Commission are the following:

`(1) Examine and report upon the facts and causes of violent radicalization, homegrown terrorism, and ideologically based violence in the United States, including United States connections to non-United States persons and networks, violent radicalization, homegrown terrorism, and ideologically based violence in prison, individual or `lone wolf' violent radicalization, homegrown terrorism, and ideologically based violence, and other faces of the phenomena of violent radicalization, homegrown terrorism, and ideologically based violence that the Commission considers important.

`(2) Build upon and bring together the work of other entities and avoid unnecessary duplication, by reviewing the findings, conclusions, and recommendations of--

`(A) the Center of Excellence established or designated under section 899D, and other academic work, as appropriate;

`(B) Federal, State, local, or tribal studies of, reviews of, and experiences with violent radicalization, homegrown terrorism, and ideologically based violence; and

`(C) foreign government studies of, reviews of, and experiences with violent radicalization, homegrown terrorism, and ideologically based violence.

Section 899D of the bill establishes a Center of Excellence for the Study of Violent Radicalization and Homegrown Terrorism in the United States. Essentially, this will be a Department of Homeland Security affiliated institution that will study and determine how to defeat thought criminals.

Section 899E of the bill discusses how the government is going to defeat violent radicalization and homegrown terrorism through international cooperation. As stated in the findings section earlier in the legislation, they will unquestionably seek the advice of countries with draconian police states like the United Kingdom to determine how to deal with this growing threat of thought crime.

Possibly the most ridiculous section of the bill is Section 899F which states how they plan on protecting civil rights and civil liberties while preventing ideologically based violence and homegrown terrorism. Here is what the section says.

`SEC. 899F. PROTECTING CIVIL RIGHTS AND CIVIL LIBERTIES WHILE PREVENTING IDEOLOGICALLY-BASED VIOLENCE AND HOMEGROWN TERRORISM.

`(a) In General- The Department of Homeland Security's efforts to prevent ideologically-based violence and homegrown terrorism as described herein shall not violate the constitutional rights, civil rights, and civil liberties of United States citizens and lawful permanent residents.

`(b) Commitment to Racial Neutrality- The Secretary shall ensure that the activities and operations of the entities created by this subtitle are in compliance with the Department of Homeland Security's commitment to racial neutrality.

`(c) Auditing Mechanism- The Civil Rights and Civil Liberties Officer of the Department of Homeland Security will develop and implement an auditing mechanism to ensure that compliance with this subtitle does not result in a disproportionate impact, without a rational basis, on any particular race, ethnicity, or religion and include the results of its audit in its annual report to Congress required under section 705.'.

(b) Clerical Amendment- The table of contents in section 1(b) of such Act is amended by inserting at the end of the items relating to title VIII the following:

It states in the first subsection that in general the efforts to defeat thought crime shall not violate the constitutional rights, civil rights and civil liberties of the United States citizens and lawful permanent residents. How does this protect constitutional rights if they use vague language such as in general that prefaces the statement? This means that the Department of Homeland Security does not have to abide by the Constitution in their attempts to prevent so called homegrown terrorism.

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

A Trial court in Maryland has refused to allow admission of certain fingerprint evidence finding that it fails FRYE.  Specifically, the court found that the ACE-V method of making fingerprint ‘matches’, the most commonly used method, did not rest on a sufficiently reliable factual foundation to allow its admission.

In State v. Bryan Rose, the State sought to use certain latent fingerprints identified as Mr. Rose’s using the ACE-V method.  The Court rejected as insufficient each part of the A-C-E, V, acronym.

The A in ACE-V stands for ‘analysis.’  The Maryland court faulted the methodology as lacking any real objective analysis whatsoever.  Among the flaws in the so-called analysis, “The ACE-V methodology does not require the examiner to create a written record of the analysis even though preparing a written analysis prior to Comparison promotes objectivity and removes the opportunity for anyone to suggest that one is seeing friction ridge details where none exist.”

The C in ACE V stands for ‘comparison.’  The Maryland court noted that the so-called comparison is completely subjective and that there are no “standards or protocols that a comparison be conducted on a particular scale.”

The E in ACE-V stands for ‘evaluation.’   The Maryland court correctly noted that in terms of a “match”, “There is no scientific basis for requiring that a predetermined number of predetermined number of corresponding friction ridge details be present to effectuate [a match].” 

The V in ACE-V stands for ‘verification.’  The Maryland court described the claim that the ‘verification’ was ‘independent’ as “not credible.”  First, “verifiers” consult with the first examiners.  Moreover, verifiers are told of the first identification.  The Court found that under any reasonable definition, the verification is a subjective, tainted process, skewed with bias.

The court rejected the state’s pleas to admit the evidence.  The State’s argument was essentially, “we have been doing it this way all these years, so it must be scientific enough to be admissible.”  The Court rejected that argument stating bluntly “for many centuries, perhaps millennia, humans though that the earth was flat.  The idea has a certain intuitive appeal.  Indeed, there still exists a Flat Erath Society for people who cling to the idea that the Earth is not an orb.  But science has proved that the Earth is not flat, and it is the type of fact of which a court can take judicial notice.”    The court stated “the long history of use does not itself establish its reliability.”

In rejecting the State, the court cited a similar case from the Florida Supreme Court which challenged the admission of expert testimony to the effect that the defendant’s knife was the one that made a certain wound to the exclusion of all other knives in the world.  The Florida Supreme Court had rejected this dubious scientific opinion, finding problems almost identical with the ACE-V method of fingerprint examination.   The Maryland court, echoing the Florida Supreme Court, found the flaws in the science included:

1.     The determination was subjective;

2.     there are no minimum number of matching prints or other objective criteria;

3.     no notes are required so there is no documentation of the expert’s work;

4.     matches are made with absolute certainty, exceeding the certainty of DNA testing;

5.     no testing or verification by independent means;

6.     no meaningful peer review;

7.     no error rate quantified;

The ACE-V method suffered from ALL of these flaws and therefore could not be admitted against defendant Bryan Rose. 

What does this all mean?  As defense counsel, we should be challenging the admission of every fingerprint analysis.   The science is not science at all.  The Maryland court focused on the perceived, and indeed attested to, infallibility of the ACE-V method.  Get you fingerprint examiner to admit the same things: (a) no objective standards for declaring a “match”, (b) no independent review of matches, and (c) no error rate (i.e. the test is infallible). 

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia.   He has been in private practice with his own firm for six years.  Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

A new report issued yesterday by scientists in England suggests that human being may have been responsible for the demise of the Neanderthals.   Previously, it was thought that the Neanderthals died off because of extreme climate pressures including a mini ice age. 

A new core sample of earth that was taken deep from the ocean floor casts doubt on the climate hypothesis.  Studies by Konrad Hughen of the Woods Hole Oceanographic Institution in Massachusetts have shown that layers of that core -- undisturbed for millennia because the lack of oxygen kept worms and bugs from reaching them -- can tell with uncanny resolution what the climate was like in the Northern Hemisphere.

Hughen and his colleagues used the core to determine the climate in Gibraltar, where the most recent remnants of Neanderthal culture have been found. They focused on three time periods: 28,000 and 32,000 years ago (when, according to the best evidence, Neanderthals died out) and 24,000 years ago (when, according to one controversial estimate, the last Neanderthals died).

Climate was moderate during all three of those periods, they found, with extreme cold not arriving until about 21,000 years ago.

"I find the work both novel and solid," said Jan Heinemeier, a physicist who does carbon dating at the University of Aarhus, Denmark.

A gradual cooling of northern Europe may have played a role by pushing modern humans south, but from there either warfare or competition for resources must have been key, Hughen said.

"They survived 20,000 years of very unstable climate. Then when you add humans to the mix, they are gone within 10,000 years," Hughen said. "You tell me what the most parsimonious explanation is."

Whodunit?  Humans!

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

The Report on the April 16th Shootings at Virginia Tech has been released.  It faults University administrators and officials for several aspects of there response on that tragic date.  In particular, the reports faults a certain unnamed professor for failing to immediately call university police when he found Cho's bomb threat note that stated that if the doors to Norris Hall were opened a bomb would erupt.  

Read the full report here:

http://www.governor.virginia.gov/
TempContent/techPanelReport.cfm 

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or (619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Apparently, attorneys for Michael Vick have entered into some sort of negotiations with prosecutors in his dog fighting case. Prosecutors may have set Friday as an unofficial deadline to accept a deal; if not indications are that Vick may be indicted again with more, and potentially more serious counts added against him.

On co-defendant, Tony Taylor has already pleaded guilty and is presumably cooperating with investigators so that he may receive the maximum consideration under USSG 5K1.1 Vick's remaining co-defendants, Purnell Peace and Quanis Phillips, are scheduled to plead guilty on Friday.

See full story here:

http://www.washingtonpost.com/wp-dyn/content/article/2007/08/
14/AR2007081401596.html?hpid=moreheadlines



Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Yesterday, August 6, 2007, the United States Court of Appeal for the Fourth Circuit held that a criminal defense attorney committed ineffective assistance of counsel when he advised his client to plead guilty to federal felon in possession of a firearm charges when the record and evidence revealed that the client may have had a justification defense.

During an argument with his girlfriend, the defendant's girlfriend aimed a firearm at the defendant. In response he took the firearm from her, and walked to a nearby bar where police were waiting. He immediately turned over the gun to police upon there arrival.

Counsel for the defendant advised the defendant that there was no defense to his crime and he ultimately pleaded guilty and was sentenced to 15 years in prison

The problem was that the justification defense was available for felon in possession of a firearm charges (18 USCA 922) and EVERY circuit which addressed the issue had held the defense available. Counsel was just plain wrong in his advice, he simply did not know that the defense was available to these charges.

This case underscores the importance of hiring or otherwsie obtaining knowledgeable counsel for your case. If this defendant had a knowledgable attorney, it may not have cost him 4 years of his life (he had been arrested on August 2, 2002).

See full case here:

http://caselaw.lp.findlaw.com/data2/circs/4th/067565p.pdf






Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Mr. Venie's website can be found at http://www.anothernotguilty.com

Today, with little fanfare, President Bush signed into law a bill that allows for expanded warrantless wiretapping of American's cell phone calls and emails, so long as those calls or emails have some nexus to another country.


Read more:

http://www.washingtonpost.com/wp-dyn/content/
article/2007/08/05/AR2007080501404.html?hpid=sec-nation

Yesterday, I wrote about the United States v. Dazey, a case in which the Tenth Circuit held that enhancing a defendant's sentence by using facts found by a judge by preponderance (rather than a jury) does not violate the Sixth Amendment.

In response to the Dazey court, I wrote "This cannot be what the Sixth Amendment and Booker (which of course is based on Apprendi and Blakely) meant. If the Dazey court's interpretation of Booker were sound, a federal judge could still enhance a defendant's sentence outside of the presumptive USSG range and outside of the statutory maximum for the offense and so long as the district judge stated on the record that he or she was enhancing the defendant's sentence because he or she wanted to, not because he or she was commanded by the law to impose a certain sentence."

In United States v. Ruhbayan, the Fourth Circuit demonstrates why the Dazey court's holding was not fully complete and may be wrong. In Ruhbayan, the defendant was convicted of perjury and obstruction of justice in connection with a criminal trial. Even though Ruhbayan's indictment specified that he was charged under 18 USC 1512(b), which had a maximum sentence of only ten years, the district judge sentenced him to life in prison pursuant to 18 USC 1512(j). Ruhbayan, unlike Scooter Libby, received a life sentence pursuant to 18 USC 1512(j) for suborning perjury in his first criminal trial.

The Fourth Circuit upheld the sentence. The reasoning was based upon the fact that Ruhbayan's indictment did incorporate language from 1512(j), namely that the pejury or obstruction of justice occurred in a criminal trial. Because of this language, the jury implicitly made the finding beyond a reasonable doubt that Ruhbayan's conduct occurred during a prior criminal trial when it convicted him of the offense in the second indictment.

Therefore, the judge was free to impose life, a life sentence, afterall is stautorily authorized upon conviction of 1512(j).

The Fourth Circuit explained:

First, because Count Two of the 2002 indictment alleged the elements of the § 1512 offense and fairly informed Ruhbayan of the charge, it was sufficient to enable him to plead double jeopardy in any subsequent prosecution. See United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998) ("To pass constitutional muster, an indictment must (1) indicate the elements of the offense and fairly inform the defendant of the exact charges and (2) enable the defendant to plead
double jeopardy in subsequent prosecutions for the same offense."). Second, Count Two specified that Ruhbayan’s conduct occurred in connection with the First Trial. Indeed, the jury in the Second Trial was instructed on Count Two as follows:

Count 2 of the indictment charges that in or about May through August of 2000, . . . Ruhbayan[ ] did knowingly and corruptly persuade . . . Goodman[ ] to testify falsely in an official proceeding, namely his pending criminal trial in the United States District Court for the Eastern District of Virginia at Norfolk, entitled United States v. Ruhbayan, Criminal Number 2:00cr86, with intent to influence the testimony of that person in an official proceeding, namely his criminal trial, in violation of Title 18 of United Sates Code, Section 1512(b)(1).

Clearly, the issue of whether the conduct charged in Count Two occurred in connection with a criminal trial was a fact that would increase the penalty for that offense beyond the maximum Ruhbayan otherwise faced under § 1512(b). For that reason, that factual issue was appropriately submitted to the jury. The indictment and the instructions each identified the Count Two offense as related to the First Trial, and the jury could not have returned a guilty verdict thereon without so finding. Ruhbayan was thus subject to a maximum of life imprisonment under § 1512(j), because an offense charged in the First Trial involved use of a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). (citations omitted)

Because the trial court properly submitted to the jury the factual issue of whether the Count Two offense occurred in connection with the First Trial, no Apprendi error occurred. The sentencing court thus properly determined that the statutory maximum penalty on Count Two was life in prison.

This is the correct application of Apprendi, the 10th Circuit's holding in Dazey is imprecisely written or just plain incorrect.




Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

Yesterday, August 3, 2007, the Senate voted 60-28 to authorize expanded wiretapping of US citizens.

Joseph Lieberman former vice presidential candidate, stated in support of the bill "We're at war. The enemy wants to attack us . . .This is not the time to strive for legislative perfection." Apparently.

The new bill, if it becomes law, expands the government's power to wiretap telephone calls and emails if they are coming from or going to, an overseas location. Privacy advocates accused the Democrats of selling out and charged that this bill gives the government more authority than it had under a controversial warrantless wiretapping program begun in secret after the 2001 terrorist attacks. Under that program, the government could conduct surveillance without judicial oversight only if it had a reason to believe that one party to the call was a member of or affiliated with al-Qaeda or a related terrorist organization. This bill drops that condition, they noted.

Americans had better get used to the fact that if they call or email someone overseas the NSA is listening in.

In United States v. Dazey, the Tenth Circuit upheld a district court's sentence that was based upon facts found by preponderance b y a district judge. The Dazey court re-affirmed pre Booker case law and determined:

"For the reasons stated in Dalton and Magallanez, the district court applied the correct standard in evaluating the factual evidence related to Dazey's sentencing enhancements. As this court has explained, "Constitutional Booker error occurs when the district court re[lies] on judge-found facts . . . to enhance a defendant's sentence mandatorily." Dalton, 409 F.3d at 1252 (quotation omitted). It is only the mandatory application of enhancements that create constitutional problems, not the manner in which the facts underlying the enhancements are found."

This cannot be what the Sixth Amendment and Booker (which of course is based on Apprendi and Blakely) meant. If the Dazey court's interpretation of Booker were sound, a federal judge could still enhance a defendant's sentence outside of the presumptive USSG range and outside of the statutory maximum for the offense and so long as the district judge stated on the record that he or she was enhancing the defendant's sentence because he or she wanted to, not because he or she was commanded by the law to impose a certain sentence.



Click here for entire opinion:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&
navby=docket&no=056258




Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

In Fry v. Pliler, (a link to the complete decision is set forth below), the United States Supreme Court redefined the rules that are going to be applied on federal habeas (2254) when the defendant claims that the state trial court denied him the right to present certain evidence.

In Fry, the defendant claimed that the trial court denied him the right to present the testimony of a witness who would have testified to certain statements made by a third party that suggested that he, the third party, was the actual perpetrator of the crime.

The defendant got convicted and appealed to the California Court of Appeal. The California Court of appeal affirmed the conviction, but did not specify whether the court analyzed the error under the Chapman "harmless beyond a reasonable doubt" standard or the Brecht "substantial and injurious effect standard."

The United States Supreme Court held that a federal court must examine the prejudicial impact of constitutional error in a state court criminal trial under Brecht's standard, whether or not the state reviewing courts analyzed the error for harmlessness beyond a reasonable doubt under Chapman v. California.

What does all this mean? It means that if a defense attorney is denied the right to present certain evidence in a state court trial, that defense attorney can and should cite this case as the proper standard that federal habeas courts will use to examine the trial court's rulings.

Federal constitutional errors in state court trials are always going to be reviewed on federal habeas to determine if that error resulted in a substantial and injurious effect or influence on the verdict, rather than if the error was harmlessness beyond a reasonable doubt. This standard is "less onerous" for defendants than the Chapman standard.

The Chapman standard still applies on Supreme Court DIRECT review of state criminal convictions.


Link to decision:
http://www.supremecourtus.gov/opinions/06pdf/06-5247.pdf


See how Mr. Venie can help you at his website:

ANOTHERNOTGUILTY.COM

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

The Supreme Court ruled on June 14, 2007, that a federal habeas petitioner (murder defendant) who relied on the district court's wrong statement regarding the deadline for filing a notice of appeal had no right to relief and no avenue of appeal.

The Court stated that the rules relating to the taking of appeal in a civil case are mandatory and jurisdictional. The appellant petitioner's failure to timely file a NOA, even when the district court erroneously told him he did have time to file, divested that appellate court of jurisdiction to hear the habeas petition, and the district court of jurisdiction to deem the NOA timely filed as an equitable matter.

The practical effect of this is that habeas or appellate counsel must timely file the NOA in denial of 2254 petitions and CANNOT rely upon a district court's statements regarding the deadline.

Bowles v. Russell:

http://supreme.justia.com/us/new-cases/06-5306.pdf






Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or chipesq@hotmail.com.

The Ninth Circuit has ruled that crimes committed upon boats seized off of the coast of South America cannot provide a sufficient jurisdictional nexus for federal prosecution in San Diego, California.

In US v. Perlaza, the Ninth Circuit held that certain defendants cannot be prosecuted in federal court in the United States without a sufficient jurisdictional nexus. There is also a discussion of prosecutorial misconduct in this opinion. See below:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/998F96BF16F626B18825713000771550/
$file/0250084.pdf?openelement

In a remarkable report that received little fanfare, the Department of Defense issued a report over two years ago that defined Global Warming as the single greatest threat to United States national security. Read below:




http://www.grist.org/pdf/AbruptClimateChange2003.pdf

Sgt. Jose Estrada, a recently returned (Jan. 2006) Iraq veteran is facing charges that he "wilfully failed to appear" because he went to Iraq to serve in Operation Iraqi Freedom.

Estrada was initially charged with domestic violence offenses. The alleged victim in the case came to court and testified three times under oath that the incident did not happen as alleged. There were three witnesses to the crime, two said Estrada did not do it, the third was a six year old girl who would not see where the crime allegedly happened (in the closet of a bedroom). Instead of dismissing the case, the DA persisted.

Sgt. Estrada waited for his day in Court. The DA continued the case on the final date set for trial. Sgt. Estrada was ordered to report to Ft. Lewis Washington for deployment to Iraq. He went and served in Fallujah among other places.

Sgt. Estrada returned and within days contacted the Court and put his case on calender so that he could resolve the matter. The DA was forced to dismiss the domestic violence case because the witnesses left town, but immediately the DA issued charges in a second case for "failing to appear" on the first case.

Sgt. Estrada wants to continue in the military and continue to serve on active duty, but he now has this cloud hanging over his head. Veterans should not be treated like this. If you feel this is wrong, please let you feelings be known. Send an email to Bonnie Dumanis, the district attorney of San Diego:

publicaffairs@sdcda.org

or call her office at:

619-531-4040

Ms. Dumanis is by and large a reasonable prosecutor. Make your voice heard.

The US Supreme Court agreed to accept review of People v. Black the California Supreme Court case that upheld California's determinate sentencing scheme against a Blakely challenge.

Very soon we will know what all those California courts that are requiring Blakely waivers, already know: that California's scheme which allows a judge to aggravate a sentence is unconstitutional.

see summary of recent developments in People v. Black click below:

http://www.fdap.org/blakely4.html

Today the Ninth Circuit, the top appeals Court for most western states, slammed the door shut on thousands of federal prisoners who were holding out hope that Blakely would be applied retoactively in the West as Crawford had been held to be a few months prior.

In Schardt v. Payne, the Court held the Blakely rule did not fall within the Teague v. Lane exception permitting retroactive application of certain rules. The Court marches through a pretty thorough analysis and collects cases.

See full text here:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
42AEDE6841B771188825703700817B64
/$file/0236164.pdf?openelement

Yes. There is no logical reason to distinguish between the standards for counsel enunicated in Rompilla v. Beard and Wiggins v. Smith.

Rompilla, you will remember is the very recent case which held an attorney in a capital case per se

The court rebuked the Rompilla defense attorney in the strongest terms possible. The Court stated it was "more than common sense" that defense counsel must review and obtain information that the state has and will use against the defendant. The Court explained that "It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the Court house open for the asking."

See full text of Rompilla decision below:

http://a257.g.akamaitech.net/7/257/2422/20jun20051200/
www.supremecourtus.gov/opinions/04pdf/04-5462.pdf

There is no logical or legal reason to distinguish between capital and non-capital cases for purposes of the Rompilla rule. Counsel should be held per se ineffective for failing to discover and review evidence in Court files that either exculpates or that the prosecution intends to use to aggravate the defendants' sentence. Counsel has to be held responsible for at least looking at court files. ineffective for failing to discover and review aggravating evidence that was in Court files which the prosecution had indicated that it intended to use against the defendant.

In a remarkable case this week, the California Supreme Court reversed the California Court of Appeal when it held that a defendant's failure to object to a witness asserting the Fifth Amendment waives the issue on appeal. The specific evidentiary issue was whether a trial court errs when it admits the prior preliminary hearing testimony of a witness who invokes the privilege against self incrimination at trial. (NO) That seems like a straight forward ruling however, what is important is that the CASC fleshes out further when and under what circumstances a person may assert the Fifth Amendment privilege against self-incrimination.

In People v. Seijas (full text below), the CASC applied Hoffman and Ohio v. Reiner in California. The Seijas court stated:

In an oft-cited case, the high court stated that this privilege “must be accorded liberal construction in favor of the right it was intended to secure.” (Hoffman v. United States (1951) 341 U.S. 479, 486.) A witness may assert the privilege who has “reasonable cause to apprehend danger from a direct answer.” (Ibid.; accord, Ohio v. Reiner (2001) 532 U.S. 17, 21) However, “The witness is not exonerated from answering merely because he declares that in doing so he would incriminate himself—his say-so does not of itself establish the hazard of incrimination.” (Hoffman v. United States, supra, at p. 486.) The court may require the witness “to answer if ‘it clearly appears to the court that he is mistaken.’ ” (Ibid.) “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Id. at pp. 486-487.) To deny an assertion of the privilege, “the judge must be ‘ “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency” to incriminate.’ ” (Malloy v. Hogan (1964) 378 U.S. 1, 12, quoting Hoffman v. United States, supra, at p. 488.)
California’s Evidence Code states the test broadly in favor of the privilege: “Whenever the proffered evidence is claimed to be privileged under Section 940 [the privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404, italics added.) We have said that this section incorporates the standard of Hoffman v. United States, supra, 341 U.S. 479. (People v. Ford (1988) 45 Cal.3d 431, 441-442; see also People v. Cudjo, supra, 6 Cal.4th at p. 617.)

Applying the facts to the case before it, The seijas court held that one of the witnesses to the crime, a 13 year old who may (or may not) have had gang ties and who was in the car with the alleged murderers just before the crime, rightly fully asserted the privilege.

Full Text, People v. Seijas:

http://caselaw.lp.findlaw.com/data2/californiastatecases/
s123790.doc

In PDF: http://caselaw.lp.findlaw.com/data2/
californiastatecases/s123790.pdf

This means that if you have a case going to trial where any of the witnesses have even the slightest Fifth Amendment problem you should demand those witnesses be given immunity before testifying. Every effort should be made to object to the witness testifying (if that is a tactical advantage). If you can object that the crimes that the prosecution purports to immunize are not federal crimes. In other words, object that the state prosecutor cannot possibly immunize from federal crimes and for that reason the state immunity is not good enough. (State drug crimes can apparently always be made federal drug crimes in the wake of the ruiling in Gonzales v. Raich).

If the witness is granted state Kastigar immunity, you must demand federal immunity as well. The state prosecutor will cite Murphy v. Waterfront Commission, 378 U.S. 52 (1964). The state prosecutor will argue that Murphy stands for the proposition that state court immunity is good enough, in other words, if the state promises Kastigar immunity to a witness that witness can essentially estop the federal government from prosecuting in the wake of a state immunity agreement. Moreover, Murphy can be easily distinguished and/or blunted.

Murphy creates a federal constitutional exclusionary rule in this context: when a state witness is compelled to give testimony in a state proceeding under a grant of immunity the "Federal Government must be prohibited from making any such use of compelled testimony and its fruits." This means that a witness should be able to keep out the compelled testimony from "other" criminal and quasi-criminal proceedings. However, the Murphy rule has never been applied by the Supreme Court to at least two contexts: the courts martial and the immigration deportation or removal because of criminal conviction. If the potential witness has exposure on either of these two grounds, that witness should be able to assert the Fifth even with a grant of Kastigar immunity and a federal immunity letter (or in the alternative, a state court ruling that the Murphy exclusionary rule applies).

This past week, in United States v. Barken, the Ninth Circuit again reversed a sentence imposed for environmental crimes. The Court held that because the district court had held that the application of the guideline was in fact mandatory that court committed plain error. The defendant did not object to imposition of certain enhancements at trial based upon Blakely/Sixth Amendment grounds. However, that was not held against Barken based upon plain error.


Full text, United States v. Barken:

http://caselaw.lp.findlaw.com/data2/circs/9th/0350441p.pdf

Judges M. Luttig and J. Harvie Wilkinson of the Fourth Circuit are often mentioned as possible replacements for Justice O'Connor. Federalism, and what it means in the wake of the Raich

It seems like Luttig's reasoning in the dissent below (Gibbs v. Babbitt) would suggest that he would have voted to invalidate the marijuana regulation in question in Gonzales v. Raich.
In Gibbs, Judge Luttig dissented from a decision holding that a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land was within the commerce power. Judge Luttig argued that the killing of a small number of wolves did not have a "substantial effect" on interstate commerce required by Lopez and Morrison. The case has received media attention because of the criticism of Judge Luttig's views in the majority opinion written by Judge Wilkinson. Judge Wilkinson argued that Judge Luttig "would rework the relationship between the judiciary and its coordinate branches" by allowing courts to invalidate laws based on "a judge's view of the wisdom of enacted policies."

Judge Luttig's view of the substantial effects test cannot be reconciled with his mentor, Scalia's opinion in Gonzales v. Raich. For starters, the grey wolf taking regulation in question in Gibbs IS part of a larger regulation, the Endangered Species Act. This is the specific reason why the marijuana regulation was upheld by Scalia, because the Congress is allowed to make regulations that reach purley intrastate activities if regulation of those intrastate activities is part of a larger scheme of interstate commerce regulations. Under Scalia's reasoning in Raich, the grey wolf taking regulation would have been valid.

So is Luttig in favor of medical marijuana? The Fourth Circuit has not ruled directly on the medical marijuana issue (none of the states in the Fourth Circuit have passed medical marijuana laws), see Raich at fn1. See e.g. United States v. Dash (10th Circuit 1997)(maufacturing controlled substance can be reached by the commerce clause based legislation). Proyect v. United States (2nd Cir. 1996) (manufacturing marijuana can be reached by commerce clause based legislation).

However, in United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995), Judges Russell, Hall, and Widener upheld the CSA's application to the growing of thirty three marijuana plants. Judge Luttig did not participate in the decision. The Leshuk decision itself simply says that because Congress made explicit findings that the manufacture of marijuana substantially affects commerce (and Congress failed to make the findings in the Gun Free Schools Zones Act), the CSA is valid. However, there were findings made by Congress in the VAWA, and they are explicitly discussed in Luttig's dissent in Brzonkala.

Luttig specifically criticizes finding an act of Congress contitutional against a commerce clause challenge just by making conclusory "findings." Luttig states: "Ignoring entirely the overarching change in Commerce Clause analysis wrought by Lopez, the majority merely recites several statements from House and Senate committees on the general problem of violence against women and the effect of that violence on the national economy, together with a sentence from a House Report stating that violence against women substantially affects interstate commerce (incidentally, never mentioning that the Senate, as opposed to the House, did not conclude that such violence substantially affects interstate commerce) and then simply states, without more, that the Act is constitutional."

Luttig suggests that he could have found differently on the issue in Leshuk:

"The majority's wholesale deference to a committee finding would at least be understandable if that committee had made extensive findings deserving of deference. However, the majority ultimately sustains the constitutionality of the Act literally on the basis of a single sentence appearing in that committee report, which sentence is, itself, entirely conclusory."

United States v. Leshuk:
http://www.law.emory.edu/4circuit/sept95/945839.p.html

See Gibbs v. Babbitt, full case available here:
http://pacer.ca4.uscourts.gov/opinion.pdf/991218.P.pdf

Brzonkala v. Virginia Tech, full text here:
http://pacer.ca4.uscourts.gov/opinion.pdf/961814A.P.pdf

Luttig is a true federalist and seems willing to examine the sum and subtance of Congressional findings vis-a-vis the substantial affect any given activity may have on interstate commerce. He probably would have bucked his mentor Scalia and voted with Thomas in Gonzales v. Raich.
decision is an important distinction between Wilkinson and Luttig.

This is an interesting article on now the Ninth and Fourth Circuits are dealing the onslaught of pro se federal appeals from prisoners:

http://www.judicialaccountability.org/articles/
proseappeals9circuit.htm

Justice Sandra Day O'Connor announced her retirement from the United States Supreme Court today.

see: http://www.washingtonpost.com/wp-dyn/content/article/
2005/07/01/AR2005070100653.html

The speculation is that Alberto Gonzales, the current Attorney General with be nominated to the high Court.

Can this NEW version of the VAWA pass constitutional muster under GONZALES VS. RAICH? It seems that under Scalia's reasoning in his concurrence in Raich that all Biden need do is put a insert a legislative record that the new VAWA is part of a larger scheme of regulation of intrastate violence.

See full text here:
http://biden.senate.gov/newsroom/details.cfm?id=239039

In Johnson v. California the United States Supreme Court threw out the Wheeler procedure in California for challenging a prosecutor's race-based use of peremptory challenges. The USSC ruled that California's procedure of imposing a preponderance standard with respect to establishing a prima facie case of race based use of peremptory challenge violated Batson v. Kentucky its progeny.

California had required that a defendant show that it is more likely than not that a prosecutor had used race to peremptorily challenge jurors in the voir dire. The USSC said that the defense must only show facts that give rise to an inference of race-based use of challenges, the defense is not required to show initially, by preponderance, that the prosecution is violating Batson. (Although that may be the defense's ultimate burden).

The defense need only raise an inference of purposeful discrimination to shift the burden to the prosecutor to justify his use of challenges.

Full case here: Johnson v. California

http://a257.g.akamaitech.net/7/257/2422/13jun20051230/
www.supremecourtus.gov/opinions/04pdf/04-6964.pdf

The Sixth Circuit held in United States v. Arnold that the 911 calls in question are testimonial and shoudl have been excluded under Crawford. This is a decision in the right direction, applying the straight forward definition of testimonial, the Sixth Circuit stated that because the statements on the 911 calls were made stated that the decisive inquiry as to whether a statement is testimonial is "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. [389 F.3d] at 675. The court further stated that a "statement made knowingly to the authorities that describes criminal activity is almost always testimonial." BINGO!

The Arnold panel specifically rejected the "excited utterance" admittance rationale advanced by the US. The question and answer nature of the 911 calls take it outside of the realm of an excited utterance as a logical matter, and the Sixth Circuit held that there was no proof in the record of when the incident that prompted the 911 call had occurred. Because of this, there was no way to tell on the record before it if the incident was close enough in time to the so-called excited utterances.

Full case here: United States v. Arnold (6th Cir. 2005)

http://www.ca6.uscourts.gov/opinions.pdf/05a0269p-06.pdf

If you have a trial coming up in California where there are multiple co-defendants who made statements to police implicating one another YOU MUST move for a severance. After People v. Pena, full text below, the People can almost never use the statements of one co-defendant implicating another in evidence against the other under any circumstances.

This means that severance is almost guaranteed if the prosecution wants to use the statements of one co-defendant that implicate he, himself in the trial against that speaking co-defendant. If they want to use it, they cannot "sanitize" it under Aranda. Do not allow prosecutors to argue this situation is governed by Aranda, Bruton, or any other case.

The statement of the co-defendant to police implicating your client is testimonial hearsay, pure and simple, and is not admissible against your client in his trial. Further if they want to try your client and the co-defendant together, they cannot use the statement of either against the other in any trial. Get your severance on the grounds that they cannot use the others' statement in evidence against him with your client present in a joint trial, then argue that they cannot use the others' statement at all in evidence against your client under Crawford.

Full case:

http://www.courtinfo.ca.gov/opinions/documents/H023394.DOC

or PDF

http://www.courtinfo.ca.gov/opinions/documents/H023394.PDF

Medical marijuana is in trouble in California. Instead of completing the federalist revolution that began in 1995 in United States v. Lopez, the United States Supreme Court (with Scalia and Kennedy casting the deciding votes), denied Amber Raich the right to use medical marijuana in California without the fear of federal intervention and prosecution.
The United States Supreme Court wrongfully readopted the reasoning of Wickhard v. Fillburn and ruled that because consumption of the pot in question could impact the interstate market on marijuana, that a sufficient federal nexus has been met.

How interesting is it that when the conservatives on the Supreme Court (Scalia) review the scope of federal power for things they enjoy (hunting, guns), they often find the laws unconstitutional. However, in the area of drug policy they cannot stay logically and legally consistent.

Last week the California Supreme Court held in People v. Black that allowing a judge to impose an aggravated sentence based upon facts he or she found to be true (rather than a jury) does not implicate nor violate Blakely or Booker.

Full case here:

http://caselaw.lp.findlaw.com/data2/californiastatecases/
s126182.doc

The CASC held that because Apprendi allows a judge to sentence within the maximum sentence allowed by statute, the California procedure of allowing a judge to determine whether aggravating factors outwiegh mitigating factors, and thereafter impose an aggravated sentence that does not go beyond the statutory maximum, does not implicate Apprendi/Blakely/Booker. To put it another way, because a California state judge cannot find and enhance a defendant's sentence beyond the statutory maximum without additional jury findings on enhancements, the CASC said that the California procedure comports with the Sixth Amendment right to a a jury trial.
This one is going to the United States Supreme Court, we, as diligent and aggressive California criminal defense attorneys, must continue to object to imposition of aggravated terms and consecutive terms on "judge found" facts. This must also mean that the "Blakely" friendly Information(s) that I have been seeing must be demurrer to as failing to state a claim.

On June 23, 2005, in Halbert v. Michigan the United States Supreme Court held a Michigan law unconstitutional which denied appointed counsel for a first appeal for those defendants that had pleaded guilty.
The Court has already held in Douglas v. California that a defendant is entitled to appointed counsel on his "first tier" appeal. The Court held that a state may not make pass a law to define the first appeal as "discretionary" and then deny appointed counsel merely by changing the name of the first appeal.

Full case here:

http://a257.g.akamaitech.net/7/257/2422/23jun20051201/
www.supremecourtus.gov/opinions/04pdf/03-10198.pdf

This is a continuing post on the impact of Shepherd v. United States, a case recently decided by the United States Supreme Court. The Shepherd decision states that a judge must now look only at the fact of conviction, the plea form, the transcript of the plea hearing and other assented to or admitted facts to determine whether a prior conviction is an aggravated felony within the Armed Career Criminal Act.
This case has tremendous impact in a variety of contexts.
When challenging a prior, Shepherd and its reasoning should be used to sharply limit the record that the fact finder can consider to establish the prior or its 'aggravated' nature or quality.

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/
www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

For example, suppose a client's prior indicates that he had pleaded guilty in Calfornia to Transportation of Methamphetamine, in violation of California H & S 11379. The plea form states the charge as "H & S 11379." The plea colloquy is silent as to whether the client plead guilty to Transporting Meth, or simply Offering to Transport Meth (which is also a prong of H & S 11379). The client, a green card holder, is picked up by INS who wants to deport him for being convicted of a drug trafficking offense.

A diligent immigration lawyer could move to exclude all police reports or prelim transcripts (or transcripts of other contested hearings) relating to the prior from evidence before the immigration judge. The immigration lawyer would then point out the ambiguity, i.e. the client could have been convicted of just offering to transport instead of transporting (mere offering not being deportable), and that the doubt should be resolved in favor of the client, and non-removal.

Looking forward, diligent defense counsel should totally eliminate the use of "slow pleas" or pleas that incorporate other documents in the pleas' allocution or factual basis. Counsel should no longer stipulate to any factual basis, stipulate to the incorporation of police reports, or stipulate to the incorporation of ANY other document into the plea colloquy or allocution. The language in plea agreements should mimic the statute verbatim. However, extra language should not be included without careful thought as to immigration, drug conviction, and other consequences.

See Shepherd:
http://a257.g.akamaitech.net/7/257/2422/07mar20051115/
www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

An excellent article by Tony Mauro regarding the chief justice and his potential retirement:

http://www.law.com/jsp/article.jsp?id=1118999115802

And if Alberto Gonzales is not nominated, will it be my former colleague, Judge Luttig:

http://www.law.com/jsp/article.jsp?id=1118999119492

This is an excellent, thoughtful, and thorough federalist analysis of the recent travesty in the Raich case.

http://federalism.typepad.com/ashcroft_v_raich/


Scalia talked in circles and abandoned federalism.

Scalia abadoned his federalist ideological "purity." (His protegee Thomas, did not). Scalia sold out his legacy as a federalist icon, he is now a judicial activist in the War on Drugs. The Supreme Court's prior cases dictated clearly a result contrary to the one that Scalia signed off on, yet he still agreed with the Market analysis in Wickhard.

Scalia's concurring analysis is full of idelogical holes for a true federalist. Scalia expanded upon the doctrine of "substantial affects" on interstate commerce set forth in Wickhard. Scalia called the definition of substantial affects "incomplete" and then explained "where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce." Huh?

He further explained that sometimes regulating intrastate activitites is "necessary and proper" for the regulation of interstate commerce and that may happen in two circumstances:
1. Congress may devise rules for the governance of commerce between states, but may also
2. facilitate interstate commerce by eliminating potential obstructions and to restrict it by eliminating potential stimulants.

Under this reasoning, Scalia believed the federal regulation of pot was valid because simple possession can be regulated by the federal government as part of its larger comprehensive scheme to elimiate controlled substance trafficking and markets. If Congress "could reasonably conclude" that its objective of eliminating marijuana from the interstate market "could be undercut" if possession of purely homegrown marijuana were exempted from federal drug law, then Congress can prohibit adults who have grown their own marijuana from smoking that marijuana in their own homes.

Scalia reasoned that its just to hard to distinguish between home grown marijuana and that which moves in interstate commerce (I thought a new class of so-called plant botanist 'experts' would be the next move of prosecutors across the land).

Are there any limits on Congress's power now? Is Necessary and Proper the next battleground?

Scalia distinguished Morrison on the ground that domestic violence was non-economic activity, yet smoking pot was not. Scalia then really danced on the head of a pin, when he claimed that although the regualtion at issue in Lopez was also noneconomic, the regulation (guns near schools) was not part of a larger scheme of interstate commerce related regulations and therefore was invalid.

Scalia states that Morrison and Lopez do not catergorically declare noneconomic intrastate activity to be beyond the reach of the Federal government. Rather, under the necessary and proper clause, intrastate activity that impacts interstate commerce or that supports a greater scheme of laws that properly and constitutionally regulate interstate commerce, may be reached by a law of Congress.

Scalia is wrong with respect to his analysis of Morrison. Morrison did not even discuss whether the VAWA was part of a larger comprehensive scheme of regulation, a fact that Scalia concedes. (The VAWA seems about as comprehensive in its approach to fighting domestic violence on all fronts as is the CSA with respect to drugs).

Scalia is also wrong as to his analysis with Lopez. While Scalia correctly notes that the Lopez

This decision is a logical and legalistic sham:

Full opinion here:

http://a257.g.akamaitech.net/7/257/2422/06june20051130/
www.supremecourtus.gov/opinions/04pdf/03-1454.pdf

decision itself disclaims that the Gun Free School Zone Act is part of a larger scheme of regulation, is that the logical end of the matter? Will Scalia be satisfied with legislative disclaimers, or should the court have looked at substance over form? May the Supreme Court may now find an implied "Lopez" disclaimer, every time it wants to strike down a federal law that purports not to reach interstate commerce. Conversely, may Congress now insert "anti-Lopez" language in every bill that states that "this bill is part of a larger regulatory scheme" and therefore bullet-proof that law from commerce lause challenges?

An excellent compendium of the history and course of the current political corruption trial occurring in San Diego.

http://www.signonsandiego.com/news/metro/probe/index.html

This is a great summary of retroactivity of Crawford from Professor Friedman's Confrontation Blog. In all the buzz about Booker we may have forgotten about this very important one year old rule changing the very nature of hearsay analysis.

Retroactivity of Crawford:

I don't know much about retroactivity but at least for now there seems to be a split in the federal circuits as to whether Crawford is retroactive for purposes of collateral review. Last week, the Ninth Circuit decided Bockting v. Bayer, 2005 WL 406284 (9th Cir. Feb. 22, 2005), in which a split panel held in favor of retroactivity. I've been on vacation for most of the time since the decision came down, and have not had a chance to read the decision carefully, much less comment on it -- but Brooks Holland has, and you can read his comments, attached to my posting on the Brooklyn conference, by clicking here. (As Brooks points out, there are other interesting aspects of the Bockting decision, and I hope to comment soon on one of them -- unavailability -- in another post.)The day after Bockting was issued, the Sixth Circuit issued Dorchy v. Jones, 2005 WL 415147 (6th Cir. Feb. 23, 2005), which held rather conclusorily that Crawford does not paply retroactively. This is the position that the Second and Tenth Circuits have already taken. Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir.2004); Brown v. Uphoff, 381 F.3d 1219 (10th Cir.2004).Assuming the Ninth Circuit panel is not reversed en banc, therefore, it appears there is a conflict among the circuits, which presumably the Supreme Court will soon feel it necessary to resolve.

They certainly taught Mr. Blakely a lesson for daring to appeal his sentence:

http://www.columbiabasinherald.com/articles/2005/
03/23/news/news02.txt

Once Blakely won in the USSC, the same DA came up with a snitch and instead of releasing him put him on trial for solicitiation to murder his wife.

Crawford ended up shaving four years off his sentence by pleading guilty and stipulating to a ten year sentence:

http://www.theolympian.com/home/news/
20050331/topstories/116331.shtml

In March 2005, the Ninth Circuit held that the Crawford rule (which redefines hearsay rules in all courts nationwide) is retroactive to cases not still pending on direct appeal. In the Bockting case the Court held that the defendant (a convicted child molester), was entitled to retroactive relief on a 2254.

See full case: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
1886E09C54A4E27388256FB0005803BA/$file/0215866.pdf?openelement

The Court reasoned that it did not matter whether Crawford announced a new rule within the meaning of Teague because Bockting was entitled to relief either way. The court reasoned that Crawford announced a new PROCEDURAL rule, and therefore "Crawford merits retroactive application only if it implicates the fundamental fairness of the accuracy of the proceeding' [citations] and reworks our understanding of bedrock criminal procedure."

The Ninth Circuit then goes through a very eloquent discussion of both of these elements and finds that Crawford meets them both. Quoting from Scalia in Crawford, the Ninth Circuit notes that Crawford specifically dissaproves of the old Ohio v. Roberts 'trustworthiness' regime for hearsay rule exceptions. The Ninth also reasons that the because cross examination is a engine designed for improving accuracy of factfinding, and because Crawford re-works the rules of cross-examination, then the first part of the Teague test with respect to new procedural rules is met.

Moving on, the Ninth then distinguishes its rule of retroactivity from that announced by the Tenth Circuit.

In Shepard v. United States the United States Supreme Court again expanded the scope of defendant's rights with respect to what types of evidence are sufficient to support findings of certain prior convictions and the conduct that allegedly happened in those prior cases.

Click here for full case:

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/
www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

The trial Court in Shepard found that the defendant had three or more burglary convictions and hence enhanced his sentence at the request of the Government. The Armed Career Criminal Act makes burglary a 'violent' felony if it is committed in a building, or enclosed space (i.e. a "generic burglary"), as opposed to a vehicle (the common distinction between first and second degree burglary in California). The trial court had attempted to enhance Shepard's sentence from 37 months to over fifteen years based upon materials found in police reports.

The Supreme Court disapproved this practice. Following Apprendi v. New Jersey, and Jones v. United States, the Supreme Court stated that in 'guilty plea' cases there are only certain types of records that can lawfully support a later specific factual findings of that offense. When attempting to prove a prior for purposes of enhancing a sentence, a transcript of the Rule 11/plea hearing, a written plea agreement, or some sort of on-record plea colloquy or factual basis must be the factual predicate or basis for proof of the facts of the prior.

Defense counsel must now attempt to factually limit and to be as circumspect as possible in their plea allocutions, whether in plea agreements or allocutions. In San Diego Superior Court (and California courts in general), defense counsel should no longer stipulate to the inclusion or incorporation by reference of police reports or transcripts of preliminary examinations as the factual basis to support pleas. This maxim is especially true in drug cases and violent offenses (or other strikes).

Chip Venie

The Fourth Circuit gave reversed a 65 year sentence last week in United States v. Johnson. The Fourth Circuit found "plain error" because a jury failed to find facts in aggravation that amounted to impostion of an extra 32.25 years to Mr. Johnson's sentence. The Court also made some interesting rulings on Miranda issues.

See full case below:

http://caselaw.lp.findlaw.com/data2/circs/4th/034677p.pdf

Chip Venie, Esq.
Chip Venie was a staff attorney for the Fourth Circuit from 1999-2000. He is now in private practice in San Diego, California.

Below is an excellent article on Blakely and Booker's impact in California state court.

http://www.fdap.org/downloads/blakely/
BlakelyBookerFDAPJan2005seminar.pdf

March 3, 2005

JUDGE RULES, MOM “TOO PREGNANT” TO KEEP KIDS

SAN DIEGO, CALIFORNIA: When a divorced mother, with a live-in nanny and fiancé, becomes too pregnant to drive, she will lose her right to any visitation with her children. That is what Family Court Judge Patricia Garcia ruled yesterday, in a hotly contested child custody matter in Chula Vista.

Judge Garcia ruled that a young mother, Cynthia Venie, who is again pregnant with her fourth child, is the only person allowed to pick up her two daughters from their father’s home every other week. When it was explained to Judge Garcia that Ms. Venie had difficulty in the past with her pregnancies and that she might not be able to drive herself, the Judge ordered that she would lose her right to spend time with her two daughters from her first marriage.

“I was shocked by this order from the Court,” said Ms. Venie’s attorney, Jon M. Pettis, “It seems to suggest that because she is pregnant, she should have fewer rights as a parent. That is outrageous and discriminatory. The Court knows Ms. Venie has responsible adults in her home to assist her in caring for the children. The Court also has been informed that the father chooses to leave the children at homes where a convicted drug dealer and documented gang member lives and another, where a mother has been accused of failing to protect her own children from many years of sexual abuse.”

This was in the wake of earlier hearings where evidence was presented to the same Judge accusing Ms. Venie’s ex-husband, Noel Alfsen of sending nearly 20 threatening e-mail messages to Ms. Venie’s fiancé. In one of the emails, Mr. Alfsen allegedly threatened to “Laci Petersen” his former wife and her unborn child.” However, despite extensive testimony and evidence from Mr. Alfsen’s on-line provider showing he was using his e-mail at or near the time of all the messages, Judge Garcia refused to accept the e-mails into evidence and denied a request for a restraining order protecting Ms. Venie or her children.

“I’ll keep going to pick up my daughters as long as I can,” cried Ms. Venie. “It’s because I want to see them and raise them, but also, because I am also terrified about what can be happening to them when they are not with me. I just hope this doesn’t hurt the baby inside me.”

Judge Patricia Garcia: San Diego Superior Court, So. Bay, Dept. 8: (619) 691-4545
Mr. James Albert: (619) 440-7070, Attorney for Mr. Alfsen
Mr. Noel Alfsen: (619) 656-9549, Petitioner
Mr. Chip Venie: (619) 235-8300, Attorney / Respondent’s Fiancé

On March 1, 2005, the Supreme Court reversed 15 years of precedent and ruled, 5-4, that executing people for crimes they committed under the age of 18 is unconstitutional as against the "cruel and ununusal punishment" clause of the Eight Amendment.

This case appears to have far ranging impacts, but currently impacts between 78 and 84 prisoners on death rows nationwide. Probably the most prominent example of a juvenile who will not be exeucted as a result of this ruling is the case of John Lee Malvo, one of the infamous Capitol snipers. Because Malvo was 17 at the time of the killings, Virginia prosecutors have announced that they will not seek the death penalty as a result of yesterdays rulings.

In a somewhat narrow factual ruling, the United States Supreme Court ruled on Wednesday, Feb. 23, 2005, that the Double Jeopardy Clause of the Fifth Amendment bars a judge from re-considering guilt on a charge for the which the Court has already acquitted the defendant.

In Smith v. Massachussetts, the Court barred a judge who had already acquitted the defendant on one of three counts at his jury trial from reconsidering that judgment of acquittal.

See, full text of opinion:

http://a257.g.akamaitech.net/7/257/2422/22feb20051100/
www.supremecourtus.gov/opinions/04pdf/03-8661.pdf

This ruling appears quite narrow on its face. For defense lawyers, this means that Motions for Directed Verdicts or Judgments of Acquittal should be filed and fought in almost every case that is tried.

In a controversial decision, the US Supreme Court held Wednesday that prisons may not temporarily discriminate on the basis of race with respect to its housing of inmates. In Johnson v. California, the high Court held that racial classifications for prisoners who had recently been transferred to a new prison must be subjected to strict scrutiny, as all governmental racial classifications must be after Adarand.

The Court threw out California's current system, see full text of opinion below:

http://a257.g.akamaitech.net/7/257/2422/23feb20051045/
www.supremecourtus.gov/opinions/04pdf/03-636.pdf

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com

The Ninth has done it again, in this case from Feb. 18th, United States v. Moreno-Hernandez, the Ninth stated that a district court must reconsider its decision to depart 16 levels upward and impose a sentence enhancement upon an offender for a prior crime under Oregon law.

For full opinion, see below:

http://caselaw.lp.findlaw.com/data2/circs/9th/0330387p.pdf

This opinion is important because it suggests nearly all federal prisoners in the West will be entitled to a re-sentencing or at least to ask the judge not to impose very severe enhancements. In this case, the Court held that the defendant's enhancement CAN be imposed (that is what the Court says), but it does not HAVE to be imposed (after Booker) and therefore the defendant is entitled to a re-sentencing and to argue that it SHOULD NOT BE IMPOSED. You can see, good defense counsel make all the difference in these matters. If you can get you re-sentencing (which seems easier and easier), you still need good counsel to craft an argument to reduce your sentence. At our firm, we have compiled a Motions bank of nearly 200 factors or reasons to mitigate or lower a federal prisoner's sentence. Please call us or email us today for more information.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

This website has it all regarding Booker Fanfan Blakely and their progeny:
http://www.fd.org/blakely_main.htm

We have compiled a comprehensive list and discussion of mitigating factors that can now be argued on behalf of federal defendants and prisoners who file appeals and receive re-sentencings.

Remember, under Booker and Fanfan, federal judges should sentences defendants (and prisoners who file appeals) under 18 USC 3553(a) which is a list of broad factors that mitigate sentences.
Here is a list of 108 mitigants that can be argued on behalf of defendants who are entitled to Blakely Booker or Fanfan relief.

http://sentencing.typepad.com/sentencing_law_and_policy/files/
levine_108_easy_mitigating_factors_feb_1.doc

Professor Douglas Berman also has provided us with an excellent summary of how judges should now sentence prisoners:

http://sentencing.typepad.com/sentencing_law_and_policy/2005
/02/departures_vari.html

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com



Chip Venie is an attorney in San Diego California who concentrates his practice in criminal defense. Mr. Venie is admitted to practice in Courts throughout the United States (Michigan, California, Washington, D.C., federal courts in California, Michigan, Tennessee, Virginia, Ohio, Maryland, South Carolina, North Carolina).

Here is a quick weekly summary of rulings from the Second, Third, Ninth and Tenth Circuits:

From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).

From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."

From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."

From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.


The Courts are already starting to chip away at the scope of the Booker/Fanfanruilings. If you are a federald defedant facing chargs you need to be aware of these cases.
Some of the things that are suggested are:
(1) Judges may be able to enhance your sentence based upon your admissions (saying nothing before you speak to a lawyer is critical); however, almost all of these rulings from last week suggest that
(2) Most federal criminal defendants whose appeals are still pending, or within one year thereafter are entitled to re-sentencings.

Chip Venie
chipesq@hotmail.com
(619) 235-8300

In an thorough opinion denying 2255 habeas relief, this judge sets forth the reasons why BOOKER and or Fanfan should not be found retroactively. It reads like an outline of arguments for good defense counsel to anticipate and respond to (in advance) or the Governments pleadings:

http://sentencing.typepad.com/sentencing_law_and_policy/files/
siegelbaum_opinion_denying_2255_motion.pdf

Chip Venie, Esq.


Our firm concentrates on federal and state criminal defense. Mr. Venie has handled over 130 federal criminal appeals and over 600 other felony matters.

The Ninth Circuit (the federal court of appeal for most of the Western states) ruled yesterday that "plain error" analysis is to be applied to Booker Fanfan Blakely Apprendi claims of sentencing error.

What this means is that almost ALL federal prisoners in the west who were sentenced after June 26, 2000, and whose sentences were enhanced by the judge, have a right to a new sentence, AND TO HAVE THEIR OLD SENTENCE THROWN OUT! The Court said as much in its opinion.

In United States v. Ameline, the Court echoed the Fourth Circuit, in Hughes, and held that it does not matter if you lawyer failed to object to your sentence, your former lawyer cannot be held responsible for failing to understand that you had a right to sentencing outside of the guidelines.

Mr. Ameline's case is like so many we have seen in the last ten years. Ameline had his sentenced enhanced because the judge found that he had possessed more than a kg of meth in connection with the conspiracy. Ameline disagreed about the amount of meth.

Mr. Ameline's sentence was also enhanced because his offense level was raised two levels because the judge found that he had possessed a weapon in connection with the drug possession. The judge based this finding on the hearsay testimony of a snitch that stated that Ameline had traded some meth with him for a rifle and that he had once seen Ameline threaten his son with a rifle.

The district court enhanced his sentence based upon those two factors and that sentenced him to 150, the middle of his range of 135-168 months, based upon an total offense level of 33. This is even though the maximum that Ameline could have faced based upon what he admitted oin his plea bargain, was 16 months in prison, given a base offense level of 12.

The Ninth Circuit overturned the sentence, and remanded for a JURY TRIAL on the two sentencing factors, the gun and the AMOUNT OF DRUGS. The Court held that "Ameline was deprived of his right [under Blakely and Booker] to have a jury find beyond a reasonable doubt the quantity of drugs attributable to him. "

But the Court went even farther, they stated that unless your case was "truly" exceptional, you as a defendant would almost always be entitled to a resentencing under the new Blakely Booker holdings. And the Court said on resentencing, that the district court must apply all of the new factors set forth for resentencing and is not constrained on its ability to depart and fashion a sentence that the Court truly thinks is fair and "reasonable."

Link to the case:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/
68A618A338BB0B4188256FA3000764E6/$file/
0230326.pdf?openelement

The impact of this is staggering. Defense counsel are no longer restrained in their pleas to federal courts on behalf of their clients. Truly innovative defense counsel can now obtain low(er) sentences on almost any grounds.

Our firm concentrates solely on criminal defense matters. I have personally handled over 130 federal criminal appeals, and over 600 other felony matters.

Call or email today.

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com



federal drug crimes Booker Fanfan Blakely Booker drug crimes white collar crimes federal appeals appeal

In United States v. Ameline (issued on February 9, 2005) the highest federal court of appeal in the West held in that unless a federal prisoner's case is truly exceptional, he or she will be entitled to a jury trial on all of the aggravating factors used to make his or sentence worse.

This means that all federal prisoners in the West, and specifically drug offenders for Federal drug crimes in California, who were sentenced after June 26, 2000, are probably entitled to a re-sentencing. Prosecutors cannot claim that you possessed anymore drugs (and therefore cannot punish the federal inmate), than they can prove to a jury beyond a reasonable doubt. The old way of punishing a federal drug offender or defendant does not apply anymore. They cannot punish on hearsay about the amount of drugs.

But you must act quickly, the rules of procedure say that you must ask for a resentencing no more than one year after your final direct appeal is denied. (Or you must raise the issue in your direct appeal).

Chip Venie, Esq
chipesq@hotmail.com
(619) 235-8300
Offices in Washington D.C.
San Diego, California
and Davisburg, Michigan.

Two law professors have proposed a new law for "reckless sexual conduct." The propsoed new law would cover situations like the Kobe Bryant case. To convict, prosecutors would have to show beyond a reasonable doubt that a first-time sexual encounter occurred between the accused and the alleged victim, that the couple were not married to one another and that no condom was used. The accused would then have the opportunity to prove, by a preponderance of evidence, that the alleged victim consented to having unprotected sex.

See http://www.abanet.org/journal/ereport/f4conduct.html

This is an interesting proposal. The new law could cover cases like the one below, where a minsiter is accused of using fear of the devil to get women to have sex with him. The new law is wrong insofar as it is another encroachment of government into the bedroom.

http://www.signonsandiego.com/news/metro/
20040918-9999-2m18pastor.html

http://www.sanluisobispo.com/mld/sanluisobispo/
news/politics/9700407.htm

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

This paper suggests that sex bewteen two consenting adults be made a crime if one later objects (think the Kobe Brant case, and our firm's own Romero case discussed below).

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=581663

This proposal has proposed grave impacts on the state of sexual freedom in this country. Further still, the proposed law is at least paternalistic, and at most sexist. The contiuned prosecution of people in the Kobe Bryant or Carlos Romero situation is offensive to women because it once again seeks to portray women as weak, and incapable of consenting to sexual acts. It allows police and prosecutors to determine who is a "bad guy" or a dog (or Lothario) and essentially prosecute them for being "a dog" to women.

This proposed law is a disaster.

For more on the Carlos Romero case, which is a prime example of prosectuorial "white knightsmanship", click below:

http://www.signonsandiego.com/news/metro/
20040918-9999-2m18pastor.html

Chip Venie, Esq.
(619) 235-8300
chipesq@hotmail.com

The new Supreme Court ruling in Booker may help get him or her out of jail. Booker and Fanfan themselves were drug defendants, and the United States Supreme Court threw out the guidelines in their cases.

In United States v. Hughes, published just a week ago, the Fourth Circuit (the top Court for federal appeals in Virginia, West Virginia, South Carolina, North Carolina, and Maryland), went even further. That Court applied the "plain error" test to this issue, and bascially stated that defendants cannot be held responsible for their lawyers' failure to object at the time of sentencing.

This is an excellent resource on how the new ruilings may impact your loved on serving a mandatory minimum for a federal drug crime or offense:

http://www.famm.org/nr_sentencing_news_blakely_resources.htm

If you loved one is serving time in federal prison for a federal drug crime, please call today, we may be able to help.

Chip Venie, Esq.
chipoesq@hotmail.com
(619) 235-8300

This Court in Utah went further than any Court before it. In US v. Croxford, the District Court threw out the guidelines in their entirety. (Interestingly enough the judge in the case clerked for Scalia).

The Utah Court considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he got rid of the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.

This ruling shows creative approaches for re-sentencing of defendants after they obtain relief from appeals Courts. If you or a loved one, was sentenced after June 26, 2000 and the judge found enhancements in that case, you may be entitled to relief.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

Our favorite client 

It has happened! A federal appeals Court in Richmond, Virginia has held that the applying the federal sentencing guidelines after Booker is PLAIN ERROR, in other words an error so fundamental that the sentencing must be re-done in almost all cases which were sentenced after June 26, 2000.

See, * United States v. Hughes, ___ F.3d ____, 2005 WL 147059, 2005 U.S. App. LEXIS 1189(4th Cir. Jan. 24, 2005) (finding plain error in sentencing of defendant under mandatory guideline scheme and remanding for resentencing under advisory scheme)

Link: http://pacer.ca4.uscourts.gov/lastweek.htm

Mr. Hughes, a white collar criminal, was convicted of bankruptcy fraud and perjury, (traditionally considered white collar crimes). The District Court had applied five different enhancements, raising Mr. Hughes offense level from a 6 to a 22, and taking him from a range of 0-6 months imprisonment to 41 to 51 months. Ultimately the judge sentenced this white collar offender/criminal with no prior convictions to 46 months in prison.

The Fourth Circuit, a court not exactly known for its leniency to convicted criminals reversed. In a remarkable decision, the Court held that "PLAIN ERROR" had occurred. In other words, that the denial of Mr. Hughes's Sixth Amendment rights was so substantial that he could not be faulted for failing to object at the time of sentencing.

What does this all mean? The Plain Error ruling of the Fourth Circuit is huge in terms of impact of federal prisoners and specifically, white collar offenders. Many white collar offenders and other federal prisoners' lawyers failed to object at the time of sentencing to judges enhancing their sentences. (This is not meant to criticize those lawyers, it is reasonable to assert that no one could have seen the Apprendi/Booker revolution comming).

However, IF YOU ARE A FEDERAL DEFENDANT WHO WAS SENTENCED AFTER JUNE 26, 2000 IN A FEDERAL COURT IN MARYLAND, VIRGINIA, WEST VIRGINIA, NORTH CAROLINA, OR SOUTH CAROLINA, YOU ARE PROBABLY ENTITLED TO A RESENTENCING.

If you are a federal prisoner, the Hughes ruling can help in a very dramatic fashion. It can persuade a judge to give you another chance at sentencing, and it can help the judge reduce your sentence.

Mr. Chip Venie was a former Fourth Circuit Staff Attorney and is intimately familiar with the procedures for obtaining resentencing relief in that Court. In addition, Mr. Venie is a member of the Ninth Cicruit bar and can help you pursue your federal appeal in almost all western states. Mr. Venie has handled over 130 Federal Criminal Appeals and Habeas Petitions.

Chip Venie
chipesq@hotmail.com
(619) 235-8300


Booker Fanfan White Collar White Collar White collar prisoner Booker Fanfan

In this twin set of cases, we see federal Courts more open to giving relief and re-sentencing to white collar offenders

US v. Ranum

Facts: Ranum was a bank officer who made a series of loans to a promising shipping company, but lied to the bank committee about the company’s reserves. Opinion at 7. He was charged with misapplication of funds and false statements. Id. at 8. After conviction at trial, he faced a guideline range of 37-45 months in custody. Id. at 9. Before sentencing, Booker was decided.Issue(s): How does a federal court sentence a defendant after Booker?Held: "In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors." Id. at 1-2. "I determined that the factors set forth in § 3553(a) fell into three general categories: the nature of the offense, the history and character of the defendant, and the needs of the public and the victims of the offense. I analyzed each category and in so doing considered the specific statutory factors under § 3553(a), including the advisory guidelines." Id. at 10."In the present case, after carefully considering all of the evidence and applying all of the § 3553(a) factors, I declined to follow the guidelines and instead imposed a sentence which was sufficient, but not greater than necessary, to satisfy the purposes of sentencing." Id. at 5. "I impose[] a sentence of twelve months and one day, followed by five years of supervised release." Id. at 13.

The Ranum Court gave the white collar offender 12 months instead of the required 37-45. White collar offenders are beggining to benefit from the Booker/Fanfan ruling. It gives judges the discretion to depart from the very strict "amount of loss" guidelines, and "level of sophistication" enhancements that are routinely imposed in white collar crimes.

See also: * United States v. West, 2005 WL 180930, 2005 U.S. Dist. LEXIS 1123 (S.D.N.Y. Jan. 27,2005) (Sweet, J.) (in wire fraud case, where stipulated Guideline range was 57-71 months, sentencing defendant to 60 months, the statutory maximum; following Ranum (supra), in that Guidelines are only one factor to consider; notably, stating that “[n]othing in Booker appears to suggest that such fact-finding, as limited by the principles of Apprendi and its progeny, is inappropriate. Accordingly, this Court will sentence West based upon the facts admitted in connection with his plea and upon those facts found by the Court in the context of analysis under subsection 3553(a), as limited by Apprendi and Booker”)

Many white collar offenders from New York City, Connecticut and surrounding areas can benefit from these cases.

Chip Venie
chipesq@hotmail.com
(619) 235-8300

In United States v. Hughes, the Fourth Circuit Court of Appeals in Richmond, Virginia stated that the new sentencing rules announced in Booker will be applied for plain error.

What that means is that Mr. Hughes, who is a white collar offender, could have been sentenced to 0-6 months instead of the 46 that he got under his applicable range (41-51 moths).

Federal drug offenders are entitled to the same relief. There is no reason to distinguish between Mr. Hughes, who got an erroneous sentenced based upon 'amount of dollar loss' findings, and a drug offender who got a greater than authorzied sentence because of 'drug amount' findings.

It is my firm's belief that drug offenders who were sentenced after June 26, 2000 in Virginia, West Virginia, Maryland, North Carolina, and South Carolina, may be entitled to drastic reductions in their prison time.

Mr. Venie has handled over 130 appeals before the Fourth Circuit, the Court you must ask for help if you are a federal drug offender in Virginia, West Virginia, Maryland, North Carolina or South Carolina.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

This is a very interesting case out of Utah. The judge is actually the same man who argued for the reveral of Miranda in Dickerson. The judge calls out President Bush to do what is right for the defendant.

www.utd.uscourts.gov/reports/angelos.pdf

Chip Venie, Esq.
(619) 235-8300




Booker Fanfan Booker Fanfan drug crimes

Last week, in People v. Howard, the California Supreme Court threw out a second degree murder conviction for Mr. Howard and his life sentence as well, and ruled that he COULD NOT be convicted of murder after a 'COPS'-like chase through rural parts of Fresno County.

Mr. Howard, who had marijuana, cocaine, heroin and methamphetamine in his system when tested after the crash, took off from police in a high speed pursuit after they attempted to stop the stolen SUV which he was driving. Howard ran a red light after police broke off pursuit and hit a car in an intersection killing one of the car's occupants.

The court held that not all evading cases are inherently dangerous to human life. The Court stated that the prosecution could not rely upon the second degree felony murder doctrine, which allows for conviction of murder if someone is killed in the course of commission of a felony. The prosecution will now have to prove that someone acted with "malice", not just in reckless disregard for life and limb.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300






evading evade car car chase car law murder accident car accident evading offense crime criminal

With the death of the federal sentencing guidelines, almost all of criminal defendants sitting in Federal prisons should all writs (2255) or new appeals to address the Booker and Fanfan decisions. The article below gives a full summary of the effect of Booker and Fanfan.

http://www.abanet.org/journal/ereport/j14sentence.html

Needless to say, almost EVERY criminal defendant has important rights under the new decisions. Time is running however, the Congress will do something soon to address this huge criminal law "loophole" or "escape hatch."


Chip Venie, Esq
(619) 235-8300
chipesq@hotmail.com

Booker Fanfan Booker Fanfan

With this week's major decision in Booker and Fanfan, white collar offenders (i.e. those accused of and sentenced for fraud offenses), will be able to escape the harsh consequences of the guidelines table.
Before Booker and Fanfan, the sentence for fraud offenses was based upon the amount of loss. White collar criminals or offenders had little room to argue for leniency, the table drove the sentences. Now, a white collar offender will not have to be locked into the table, and good defense counsel can make all of the difference.


Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

A federal court here in California rejected noted atheist Michael Newdow's request to keep prayers out of "W's" second inauguration. Newdow, who is the same guy who challenged the Pledge of Allegiance, made the following comments after the judge's ruling:

"To uphold the Constitution in this case, someone would be castigated beyond belief by a public that wants religion in their government," Newdow said. "That's what people want. There is an inherent bias in a case like this to see if you can find a way out."
Newdow had argued that the inauguration is perhaps the most public of all government-sponsored national ceremonies. It should not provide the president with an opportunity to make nonreligious citizens and non-Protestants feel like outsiders, he said.
"This is like the Super Bowl, the Olympics. It's a civic ceremony like no other," Newdow told Bates in a hearing yesterday. "The president will swear to uphold the Constitution and then violate the Constitution so heinously by endorsing these religious beliefs . . . and telling everyone this is a Christian nation."

To see the entire story, click on this link


http://www.washingtonpost.com/wp-dyn/articles/
A9936-2005Jan14.html

today threw out the United States Sentencing Guidelines, USSG, making them "advisory." This is a HUGE development for Federal criminal law lawyers. The consolidated cases, United States v. Booker and United States v. Fanfan, are the final death blow to a system of mandatory guidelines that severely restricted federal judges discretion, all in the name of uniformity of sentencing. The Supreme Court today reaffirmed that anyone who is facing criminal charges must have the facts which determine his guilt, or innocence or punishment, must be decided by a jury fo his or her peers. Further the Court stated that those facts must be decided beyond a reasonable doubt and not just by a judge after a jury trial by some lesser standard of proof.
Mr. Booker's and Mr. Fanfan's cases are instructive. In Booker's case he pleaded guilty to possession of 92.5 grams of crack with intent to sell. Under those facts, his sentencing range was set at 210-262 months. Instead, after a judge led hearing, the judge found certain facts to be true by preponderance of the evidence (the standard for civil lawuits), and then imposed a 360 month (30 year) sentence. In Mr. Fanfan's case, under the terms of his conviction, he was supposed to be sentenced to no more than 78 months imprisonment. Instead, after a judge led hearing, the judge found certain facts and enhanced his sentence to 188-235 months.
The Supreme Court rejected both these enhancements, and stated that all facts that lead to conviction or enhancement of a sentence must be pleaded to a jury, and proved before a jury, and that a jury must find them beyond a reasonable doubt.

The Supreme Court also invalidated a provision that allowed appellate judges to review all of the factors that the trial judge took into account in deciding to depart. The Supreme Court stated that from, now on, a judge's decision to depart from the sentencing table (which is advisory now anyway), that the decision to depart wil be reviewed only to see if it is 'unreasonable'.

What does this mean to you? If you were sentenced on a federal crime after June 26, 2000, you have the right to a resentencing and maybe a right to a departure. The clock is ticking however, Fanfan and Booker were made applicable to caes currently in trial courts and on appeal, but you need to get the appeal filed sooner rather than later.

Chip Venie
Criminal Defense Attorney
chipesq@hotmail.com
(619) 235-8300

Today, the United States Supreme Court invalidated the sentences of many federal inmates. For more information see the last post, or read the following cases


www.supremecourtus.gov/opinions/04pdf/04-104.pdf




Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan

Major change in federal sentences for crimes!

Booker and Fanfan,

The United States Supreme Court changed federal criminal sentencing and sentences yesterday when it threw out the sentencing guidelines that judges had been required to use prior to yesterday.

An excellent summary of the case is found at

http://supct.law.cornell.edu/supct/cert/04-104.html

This is the final judicial slapdown to the Ashcroft administration. The Supremes have clearly signaled a greater deference to federal TRIAL court judges, and most of all to juries, the ones who hear the facts and should be the decision makers.

The decision reaffirms that a defendant is entitled to a JURY determination of any fact used to convict or punish him, thereby reaffirming our faith in the jury system.

The decision also rejects and rebukes the Ashcroft amendments to the guidelines that allowed appellate judges to review trial judges decisions to depart. Instead of getting to completely reconsider all of the facts that the tiral judge considered in deciding to depart, appellate judges will now only get to determine if the trial judge's decision was not "unreasonable." This is significant because it puts the decision making power on sentencing departures back where it should be in the trial judges hands.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300


Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan Booker Fanfan USSG USSG Supreme Court criminal law sentencing sentences

Today, some AOL executives were indicted for, among other things, accounting fraud. Apparently, they had forged a signature on some financing documents, as well as a variety of accounting fraud issues.
This apparently is just the beginning, Time Warner has already settled for a massive fine, and the Justice Department promises more prosecutions.
The difficulty with proving this kind of fraud is that most of the so-called "evidence" of fraud exists only in the minds of the executives, and the average jury may have a hard time with complicated financial issues.

Peterson should not get the death penalty, the reason is simple: he is not guilty of FIRST degree murder. I think he probably got mad because she confronted him about the affair with Amber and then he probably pushed her or she fell down after a struggle. At that moment, he had two choices: (a) call the police and take the charge (maybe assault with a deadly weapon, a serious felony, and strike under California Law under most circumstances), or (b) he could do something stupid and cover it up/finish her off. It makes no sense that he deliberately premeditated to kill his child, even though he may have wanted to get rid of her. If this is true, then he is guilty of at second degree murder, which is 25-to-life (25 to life) under California law.