Ok, I admit that this post is NOT about criminal appeals or criminal defense, but I could not resist passing this along. When I saw this article on the CNN website, I thought “Great. Another article about Florida Governor Scott making Florida look bad again.” Well, after reading the article, it’s not just the Governor making Florida look bad. Can you believe that some law enforcement agencies actually have drones? If you live in Orange County or Miami Dade County, look out!
Hot off the presses! Here is the criminal complaint filed against Dzhokhar Tsarnaev in connection with the Boston Marathon bombings. The case was filed in the United States District Court for the District of Massachusetts. The complaint charges Tsarnaev with violations of 18 U.S.C. sections 2332a(a) and 844(i) for the use of a weapon of mass destruction and malicious destruction of property resulting in death.
U.S. v. Dzhokhar Tsarnaev, Case No. 13-2106-MAB (District of Massachusetts).
Unless you’ve had your head in the sand, you’ve no doubt seen the media coverage of the apprehension of the second Boston Bomber, Dzhokhar Tsarnaev, on April 19. You probably also know that he’s currently being held in a hospital, being treated for his injuries, while the prosecuting authorities, both state and federal, decide how to handle things from here. But what you may not know is that he has NOT been given his Miranda warnings. How can that be?
Those of us practicing criminal defense and criminal appeals know that anytime there’s custodial interrogation, the individual should be Mirandized. (Of course we also know that many times, officers decide the for themselves what constitutes custodial interrogation, but that’s a topic for another post). According to news reports, the feds have invoked the public safety exception to Miranda, which can be traced to the United States Supreme Court case of New York v. Quarles, 467 U.S. 649 (1984). According to Quarles, the reason the court carved out the public safety exception was because of the exigency of the situation facing the officers in that case. There, the officers, while “in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.“ Quarles, 467 U.S. at 657.
Now, does that really seem like the situation that officers and prosecuting authorities are currently facing with Dzhokhar Tsarnaev? I admit that it’s pretty likely that the authorities have not revealed all the facts that have gone into their decision not to Mirandize Tsarnaev, but I would think that if there were any exigent circumstances, such as the possibility of immediate public danger, then the press would have been privy to that. After all, the FBI actively called on the press to help them locate the suspects when they released the photos of Dzhokhar Tsarnaev and his brother the day before Dzhokhar Tsarnaev was apprehended. And the whole reason the city of Boston was on lockdown was because the police feared that he would have a bomb on his person. I guess we’ll have to watch the legal aspects of this unfold. All I can say is that Dzhokhar Tsarnaev is going to need one hell of a lawyer.
UPDATE: See the criminal complaint here.
I may have used a lot of acronyms in the title, but I bet I’ve got your attention, right? It’s Wednesday, which is opinion day in Florida’s 4th DCA. Although most of the opinions in the criminal appeals were in favor of the State, I came across one that’s worth a quick note.
In Cosme v. State, 4D09-1650 and 4D09-1652, the Court reversed a sentence imposed after the defendant was found guilty of violating his probation. Although Cosme had been given the benefit of a YO sentence when he was originally sentenced, after finding him guilty of the VOP, the trial judge revoked his probation and sentenced him to concurrent life sentences on all 3 counts. In so doing, the trial judge apparently listened to the statement of the ASA, who informed the judge that she could sentence Cosme to the maximum sentence of life, “without the constraints of the criminal punishment code.” Slip op., pg. 1.
After Cosme was sentenced, the ASA prepared a scoresheet, showing that Cosme’s lowest permissible sentence was 12.25 years, and handed it to the trial judge. The judge then told the ASA to note on the scoresheet that the Guidelines weren’t applicable because Cosme was originally sentenced as a YO. The trial judge signed the scoresheet, and the case eventually came up on appeal to the 4th DCA.
Notwithstanding the fact that Cosme and his counsel failed to object, the 4th DCA nevertheless reversed because the trial judge pronounced the sentence before being provided a scoresheet, and because both the ASA and the judge stated that the guidelines were not applicable when in fact they were. Slip op., pg. 2. Although the 4th DCA acknowledged that the 6- year cap doesn’t apply to a YO sentence imposed following a substantive VOP, the Court emphasized that reversal was required in Cosme’s case because the record did not conclusively show that the same sentences would have been imposed had the trial judge considered a correct scoresheet before imposing sentence.
Of note, Cosme’s case originates in Broward County. For those of you who practice in Broward, you may want to be on the lookout for this type of sentencing issue the next time you’re representing someone who had been given a YO sentence and then gets charged with violating his or her probation. If the judge fails to consider a properly completed scoresheet before imposing sentence, you may have a good basis for appeal pursuant to Cosme.
The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants. It’s like a hat trick for criminal defense and criminal appeals lawyers!
In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody. Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA). In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority. See Millbrook, 11-20362, slip op., pg. 6. Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability. See id.
In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine). On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative. On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again. In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand. Too bad Hinds had to appeal twice to get the benefit of the FSA.
Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.
As I was scrolling through the news this morning, I came across two articles in the Palm Beach Post that I wanted to pass along to the local criminal defense and criminal appeals attorneys out there.
The first article reports that Palm Beach County Circuit Court Judge Karen Miller has stated that she will call back jurors to inquire into allegations that the jurors discussed a criminal case before the evidence was closed, in violation of the court’s instructions. Although the Court has not set a date for the hearing, according to the article, the Judge decided to call the jurors back after a local criminal defense attorney filed an affidavit executed by one of the jurors, wherein the juror indicated that she had a “terrible concern that the verdict that the jury reached was not fair.” The individuals were both found guilty of the 2011 shooting death of a 15-year-old South Bay youth. They have not yet been sentenced.
In the next article (an op-ed piece), the Palm Beach Post notes that one of the jurors from the John Goodman trial recently admitted in a self-published book that his wife had once been arrested on a charge of DUI. Obviously, Goodman’s defense team says it asked all potential jurors if any family members had ever been charged with DUI, and that if they had known of his ex-wife’s arrest they would not have selected him. Armed with that information, John Goodman’s criminal appeals lawyers filed a motion in the Fourth District Court of Appeal case, seeking to have the Court relinquish jurisdiction so as to allow the trial court to consider the issue. The Fourth DCA initially denied Goodman’s motion on March 22, 2013. However, after Goodman filed a Motion for Reconsideration, the Fourth DCA granted the motion, and on April 1, 2013, the Court granted the Motion to Relinquish based on the newly discovered evidence of juror misconduct. The Court’s April 1, 2013, order which can be found on the Fourth DCA docket for case number 4D12-1930, reads as follows:
The motion to reconsider the order denying stay dated March 22, 2013, is denied. The motion for relinquishment based on newly discovered juror misconduct is granted for the defendant to file and present to the trial court a motion based upon the alleged juror misconduct and for the court to allow a juror interview and then to rule on the issue. Such relief is not procedurally barred. See e.g. Marshall v. State, 854 So. 2d 1235, 1242 (Fla. 2003); Davis v. State, 778 So. 2d 1096 (Fla. 4th DCA 2001). Relinquishment is for a period of forty-five days. ORDERED that appellant’s motion filed March 28, 2013, for permission to file a reply to State’s response is hereby granted.
I don’t know about you, but I am glad to see that both Courts have taken the courageous step of inquiring into the serious issue of juror misconduct. Job well done.
You may recall in one of my previous posts that I was waiting for the Supreme Court to issue opinions in a couple of Florida cases involving drug dogs. Well, on March 26, 2013, the Supreme Court issued its opinion in the second case, Florida v. Jardines, No. 11-564, and held that using a drug dog on a homeowner’s front porch to investigate the contents of the home is a “search” within the meaning of the 4th Amendment. If you are a criminal defense or criminal appeals attorney who handles a lot of cases involving the Fourth Amendment, this is a good case to keep in handy. At a mere 10 pages, the majority opinion is a straightforward application of the Fourth Amendment’s property-based protections. In short, the Court affirmed the Florida Supreme Court’s decision, and held that the officer’s act of entering the curtilage with the drug dog for the sole purpose of conducting a drug sniff of the residence violated the Fourth Amendment.
Not surprisingly, the best part of the opinion lies in the unusual composition of the majority and dissenting camps. While Justice Scalia authored the majority opinion, (he was joined by Justices Thomas, Kagan, Ginsburg, and Sotomayor), the dissenters were Justices Alito, Kennedy, Breyer, and Chief Justice Roberts. Justices Kagan, Ginsburg, and Sotomayor issued a concurring opinion, wherein they stated that they would have also affirmed on privacy grounds, following Kyollo v. United States, 533 U.S. 27 (2001).
If you’re a criminal defense attorney in South Florida, you’re well aware that everything is harder for you in Federal court. Not only do your clients have a high likelihood of being detained pre-trial without bond, but the Government might even move, pre-trial, to restrain assets which might otherwise be used to retain counsel. In April, the Eleventh Circuit issued an opinion in United States v. Kaley which not only affirms the right of the Government to restrain assets pre-trial, but also prohibits the defense from challenging the Government’s evidentiary support and legal theory to do so. If you practice in the jurisdiction of the Eleventh Circuit, take a few minutes to read it. And don’t forget to read the concurrence by Judge Edmondson, since it reads more like a dissent than a concurrence. Overall, the opinion gives you a lot to think about in terms of the right to counsel, the right to counsel of choice, and allowing the defense a fair shot at challenging the Government’s use of power.
After reading the opinion, you might feel dejected. After all, here’s yet another pro-Government opinion issued by the Eleventh Circuit. But wait- there might be hope! The United States accepted cert in the Kaley case on March 18, 2013, and issued the following Question Presented:
12-464 KALEY V. UNITED STATESDECISION BELOW: 677 F.3d 1316CERT. GRANTED 3/18/2013LOWER COURT CASE NUMBER: 10-15048QUESTION PRESENTED:Title 18 U.S.C. § 853(e) authorizes a district court, upon an ex parte motion of the United States, to restrain an indicted defendant’s assets that are subject to forfeiture upon conviction. The statute does not provide for a post-restraint, pretrial adversarial hearing at which the indicted defendant may challenge the propriety of the restraints.In United States v. Monsanto, 491 U.S. 600 (1989), this Court rejected a Fifth and Sixth Amendment challenge to the restraint of an indicted defendant’s assets needed to pay counsel of choice but, in a footnote, explicitly left open the question -by then already dividing the circuits -”whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.” Id. at 615 n.10.Since 1989, the circuit courts have continued to wrestle with the issue, producing a firmly entrenched split among the eleven circuits that have addressed it. Acknowledging the widespread conflict, the Eleventh Circuit held that assets needed to retain counsel of choice may remain frozen through trial based solely on a restraining order obtained ex parte, despite a defendant’s timely demand for a hearing to challenge the viability of the charges and forfeiture counts that purportedly justify the pretrial restraint. United States v. Kaley, 677 F.3d 1316 (11th Cir. April 26, 2013) (“Kaley II”), App. 1-31.Thus, the question presented in this petition, which would resolve a split in the circuits,is:When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?
If you’re a criminal defense or criminal appeals lawyer who loves constitutional issues, you may want to take a minute to read through an opinion issued by Florida’s 4th DCA recently. In Erin Atac v. State, No. 4D10-3024, the Court followed the decisions of other States, and held that Atac was not in custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), when he made incriminating statements to police during a barricaded standoff. His conviction for manslaughter was affirmed.
In other news, it’s the 50th anniversary of the monumental decision Gideon v. Wainwright. For an interesting report containing some cool background information, as well as an entire website dedicated to preserving the legacy of the Gideon decision, click here and here. Enjoy!
The Florida Supreme Court recently issued an opinion adopting the recommendations of the JQC, and disciplined the Judge Shea, a Circuit Court Judge for the Ninth Judicial Circuit. I thought I’d pass this along because if you are criminal defense attorney who has cases pending before Judge Shea, or if you handle criminal appeals of any of Judge Shea’s cases, you should probably be aware of some of his inappropriate behavior (that is, if you’re not already). In the opinion, Judge Shea stipulated to five charges:
[1.] In the summer of 2007, Assistant State Attorney Sarah Freeman was sitting in the jury box with two other attorneys making notes on her pretrial docket while [Judge Shea addressed] a matter that was not hers. When [Judge Shea] observed her shake her head, [Judge Shea] got up out of [his] seat, stood behind [his] chair and screamed loudly at her for what [he] perceived as disrespectful conduct.[2.] In 2007, during an off-the-record sidebar argument by Assistant State Attorney Camelia Coward regarding a plea to the bench, [Judge Shea] remarked to the opposing attorney, “Do you know what I do when my wife and I disagree? I just let her talk.” [Judge Shea] continued, “I find that it is best just to let her talk until she’s finished.” [Judge Shea] then indicated that, once she is finished, you can do what you want anyway.
[3.] On August 18, 2009, in State [v.] Habeych Case No. 48-2008-CF-12888-0, [Judge Shea] sentenced Mr. Habeych without his attorney present. This was done over his objection. Mr. Habeych was charged with Trafficking in Hydromorphone, which carries a minimum mandatory sentence. [Judge Shea] imposed the mandatory minimum sentence. [Judge Shea] then told [Mr. Habeych’s] father that if he had any questions that he could go upstairs to the courtroom where the defense lawyer was appearing before another judge.[4.] In State v. Bullock, Case No. 48-2009-CF-8037-0, [Judge Shea] granted a Judgment of Acquittal on one of the counts of an Information alleging Possession of a Firearm by a Convicted Felon. That count had been severed for a separate trial from another count of the Information charging the defendant with Grand Theft of a Motor Vehicle. At the subsequent trial call, on April 12, 2010, when Assistant State Attorney Stephen Brown announced his intention to proceed on the remaining count, [Judge Shea] mistakenly believed the State did not have a good faith basis to proceed on that charge. [Judge Shea] became visibly angry and reprimanded the attorney in open court by saying his duty was to act in an ethical manner and to follow his oath as an attorney rather than merely follow office policy guidelines of the State Attorney’s Office. [Judge Shea] then ordered him into the jury room where [Judge Shea] continued to berate his ethics. To [Judge Shea’s] credit, when [Judge Shea] realized [his] mistake, [Judge Shea] then apologized.[5.] These repeated actions constitute conduct unbecoming a judicial officer and lack the dignity appropriate to judicial office, with the effect of bringing the judiciary into disrepute.